1. Sole Agreement
Unless otherwise agreed in writing these terms and the purchase overleaf (together with the Order) and any contract which may be specified in the overleaf (the Conditions of Purchase) represent the only conditions upon which Absa Bank Limited (Absa) will procure the items or services specified in the overleaf (the Supplies) from the person to whom this order is addressed (Supplier). In the event of any inconsistency between this Order and any contract, the provisions of the contract shall prevail.
2. Definitions
In the Conditions of Purchase the terms below shall have the following meanings, unless it is inconsistent with the context of the Order:
2.1 “ABSA BANK LIMITED” means a public company duly incorporated in accordance with the laws of the Republic of South Africa with its registered address at 3rd Floor, Absa Towers East, 170 Main Street, Johannesburg, 2001, acting for itself and on behalf of its subsidiaries, Affiliates and associated companies (“Absa”);
2.2 “CONDITIONS OF PURCHASE” means this agreement between Absa and the Supplier;
2.3 “DELIVERY” means delivery in accordance with the conditions of the Order at the stated delivery point;
2.4 “SUPPLIES” means the equipment, goods, items or materials to be delivered by the Supplier in terms of the Order;
2.5 “SUPPLIER” means the party with whom Absa places the Order and includes the Supplier’s successors and permitted assignees.
3. Fixed Price
The price stated in the Order shall be regarded as fixed and is invariable and not subject to adjustments unless otherwise agreed between the parties in writing.
4. Delivery Time Or Date
The delivery time or date stated in the Order shall be regarded as fixed and the Supplier shall adhere strictly thereto.
5. Order Control Number
The Order number stated in the Order shall be indicated clearly on all documentation and packaging.
6. Cancellation Of Order
Should the Supplier fail to deliver the Supplies at the time agreed to, or should he not comply with any other essential condition of the Order, Absa shall be entitled to cancel the Order summarily in writing, without any adverse cost implications for Absa.
7. Dispatch Supplies
The Supplier shall ensure that it the Supplies are dispatched to the address stated in the Order and transportation of the Supplies shall be at the Supplier’s risk.
8. Specifications
The Supplier shall ensure that the Supplies shall in all respects be in accordance with the requirements and stipulations set out in the Order. All materials and consumable items shall be new and unused, unless otherwise agreed to in writing.
9. Guarantee
Save for consumables, the Supplier guarantees the workmanship and materials of the Supplies, that the Supplies and any components thereof will be free of any defects for a period of at least 12 (twelve) months after the acceptance thereof by Absa, reasonable wear and tear excepted.
10. Payment
Payment for the Supplies shall be made by Absa against an original tax invoice from the Supplier. Unless otherwise stipulated in the Order, payment for the Supplies shall be made within 30 (thirty) days of receipt by Absa of the original tax invoice, supported by proof of delivery stamped and signed by an authorized Absa employee at the delivery address stated in the Order.
All tax invoices shall contain the registered Value Added Tax (VAT) number of the Supplier, an Order number, item numbers, quantities in respect of which payment is claimed and the amount claimed by the Supplier.
11. Claims
For Payment
All claims shall be submitted in the prescribed manner within 90 (ninety) days after finalization of Delivery, in accordance with clause 10 (Payment), failing which Absa may, in its sole discretion, refuse to accept any claim.
12. Statutory Costs
The price shall be exclusive of VAT and it must appear as a separate line item on the tax invoice.
13. Liability For Patent Rights
The Supplier herewith indemnifies Absa and holds it harmless in respect of any claims arising from infringement or alleged infringement of patents, trademarks and other protective rights of a similar nature.
14. Liability For Costs, Damages Or Expenses
Absa may deduct all costs, damages or expenses, or any other amount for which the Supplier is liable in terms of the contract, from moneys due to or becoming due to the Supplier in terms of any contract between the Supplier and Absa. Absa is herewith irrevocably and in rem suam authorised thereto.
15. Absa's Rights
No amount paid by Absa in settlement of an account, nor postponement of the delivery or completion date as may be granted by Absa, shall affect or prejudice Absa’s rights against the Supplier, nor relieve the Supplier of his obligations, nor be interpreted as approval of the Supplies delivered.
16. Disclosure Of Information
The existence of this Order will not be confidential but the Supplier may not, save for a professional advisor, make known any information concerning this Order to anyone, including the press, without Absa’s written approval.
17. Responsibility for Deviations
The Supplier shall accept responsibility for any deviation from the Order arising from a misunderstanding or incorrect information, irrespective of how it was obtained, except for any incorrect information provided by Absa to the Supplier in writing.
18. Amendment of Order
No amendment or change to the Order shall be permitted without the written approval of Absa.
19. Cession of Contracts
The Supplier may not, without the prior written approval of Absa, cede, delegate, relinquish or transfer to anyone his rights and/or obligations in terms of this Conditions of Purchase. Absa reserves the right to cede, delegate or transfer to a third person its rights or obligations in terms of the Conditions of Purchase, subject to such conditions as Absa may deem appropriate.
20. Packing of Materials
Containers and packing materials are not returned to the Supplier. Packaging of stock items delivered to Absa stores must be clearly labelled with the item number and number of units in each container.
21. Arbitration
Any dispute that may arise in connection with the execution and/or interpretation of an Order is settled finally by one arbitrator, appointed by the parties and in accordance with the Arbitration Act, Act No. 42 of 1965. The parties shall choose Johannesburg as the place of arbitration.
23. Insolvency
Absa may terminate this Order forthwith or, at its option, seek performance by any such appointed person if: (a) the Supplier passes a resolution for its winding-up or a court of competent jurisdiction makes an order for the Supplier to be wound up or dissolved or the Supplier is otherwise dissolved; or (b) an administrator is appointed or an administration order is made in relation to the Supplier or a receiver or an administrative receiver is appointed over, or an encumbrancer takes possession of or sells the whole or part of the Supplier’s undertaking, assets, rights or revenue; or (c) the Supplier is unable to pay its debts or is deemed unable to pay its debts within the meaning of the Insolvency Act; or (d) the Supplier enters into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them or takes steps to obtain a moratorium or makes an application to a court of competent jurisdiction for protection from its creditors. For the avoidance of doubt, Absa shall not be entitled to terminate this Order pursuant to this term where a resolution by the Supplier or court order that the Supplier be wound up is for the purpose of a bona fide reconstruction or amalgamation.
24. After Sales Service
The Supplier shall provide replacement parts necessary to ensure the uninterrupted operation of the Supplies supplied for a period of 5 (five) years from delivery of any particular item of the Supplies and if requested by Absa, it shall make these parts available to a third party maintainer of Absa’s choice at the same price as if the parts had been supplied to Absa. The Supplier undertakes to provide a maintenance service for the Supplies, should Absa so request, on terms to be agreed. If this Order so indicates, the supplier will provide a warranty service for the Supplies to a level agreed with Absa.
25. Notices and Domicilium
Notices under these terms shall be delivered by hand to the relevant address overleaf or sent to them by registered mail or may be served by facsimile to the number overleaf with confirmation by registered mail in which event notice shall be deemed served on receipt by the sender of such confirmation.
26. Law
This Order shall be governed and interpreted in accordance with the law of the Republic of South Africa and shall be subject to the jurisdiction of the South African courts to which the Supplier hereby irrevocably submits but without prejudice to Absa’s right to take proceedings against the Supplier in other jurisdictions.
27. General
Headings are included in this Order for convenience only.
If any term herein be held illegal or unenforceable, the validity or enforceability of the remaining terms shall not be affected.
No failure or delay by Absa to enforce any rights under this Order will operate as a waiver thereof by Absa.
All rights and remedies available to Absa under this Order shall be in addition to, not to the exclusion of, rights otherwise available at law.
