These conditions shall apply to all orders and contracts provided by or entered into by TOBACCO PROCESSORS OF ZIMBABWE (PRIVATE) LIMITED (TPZ) save to the extent that these conditions are specifically varied in writing by TPZ and the Supplier.”
These conditions shall supersede any Supplier terms of contract.
1.1 TPZ hereby appoints the Supplier to render the Supply in accordance with the provisions of the Order and the Supplier accepts such appointment.
1.2 The Supplier shall comply with all laws and regulations when rendering the Supply and performing its other obligations under the Order.
1.3 The provisions of these Conditions which expressly or implicitly contain rights or obligations extending beyond the date of termination of the Order, shall survive the termination of the Order.
1.4 TPZ shall be entitled on not less than 14 (fourteen) days prior written notice, to terminate the Order.
2.1 The Supplier warrants that the Supply will:
2.1.1 be free from defects due to faulty design, materials and workmanship;
2.1.2 be fit for its intended purpose at all relevant times;
2.1.3 comply with the TPZ requirements as detailed in the Order;
2.1.4 comply with all Laws;
2.1.5 be of a good standard and free for defects and carry a warranty of no less than that detailed in the Order and where no warranty is specified the warranty shall be no less that that provided by a reputable supplier of similar goods within the Southern African region; and
2.1.6 comply with Good Industry Practice.
2.1.7 will be made by no later than the delivery date detailed in the Order.
2.2 The Supplier warrants that it has the expertise, experience and capability, including sufficient and competent employees to render the Supply efficiently and expeditiously and in accordance with the provisions of the Order.
2.3 The Supplier acknowledges that the Supply includes all work:
2.3.1 specifically referred to in the Order; and
2.3.2 which is otherwise necessary or desirable for the proper execution and completion of the Supply and for the proper performance of the Supplier’s obligations under the Order.
2.4 The Supplier warrants that it has the power to execute, deliver and perform its obligations under the Order and all necessary corporate and other action has been taken to authorise that execution, delivery and performance.
2.5 The Supplier acknowledges that
2.5.1 it has examined the TPZ premises and its surroundings;
2.5.2 it has examined all other information relevant to the risks, contingencies and other circumstances having an effect on its obligations under the Order;
2.5.3 it has examined the Order and all information contained therein;
2.5.4 it has acquainted itself with all laws relevant to the discharge of its duties and obligations in terms of the Order;
2.5.5 it has entered into the Order based upon its own investigations, examinations and determinations;
2.5.6 it is not relieved of its obligations under the Order, and does not have any remedy against TPZ, by reason of the existence or occurrence of any matter or thing not anticipated by the Supplier as at the date of the Order and which may not be contemplated by the Order.
2.6 The Supplier undertakes to make good, by re-performing the Supply, repair or replace defects in the Supply arising from faulty design, materials and workmanship for the warranty period which period shall be that specified in the Order and where no warranty period is specified in the Order the warranty shall be no less that that provided by a reputable supplier of similar goods within the Southern African region.
2.7 All re-performing, repair and replacement costs, including transport and handling, will be the sole responsibility of the Supplier.
2.8 The Supplier undertakes to provide to TPZ, unfettered access to all of its records and documentation in respect of the Supply, as and when requested by TPZ.
3.1 Where the Supplier, its employees or its contractors or agents enter any TPZ premises such entry shall be subject to the TPZ Safety Health and Environmental Policy from time to time and the Supplier shall be responsible to ensure that it, its employees or its contractors or agents are away at all times of such Policy and abide by the same.
3.2 The Supplier may not, in rendering the Supply, permit any disruption to any activities of TPZ or its employees, contractors or agents being conducted on the TPZ premises.
3.3 The Supplier may not allow any person not directly connected with the provision of the Supply into the TPZ premises without TPZ’s Representative’s prior written approval.
3.4 The Supplier is responsible for the care of all items of any nature brought on to the TPZ premises by the Supplier, its employees or its contractors or agents and TPZ shall have no liability for the loss of or damage to the same.
3.5 Supplier must promptly make good loss from, or damage to, any part of the TPZ premises and/or TPZ’s property caused by the Supplier, its employees or its contractors or agents
3.6 TPZ shall only provide such amenities, facilities and supply which are specifically agreed to and set out in the Order for use by the Supplier for rendering the Supply.
3.7 TPZ is not liable for any damage, expense, loss or liability of any nature suffered or incurred by the Supplier, its employees or its contractors or agents in relation to the provision of any amenities, facilities and supply by TPZ to the Supplier.
3.8 The Supplier, its employees or its contractors or agents shall immediately comply with instructions of TPZ’s security or health or safety personnel when on the TPZ premises.
3.9 The Supplier shall ensure that it and, its employees or its contractors or agents do not bring on to the TPZ premises any article of a dangerous nature or which may cause a fire risk.
3.10 The Supplier shall ensure that no person in any way involved in the Supply including the delivery thereof is under the influence of illegal drugs or alcohol.
3.11 The Supplier shall not permit any person known or suspected to be carrying the Covid-19 virus to enter the TPZ premises.
3.12 The Supplier shall provide a proper supply of health and safety equipment to its employee’s agents and contractors involved in the Supply and shall ensure that such persons are properly trained to and do utilize such health and safety equipment in the correct manner.
3.13 The Supplier shall provide a safe and healthy environment to its employees, agents and contractors involved in the Supply and shall ensure that such persons are properly trained to and do utilize such health and safety equipment in the correct manner
3.14 The Supplier shall ensure no child labour is involved in the Supply and shall ensure that its agents, contractors or any such person within the extensions of the Supply upholds the same obligation.
3.15 The Suppler shall ensure that all vehicles and equipment entering TPZ premises or involved in the Supply are operated by competent, licenced sober operators who have valid licences or permits and have the necessary expertise and skill to operate the vehicles or equipment.
3.16 The Supplier shall permit TPZ or its representatives to conduct any searches of the person, possessions and vehicles of the Supplier its employees’ contractors and agents which TPZ considers necessary and immediately remove from the TPZ premises any employees who are found in the possession of or under the influence of alcohol or any illegal or unprescribed drugs or who will not agree to a search as referred to this clause and promptly replace any such employees, contractors or agents at no additional cost to TPZ.
3.17 The supplier shall immediately carry out an in-depth investigation and notify, in writing, TPZ’s of any incident occurring on TPZ premises involving The Supplier, its employees or its contractors or agents.
4.1 All Equipment used by the Supplier for the performance of its obligations in terms of the Order shall at all relevant times:
4.1.1 be in good working order and maintained in accordance with relevant manufacturers specifications or guidelines and Good Industry Practice;
4.1.2 comply with TPZ’s standards; and
4.1.3 be insured by the Supplier at its sole cost and expense.
4.2 During the operation of the Order the Supplier shall take full responsibility for the care and maintenance of the Equipment and shall make available the necessary supervisors and mechanics to effect repairs to the Equipment at all material times.
4.3 TPZ shall not be liable for any loss, damage, theft or breakdown to the Equipment which occurs:
4.3.1 in the rendering of the Supply; and/or
4.3.2 during use or temporary storage of the Equipment at the TPZ premises, or for any other reason whatsoever and the Supplier indemnifies TPZ in this regard.
5.1 If a Supplier engages a sub-contractor, it is their sole responsibility to manage the performance of the subcontractor to ensure the quality and timeliness of its performance meet the requirements, and comply with the provisions, of the Order in all respects.
5.2 The Supplier’s obligations under the Order are not lessened or otherwise affected by subcontracting the performance of any of its obligations, and the Supplier remains ultimately responsible to TPZ under the Order.
5.3 The Supplier must ensure that each subcontract entered into by the Supplier contains:
5.4.1 a covenant (in a form acceptable to TPZ) which will entitle the Supplier to novate the subcontract to TPZ, at no cost to the Client, if the Order is terminated; and
5.4.2 a term which ensures TPZ obtains the benefit of any warranties provided to the Supplier by the subcontractor.
6.1 TPZ may at any time request the Supplier to change the supply.
6.2 If TPZ requires a change to the supply, TPZ will issue to the Supplier a written document advising the Supplier of the scope of the proposed change to the supply and requiring the Supplier within the period of time stated to:
6.2.1 provide an estimate of the cost of the proposed change and the resultant adjustment of the price detailed in the Order.
6.2.2 provide an estimate of the likely effect of the proposed change on the time to be taken to complete the Order.
6.3 If TPZ accepts the Supplier’s proposed cost and time to complete the Order, such acceptance shall be put in writing, signed by the Procurement Manager of TPZ and shall not be binding on TPZ until it is so signed.
7.1 The Supplier must complete the Order by the delivery date detailed in the Order.
7.2 The Supplier accepts the risk of all increased costs resulting from delay in the provision of the Supply and the performance of its obligations under the Order with the exception of a delay directly caused by:
7.2.1 a breach by TPZ of any of its obligations under the Order, or
7.2.2 a Force Majeure Event.
8.1 If a Force Majeure Event occurs, the affected Party must immediately give the other Party a written notice containing the:
8.1.1 full particulars of the Force Majeure Event including its nature and likely duration.
8.1.2 obligations of the Party, the performance of which is prevented or delayed.
8.1.3 nature and extent of the effects of the Force Majeure Event on those obligations.
8.2 The Party affected by a Force Majeure Event must:
8.2.1 use its best commercial endeavours to remove the effect of that Force Majeure Event on the performance of its obligations under the Order
8.2.2 report to the other Party in writing (on a weekly basis unless otherwise agreed) of the steps taken by it to remove the effect of that Force Majeure Event.
8.3 The obligations of the Party affected by the Force Majeure Event are suspended, to the extent that they are affected by the Force Majeure Event, from the date the affected Party gives the written notice under this clause until cessation of the Force Majeure Event, provided that if the Force Majeure Event results in the suspension of such Party’s obligations for more than 30 (thirty) days, the other Party shall be entitled to terminate the Order on 7 (seven) days written notice to the Party affected by the Force Majeure Event.
8.4 On the cessation of the Force Majeure Event the Party affected by the Force Majeure Event must:
8.4.1 immediately give written notice to the other Party of the cessation of the Force Majeure Event.
8.4.2 resume performance of the obligations suspended as a result of the Force Majeure Event.
9.1 In consideration for the proper provision of the Supply, TPZ shall pay the Supplier the price detailed on the Order.
9.2 The Supplier must submit to TPZ a Valid Tax Invoice (the Invoice) detailing the amount due to be paid in terms of the Order and accompanied by a detailed statement.
9.3 The Invoice shall be in the currency detailed in the Order and shall provide details of the Supplier’s account to which payment shall be made.
9.4 TPZ shall pay the invoiced amount, where such is due and payable in terms of the Order, by electronic bank transfer into the Supplier’s bank account by the end of the month in which the invoice is received where such invoice is received before the 25th day of the month.
9.5 Invoices received after that date shall be paid by the last day of the following month.
9.6 Payment terms will be based on 9.4 and 9.5 above unless separate arrangements are made by the Supplier at the point of order proposal, order acceptance and any such arrangements must be signed off by the Procurement terms.
9.7 The Supplier must ensure a valid ITF263 is submitted to TPZ as it becomes available or advise TPZ in writing of lack thereof.
9.8 TPZ may set-off or deduct from any amounts due to the Supplier any money due or which may become due from the Supplier to TPZ and any withholding taxes that TPZ may be required to deduct.
9.9 The Supplier shall pay all taxes including VAT, payroll tax, levies, duties and assessments due in connection with the Supply.
The Supplier hereby indemnifies the Indemnified Parties and holds TPZ harmless against all damage, expense (including legal fees and expenses on a legal practitioner/client basis), loss (including financial loss) or liability of any nature suffered or incurred by TPZ arising out of the provision of (or failure to provide) the Supply or failure of its other obligations under the Order (or any of them)
11.1 Should TPZ consider that the Supplier is in breach of the Order, TPZ may give the Supplier:
11.1.1 a written notice specifying the date (being 7 (seven) days after the date of the written notice or such longer period as TPZ may state in the written notice, in its discretion) by which the Supplier must rectify the breach to the extent that the breach is capable of rectification; or
11.1.2 if the breach is incapable of rectification, a written notice specifying TPZ’s requirements to mitigate the effects of that breach.
11.2 If TPZ gives the Supplier a written notice referred to in clause 11.1:
11.2.1 the Supplier must comply with the written notice; and
11.2.2 the Supplier must, within 3 days of receipt of notice from TPZ, give TPZ a written program for the rectification of the breach or mitigation of the effects of the breach, as the case may be, in accordance with the terms of TPZ’s written notice.
11.3 If the Supplier fails to rectify the breach or overcome or mitigate the effects of the breach, as the case may be, in accordance with the terms of a written notice referred to in clause 11.1, then without limitation to the rights of TPZ in terms of clause 11.4:
11.3.1 TPZ may take any action it considers appropriate to:
11.3.1.1 rectify that breach; or
11.3.1.2 mitigate the effects of the breach;
11.3.2 The Supplier must indemnify TPZ against any damage, expense, loss or liability it suffers or incurs in respect of that action.
11.4 The Supplier must pay compensation to TPZ for any damages suffered by TPZ arising from any breach referred to in clause 11.1 (irrespective of whether the breach is remedied or not), such compensation:
11.4.1 to be agreed by the Parties in writing within 14 days of TPZ advising the Supplier in writing of the amount claimed by it; or
11.4.2 failing agreement, the compensation shall be decided in accordance with clause 12.
11.5 TPZ may terminate the Order with immediate effect on written notice if the Supplier has not complied with a written notice given under clause 14.1 and the Supplier shall immediately hand over to TPZ all documentation, manuals and instructions in respect of any items supplied in whole or part in terms of the Order.
11.6 Either Party may terminate the Order, with immediate effect, by written notice to the other Party if the other Party is placed under a provisional or final order of liquidation or judicial management or commences a voluntary winding up or takes any action (or a third party takes action against that party) for business rescue.
11.7 The Order may be terminated summarily by TPZ, by written notice to the Supplier, if the Supplier:
11.7.1 fails to adhere to any applicable Laws as required herein;
11.7.2 or its employees, contractors or agents in the opinion of TPZ, engage in unlawful practices such as corruption, fraud, theft or child labour in connection with rendering the Supply; or
11.7.3 or its employees render the Supply in a manner which in TPZ’s opinion, poses a serious health and/or safety and/or environmental risk to TPZ, its employees or suppliers or the Supplier’s employees; or
11.7.4 undergoes a change in control (unless the Supplier has obtained the prior written consent of TPZ), without prejudice to the right of TPZ to claim from the Supplier any losses, damages and expenses that TPZ may have incurred or will incur as a result of the conduct described in this clause.
12.1 All disputes or differences in respect of the Order or the Supply must be resolved in accordance with this clause 12.
12.2 Written notice of any dispute or difference must be given to the other Party, setting out:
12.2.1 the legal basis of the claim;
12.2.2 the facts upon which the claim is based; and 12.2.3 detailed particulars of the quantification of claim and/ or copies of correspondence relevant to the claim.
12.3 If TPZ’s Representative and the Supplier’s Representative are unable to resolve the dispute or difference within 10 (ten) days after the giving of the notice referred to in clause 12.2, either Party may refer the dispute or difference to the managing directors, or appropriate employees nominated by the managing directors, of the Parties for resolution.
12.4 If the managing directors of the Parties or their nominees are unable to resolve the dispute or difference within 10 (ten) days of its referral to them, either Party may, after giving written notice to the other Party of its intention to do so, refer such dispute or difference to arbitration in accordance with the provisions of clause 13.
12.5 Notwithstanding the other provisions of this clause, while a dispute or difference is being determined, the Supplier must:
12.5.1 continue to provide the Supply;
12.5.2 perform its other obligations under the Order; and
12.5.3 comply with all directions of TPZ.
13.1 Any dispute submitted to arbitration, shall be dealt with in accordance with this clause 13 and the Arbitration Act Chapter 7:15, provided that the provisions of this clause 13 shall not preclude either Party from applying to a court of competent jurisdiction for urgent interim relief pending the outcome of the arbitration.
13.2 The arbitrator shall, be an appropriately qualified independent person; agreed upon in writing by the Parties; provided that should the Parties fail to agree in writing within 3 (three) days after the date of the notice referred to in clause 12.4, on the nature of the dispute and/or the identity of the arbitrator, the arbitrator shall be appointed at the request of either Party by the Chairman of the Commercial Arbitration Centre in Harare or its successor-in-title upon written request by either Party which request shall be copied to the other party.
13.3 The arbitration shall be held in English at a venue in Harare and in accordance with formalities determined by the arbitrator, and may be held in an informal and summary manner.
13.4 The arbitrator shall have the power, inter alia, to do or to allow any of the following to be done:
13.4.1 investigate any matter which he considers appropriate in connection with the dispute and, for that purpose, shall have the widest powers of investigation;
13.4.2 summon as a witness any person who may be able to give relevant evidence and interview, question or cross-examine under oath such person;
13.4.3 interview, question and cross-examine under oath any witness;
13.4.4 record evidence;
13.4.5 make an award regarding the amount and responsibility for payment of legal fees and the arbitrator’s remuneration;
13.4.6 call for the assistance of any other person who he deems necessary to assist him in arriving at a decision;
13.4.7 make such temporary or final award as a High Court would be competent to make in the circumstances including an award regarding the amount, and responsibility for payment, of legal fees and the arbitrator’s remuneration on such scale as he deems appropriate in the circumstances;
13.4.8 exercise any additional powers which are conferred upon him in terms of the Arbitration Act [Chapter 7:15],
13.4.9 and to allow or cause any of the aforementioned things to be done.
13.5 The arbitration shall be held as quickly as possible with a view to it being completed within 30 (thirty) days after the date of the notice referred to in clause
13.6 Immediately after the arbitrator has been appointed, either Party shall be entitled to call upon the arbitrator to fix a date and place when and where the arbitration proceedings shall be held and to settle the procedure and manner in which the arbitration proceedings will be held.
13.7 Any order or award that may be made by the arbitrator:
13.7.1 shall be final and binding;
13.7.2 shall be carried into effect; and
13.7.3 may be made an order of any competent court.
13.8 Save to the extent strictly necessary for the purposes of the arbitration, neither Party shall disclose to any third Party any information relating to the arbitration or the award.
13.9 This clause 13:
13.9.1 constitutes an irrevocable consent by the Parties to any proceedings in terms of hereof;
13.9.2 Is severable from the other provisions of the Order and shall remain in effect notwithstanding the termination or invalidity for any reason of the Order.
14.1 The Supplier shall not, and must ensure that its employees, contractors and agents do not, without the prior written approval of TPZ, either during the provision of the Supply or after the expiry or earlier termination of the Order, disclose or give to any person any Confidential Information.
14.2 The Supplier must ensure that all documentation and anything recording, containing, setting out, or making reference to the Supply is used, copied, supplied or reproduced only for the purposes of rendering the Supply and its other obligations under the Order unless it has obtained the prior written approval of TPZ.
14.3 The Supplier must on, or as soon as practicable after completion of the Supply, or the earlier termination of the Order deliver to TPZ everything recording, containing, setting out or making reference to the Supply, including all documentation.
15.1 Unless expressly stated otherwise in the Order, all notices (including but not limited to certificates, consents, approvals, waivers and other communications), in connection with the Order must be in writing, signed by the sender (if an individual) or an Authorised Officer of the sender and marked for the attention of the person identified in the Order or, if the recipient has notified otherwise, then marked for attention in the way notified. The Supplier shall, for purposes of this Agreement, provide an address of service in the Republic of Zimbabwe.
15.2 Notices must be:
15.2.1 hand delivered by recorded hand delivery at the address detailed in the Order; or
15.2.2 sent by email to the email address set out or referred to in the Order;
15.3 Notices take effect from the time they are received unless a later time is specified.
15.4 If sent by email, notices are taken to be received at the time which they are sent from the email of the sender.
15.5 Despite the provisions of clauses 15.3 and 15.4, if notices are received after 4.00pm in the place of receipt or on a non-business day of the recipient, they are to be taken to be received at 9.00am on the next business day of the recipient.
16.1 The Order is governed by the law in force in the Republic of Zimbabwe and subject to clause 13 each Party submits to the non-exclusive jurisdiction of the courts in the Republic of Zimbabwe.
16.2 The Order constitutes the entire agreement between the Parties, and no representation by either of the Parties or their agents, whether made prior or subsequent to the signing of the Order, shall be binding on either of the Parties unless in writing and signed by both the Parties hereto.
16.3 No variation, alteration or consensual cancellation of the Order or any of the terms thereof, shall be of any force or effect, unless in writing and signed by the Parties hereto.
16.4 No waiver or abandonment by either party of any of its rights in terms of this Agreement shall be binding on that Party unless such waiver or abandonment is in writing and signed by the waiving Party.
16.5 No indulgence, extension of time, relaxation or latitude which any Party (“the grantor”) may show, grant or allow to another (“the grantee”) shall constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or estopped from exercising any of its rights against any grantee which may have arisen in the past or which might arise in the future.
16.6 Unless the context indicates otherwise, the rights and obligations of any Party arising from the Order shall devolve upon and bind its successors-in-title.
16.7 Prior drafts of the Order shall not be admissible in any proceedings as evidence of any matter relating to any negotiations preceding the signature of the Order.
16.8 The Parties agree that they will do all things and sign all documents necessary to give effect to the terms of the Order and to all transactions deriving therefrom.