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MTN UGANDA PURCHASE ORDERS

The standard terms and conditions of purchase below are applicable to every purchase order issued by MTN. However, in some circumstances due to the nature of the goods/services, supplemental terms and conditions of purchase have to be developed and agreed to between buyer and supplier. Supplier’s electronic acceptance, acknowledgement of this Purchase Order or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. If a contract agreement covering procurement of products or services as per Purchase Order exists, the terms of such contract agreement shall prevail over any inconsistent terms herein.

MTN declares that this order has been awarded on a competitive and open business basis, with the full understanding that the order has been placed without any commissions or any other form of inducement (bribe) being paid by the supplier to any member of MTN staff. Where there is evidence of malpractices involving MTN staff in securing this order then MTN will immediately report the matter to the appropriate regulatory and statutory authorities for legal redress. The supplier by agreeing to supply the goods and services to MTN shall also have agreed to pay back to MTN the amount, twice of the purchased value, as a penalty for any proven violations contained within the Clause.
 
1. Goods and services

The goods and services described in this Purchase Order (the "PO") are provided by Supplier, subject to the following terms and conditions. Supplier agrees to be bound by and to comply with all such conditions. Other terms and conditions are not binding unless accepted in writing.

Time is of essence in Supplier’s performance of its obligations as stipulated in the Purchase Order. Supplier will immediately notify MTN Procurement if Supplier’s timely performance under the Purchase Order is delayed or is likely to be delayed. MTN’s acceptance of Supplier’s notice will not constitute MTN’s waiver of any of Supplier’s obligations.

If Supplier delivers Goods and Services after delivery date, MTN may reject such Goods and Services.

MTN will hold any Goods and Services rejected under this Purchase Order at Supplier’s risk and expense, including storage charges, while awaiting Supplier’s returns shipping instructions. Supplier will bear all return shipping charges, including without limitation, insurance charges MTN incurs on Supplier’s behalf. MTN may, in its sole discretion, destroy or sell any rejected Goods and Services for which MTN does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, towards any storage charges.

 

Supplier will preserve, pack, package and handle the Deliverables and Products so as to protect it from loss or damage and in accordance with best commercial practices in the absence of any specifications MTN may provide. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous Goods and Services, including, without limitation, with respect to its accompanying information, packing, labeling reporting, carriage and disposal.

Supplier will include with each delivery of Products a packing list identifying the Purchase Order number, part number for each of the Products, and the date of shipment.

Unless MTN Procurement expressly instructs otherwise, Supplier will deliver all Goods and Services to MTN Warehouse at the address set forth in the Purchase Order.

2. Purchase price and payment

Unless otherwise specified in the Purchase Order, the price for the Goods and Services includes tax and other charges such as shipping and delivery charges. Supplier will at MTN’s request break-out from the price all such tax and other charges in its invoice.

MTN will pay Supplier the price in accordance with payment terms set forth in the Purchase Order following the later of: (1) the Delivery Date; (2) the date of MTN’s acceptance of all the Goods and Services; or (3) MTN’s receipt of a properly prepared invoice. A properly prepared invoice must include the Purchase Order number. Payments will be in the currency as indicated on the Purchase Order. All prices shown in this Purchase Order are firm and are not subject to adjustment.

In principle, MTN does NOT provide advance payments against Purchase Orders. Suppliers are encouraged to consult with their bankers for funding requirements. In exceptional cases, where MTN decides to provide advance payment, such payment must be covered by an acceptable form of surety provided by the Supplier.

3. Method of shipment or packing

Goods are packaged in a manner which assures that they are suitable protected against deterioration and contamination. All goods are delivered to the delivery address specified in the Purchase Order. Title and risks remain with Supplier until delivery.

4. Inspection and rejection

The goods and services furnished are exactly as specified in the PO. They are free from all defects in design. The goods and services are subject to inspection and verification test acceptance by MTN at any time and place.

 
MTN may reject any or all Goods and Services which does not conform to the applicable requirements within 10 business days after delivery. At MTN’s discretion, non conforming Goods and Services may be returned to Supplier at their cost.

 
5. Changes

MTN may make changes to this Purchase Order including to drawings and specifications for specially manufactured goods, place of delivery, by giving notice to Supplier. If such changes affect the cost of or the time required for performance of this Purchase Order, an equitable adjustment in the price or date of delivery or both will be made.

No change by Supplier is allowed without written approval of MTN. Any claim of Supplier for an adjustment under this Article must be made in writing within seven (7) days from the date of receipt by Supplier of notification of such change. Nothing in this Article excuses Supplier from delivering the goods and services described in this Purchase Order.

6. Warranty

Supplier warrants to MTN that goods supplied under this PO are free from defects in material, and design, suitable for the purposes intended implied, in compliance with all applicable specifications. All services are performed in accordance with current, sound and generally accepted industry practices by qualified personnel trained and experienced in the appropriate fields.

7. Assignment and subcontracting
 
Supplier may not assign any of its rights or delegate any of its obligations under the Purchase Order without MTN’s prior written consent, which MTN will not unreasonably withhold. MTN may, at its option, void any attempted assignment or delegation undertaken without MTN’s prior written consent.

 

Supplier may not subcontract any of its rights or obligations under the Purchase Order without MTN’s prior written consent. If MTN consents to the use of a subcontractor, Supplier will: (1) guarantee and will remain liable for the performance of all subcontracted obligations; (2) indemnify MTN for all damages and costs of any kind caused by acts and omissions of Supplier’s Subcontractors and (3) make all payments to its subcontractors.

 

If Supplier fails to timely pay a Subcontractor for Goods and Services performed, MTN will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and hold MTN harmless for all damages and costs of any kind, without limitation, incurred by MTN and caused by Supplier’s failure to pay a Subcontractor.

 

 

To the extent allowed by applicable law, no person who is not a party to Purchase Order shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom or otherwise.

 
8. Termination

The Purchase Order will remain in effect with respect to any SCOPE OF WORK already issued prior to expiration of the term of the Purchase Order until such SCOPE OF WORK is either terminated or the Goods and Services is completed and accepted.

MTN may terminate this Purchase Order, any SCOPE OF WORK, or both at any time, for no reason or for any reason, upon 15 days written notice to supplier. Upon receipt of notice of such termination, Supplier will inform MTN of the extent to which it has completed performance as of the date of the notice, and Supplier will collect and deliver to MTN whatever Goods and Services then exists. MTN will pay Supplier for all Goods and Services performed and accepted through the effective date and termination, provided that MTN will not be obliged to pay any more than the payment that would have become due had Supplier completed and MTN had accepted the Goods and Services. MTN will have no further payment obligation in connection with any termination.

Either party may terminate this Purchase Order, any SCOPE OF WORK or both, immediately by delivering written notice to the other party for any material breach not cured within 30 days of receipt of notice of the breach. MTN shall have no further payment obligation to Supplier under any terminated SCOPE OF WORK if MTN terminates the SCOPE OF WORK.

Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order shall survive the expiration or termination of the Purchase Order.

9. Confidentiality

If MTN and Supplier have entered into a Non-Disclosure Agreement (“NDA”) which covers disclosure of confidential information under the Purchase Order, and if the term of the NDA expires before the expiration or termination of the Purchase Order, then the term of the NDA shall be automatically extended to match the term of the Purchase Order.

The parties shall treat the terms, conditions and existence of the Purchase Order as Confidential Information as defined in the NDA.

Supplier shall obtain MTN’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to MTN.


10. Indemnification

Supplier shall defend, indemnify and hold MTN harmless from and against any and all Claims as incurred, arising out of or in connection with any (1) act or omission of Supplier (including its Subcontractors) in the performance of the Goods and Services; or (2) any infringement of a third party’s Intellectual Property Rights or any other rights.

11. Insurance
 
Supplier will secure and maintain insurance providing coverage for liabilities to third parties for damage to property in amounts sufficient to protect MTN in the event of such damage.
 
12. Assignment

This Purchase Order is assignable by MTN. This Purchase Order may not be assigned by Supplier without written approval of MTN. In case such consent is given, Supplier remains liable as if no such transfer has been made.

13. Default

A party is in default of its obligations under this Purchase Order if any of the following events occur, namely:

   1. such party is adjudged bankrupt or insolvent by a court of competent jurisdiction, or otherwise becomes insolvent, as evidenced by its inability to pay its debts generally as and when they become due; or
   2. such party is in default of its obligations hereunder and fails to cure such default within thirty days of written notice from the other party, or if such default cannot be cured within thirty days, within such longer period as may be reasonable, provided the defaulting party commences promptly and diligently proceeds with curing the default.

Upon the occurrence of any of the above events, the party not in default may, by written notice to the defaulting party, terminate this Purchase Order without prejudice to any other right or remedy available to it at law and without liability for such termination. Neither the Supplier nor MTN shall be liable to the other for indirect damages, for loss of profit or for damages arising from loss of use or production.

14. Termination

This Purchase Order may be terminated or suspended by MTN in whole or in part. MTN then delivers to the Supplier a written notice specifying the extent to which performance and/or the deliveries of goods and services under this Purchase Order is terminated and/or suspended and the date upon which such action shall become effective. In the event of such action, MTN shall

pay Supplier for the goods and services satisfactorily provided to the effective date of termination or suspension. In this case, Supplier may submit a proposal to MTN for equitable increase in the prices to account for costs of demobilization and direct termination expenses. The termination of this Purchase Order shall discharge any further obligations of either party.

15. Force Majeure

Supplier shall not be liable for default or delay due to causes beyond Supplier's reasonable control and without fault or negligence on the part of Supplier. The Supplier gives MTN prompt notice in writing when any such cause appears likely to delay deliveries and/or performances of services and takes appropriate action to avoid or minimize such delay. If any such default or delay threatens to impair Supplier's ability to meet delivery requirements for its material, supplies and services, MTN shall have the right, without any liability to Supplier, to cancel the portion or portions of this Purchase Order so affected. MTN shall not be liable for default or delay in the performance of its obligations due to cause beyond its reasonable control.

16. Governing Law
 
The validity, interpretation, and performance of this Purchase Order shall be controlled by and construed under the laws of the Republic of Uganda.
 

17. Penalty clause(s)

MTN has the right to impose penalties for late delivery of Goods and Services. The Supplier is compelled to deliver Goods and Services within the accepted delivery timeframe agreed to. Delivery of Goods and Services

This is also reflected on the Purchase Order. As a general rule all suppliers of goods, equipment, and services who deliver them late shall be subject to a penalty charge that varies from 1% of to a maximum of 5% within a period of 28 calendar days. The days duration includes Saturdays, Sundays and Public Holidays.

The penalties to be charged shall be on the percentage (%) of order value and shall be calculated as follows:-

 

Days late
   
Percentage penalty

1 – 7
   

1.0%

8 - 14
   

2.5%

15 - 21
   

4.5%

22 – 28
   

5.0%

 
If delivery is delayed by over 28 days then MTN has the right to irrevocably cancel the order, without cost to MTN. Penalties shall be recovered from Suppliers either by Credit Note or deducted from the Purchase Order value when payment is due