PURCHASE ORDER TERMS AND CONDITIONS

1.    DEFINITIONS

The following words shall have the meanings set against them in this Purchase Order:

(a)     "Days" means calendar days unless otherwise expressly provided in the Purchase Order

(b)     "Goods" means the equipment, firmware, software or other items to be purchased from the Supplier as identified on the face of this Purchase Order.

(c)     "Purchase Order” or “PO" means this Purchase Order constituting an offer by the Company to the Supplier to purchase the Goods and/or Services from the Supplier and which if accepted in accordance with Clause 2 shall be deemed to be an agreement between the Company and the Supplier on the terms set out herein.

(d)     "Services" means the Services to be provided by the Supplier as identified on the face of this Purchase Order.

(e)     “The Company” means Wananchi Group Kenya Limited.

(f)      "The Supplier" means the supplier identified on the face of this Purchase Order which expression shall, where the context so admits include the Supplier's personal representatives or successors in title and assigns.

(g)     “Parties” means both the Company and the Supplier collectively and "Party” means each of them individually.

2.    STATUS OF THESE TERMS AND CONDITIONS

2.1          These Terms and Conditions and other matters appearing on the Purchase Order shall apply to the purchase by the Company from the Supplier of all Goods and/or Services set out on the Purchase Order to the exclusion of all other terms and conditions, including any terms or conditions which are implied by trade, custom, practice or course of dealing or which the Supplier may purport to apply. However, the terms and conditions in any separately negotiated and signed written contract entered into by the parties in respect of the Goods and/or Services identified in the Purchase Order shall overrule these Terms and Conditions.

2.2          The Purchase Order constitutes an offer by the Company to purchase the Goods and/or Services specified therein in accordance with these Terms and Conditions. The Purchase Order and these Terms and Conditions shall be deemed to be accepted by Supplier on the earlier of:

a.        the Supplier's written acceptance of the Purchase Order; or

b.       the Supplier doing any act consistent with fulfilling the terms of the Purchase Order; or

c.        the expiry (without objection) from the Supplier of a period of 24 hours from the date of receipt of the Purchase Order by the Supplier-receipt shall be deemed to have occurred as provided in clause 19 (Notices) of this Purchase Order,

at which point the Agreement shall come into existence.

2.3          The Company will not be liable in respect of any Purchase Order(s) or instructions other than those issued or confirmed on its official Purchase Order documents, whether issued in hard copy or by facsimile (in which case such documents shall be valid only when duly signed), or issued electronically in accordance with these Terms and Conditions.

2.4          If this Purchase Order shall be deemed to be an acceptance of a prior offer by the Supplier, such acceptance shall be limited to the express terms of this purchase order.

3.    CHANGES TO PO REQUIREMENTS

The Company may at any time by written notice, make changes to the Goods or Services, including but not limited to the quantities ordered. The price specified in the Purchase Order shall be adjusted by mutual agreement if changes to the description or price of the Goods and/or Services are so made.

4.    TERMINATION

Without prejudice to any other right The Company reserves the right to terminate the Purchase Order, or any part hereof, for its sole convenience upon written notice to the Supplier. In the event of such termination, the Supplier shall immediately stop all work hereunder and immediately instruct any and all of its suppliers and subcontractors to cease work. The Supplier shall be paid a percentage of the purchase order price reflecting the percentage of the Services performed or Goods delivered and accepted prior to the notice of termination The Supplier shall not be paid for any work performed or costs incurred which reasonably could have been avoided following the note of termination.

5.    THE GOODS

5.1  Delivery and Delays

5.1.1            The Supplier shall ensure that any delivery of Goods is accompanied by a delivery note outlining, inter alia, Purchase Order number, the date of the PO, units delivered, conformity to specifications ordered and the contents therein.

5.1.2            The time for the delivery of the Goods or the performance of the Services shall be of the essence under this Purchase Order. If delivery of the Goods or performance of the Services is not made within the agreed delivery timelines, the Company shall have the right without liability and without prejudice to its other rights and remedies in law, to take one or more of the following actions:

(a)           direct expedited delivery of Goods for which the Supplier shall bear all increased costs, including but not limited to, increased transportation charges and risk of loss;

(b)           direct acceleration of the Services for which the Supplier shall bear all increased labour and other acceleration costs;

(c)           terminate this Purchase Order for default; or

(d)           claim liquidated damages calculated as set out on the face of this Purchase Order or such other documentation forwarded to the Supplier by the Company;

(e)           Recover from the Supplier any expenditure reasonably incurred by the Company in obtaining substitute Goods or Services from another supplier.

5.2  Inspection and Acceptance

5.2.1            All Goods and Services shall be received subject to the Company's right of inspection, acceptance and/or rejection. No Goods shall be deemed to have been accepted if the Company shall not have inspected them on delivery or within thirty (30) days of the discovery of a latent defect.

5.2.2            For Project related deliveries, acceptance shall be in accordance with Project Terms and Conditions

5.2.3            Goods rejected for whatever reason shall be returned to the Supplier at the cost and risk of the Suppler.

5.2.4            If the quantity of Goods delivered by the Supplier is in excess of the amount ordered by the Company under this Purchase Order, the Company shall not be required to pay for the excess Goods. Such excess quantity shall be returnable to the Supplier at the cost and risk of the Supplier.

5.3  Drafts, Trials and/or Samples

Drafts, Trials and/ or Samples relating to the goods and/or materials and/or referred to in this Purchase Order shall not be accepted by the Company unless otherwise agreed. The Company shall be under no obligation to pay for such drafts, Trials and/or samples.

5.4  Quality

Text Box: 5.3.1All goods supplied shall comply in all respects with the specifications, any express or implied warranties or representations made by the Supplier and any terms or conditions implied by law. Any exclusion or limitation of such provision or of the Supplier's liability for breach thereof is hereby expressly rejected by the Company.

Text Box: 5.3.2The Supplier shall satisfy itself that it understands the Company's requirements in order to comply with the obligations contained in this Purchase Order. The cost of any modification necessary to meet the special requirements stated on the face of the Purchase Order, if any, shall be borne by the Supplier which shall in addition compensate the Company for any loss suffered by the Company as a result of any delay whilst such modifications are made.

Text Box: 5.3.3For the purpose of satisfying the Company that the obligations contained herein are being observed the Supplier shall at all times allow persons duly authorized by the Company to make any such inspections or tests which the Company may require and shall afford all reasonable facilities and assistance free of cost to the Company.

Text Box: 5.3.4The Supplier shall ensure that all Goods supplied under this Purchase Order shall be manufactured stored tested and packed in accordance with all relevant Standards applicable to them, including without limitation, the standards set by the Kenya Bureau of Standards and shall from time to time make changes in the specification of the goods which are required to comply with any applicable safety or statutory requirements

5.5  Defective Goods

5.4.1            Where upon inspection and testing the Goods are found to be defective, the Company may at its option and within a reasonable period of time following discovery of the defect:

a)        reject the whole or part of the Goods;

b)       require the Supplier at its own cost to replace the Goods found to be defective; or

c)        require the Supplier at its own cost to rectify the defective Goods.

5.4.2            If the Company elects to reject the Goods and the Purchase Price in respect of those Goods or part thereof has already been paid, the Supplier shall forthwith repay to the Company an amount equal to the Purchase Price of the Goods rejected less a reasonable amount in respect of the use that the Company has had of the Goods in question. The Company shall be entitled (without prejudice to any other rights that it may have) to retain the Goods until the full amount due hereunder has been paid.

6.    TITLE AND RISK

6.1.               The Supplier warrants that it has good and clear title in the Goods, free from any lien, encumbrance or security interest. Title and risk shall remain in the Supplier until delivery of the Goods in accordance with the delivery term provided on the face of this purchase order.

6.2.               For import Purchase Orders transfer of Title and Risk shall be guided by International Commercial Terms "INCOTERMS” as published by the International Chamber of Commerce (ICC) and commonly used in both international and domestic trade.

6.3.               The Supplier shall, no later than the date of delivery, provide the Company with all documents necessary to vest title in respect of the Goods in the Company.

6.4.               The Company shall not be required to return any packing material to the Supplier whether or not the Goods are accepted in terms of this Purchase Order.

6.5.               The Supplier shall remain liable for any defects occasioned by negligence, faulty packaging or handling that shall be discovered by the Company after transfer of ownership.

7.    PAYMENT AND TAXES

7.1.               The price (which shall be a firm fixed price) for the Goods and/or Services shall be the price set out in the Purchase Order. The price inclusive of all applicable taxes and duties levied on such payments and in the event that the Company shall be required by law to make any deductions or withholding tax, then Company shall comply with such legislation and remit the amount to the appropriate authorities.,

7.2.               Unless otherwise stated, price is inclusive of the costs of all packaging and other related charges, delivery and insurance. Any increase in the price for any reason shall be subject to the express prior written consent of the Company.

7.3.               Unless otherwise stated in this Purchase Order payments shall be made within sixty (60) days from receipt by the Company of the Supplier's invoice.

7.4.               Where the Goods and/or Services are delivered in consignments the Supplier shall issue a separate invoice for each consignment.

7.5.               Where applicable, payment shall be subject to the deduction of withholding tax at such rate as may be prescribed by the Government of Kenya from time to time.

7.6.               Payment does not constitute final acceptance and the Company reserves the right to reject the Goods after payment in terms with this Purchase Order.

7.7.               The Company reserves the right to withhold any disputed portions of payments until the dispute is resolved but undisputed amounts shall be paid by the due date.

7.8.               The Company reserves the right to set off any liquidated damages or counterclaim arising out of this or any other of the Company's purchase orders or Agreements with the Supplier.

8.    ARISING INTELLECTUAL PROPERTY RIGHTS

8.1.               All arising intellectual property rights developed in the course of the provision of the Services shall at all times be and remain the sole and exclusive property of the Company. For purposes of this purchase order, arising intellectual property rights "Arising IP" shall include, without limitation, all designs, discoveries, creations, works, devices, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by the Supplier alone or with others which result from or relate to the Services performed pursuant to this purchase order. For the avoidance of doubt Goods manufactured or supplied by the Supplier to the Company without having been designed, customized or modified to the Company's specific requirements do not constitute Arising IP.

8.2.               The Supplier by accepting this Purchase Order irrevocably assigns and transfers to the Company all right, title and interest in and to the Arising IP including all associated intellectual property rights.

9.    INSURANCE

The Supplier shall be required to obtain and maintain such insurance as may be required in the performance of the

Supplier's obligations under this purchase order. The Supplier shall furnish the Company with copies of the insurance

policy if and when required by the Company to do so. The Company shall not be liable for damages to, destruction

of or loss of any of the Supplier's property from any cause whatsoever.

10.  INDEMNITY

10.1.            Intellectual Property

The Supplier warrants that the Goods and or Services delivered under this Purchase Order do not infringe any patent, trademark, trade name, copyright and any other intellectual property rights and agrees to indemnify and save harmless the Company and its officers, employees or agents from any and all damages, claims, liabilities and expenses (including legal lees) arising out of the use or sale of such Goods and or Services by the Company or its officers, employees or agents in violation of such rights.

10.2.            General

The Supplier shall defend, indemnify and hold harmless the Company against all damages, claims, liabilities and expenses (including legal fees) arising out of or resulting in any way from any defects in the Goods or Services or from any act or omission of the Supplier, its agents, employees or subcontractors in the performance of this purchase order. The Supplier's rights to be indemnified and held harmless by the Supplier shall be in addition to the warranty obligations of the Supplier and to any other or additional rights the Supplier may have at law or in equity.

11.  WARRANTIES

11.1.      Goods

11.1.1         The Supplier warrants that all equipment supplied under this purchase order:

(a)        shall be merchantable, fit and safe for the purposes for which it is manufactured;

(b)        shall be new;

(c)        shall conform in all respects to the requirements of this purchase order and other specifications communicated to the Supplier;

(d)        shall be free from defects in design, materials and workmanship until the expiry of a period of twelve (12) months from the date on which 11 was placed into service or for the purpose for which it was purchased.

11.1.2         If any item or any part thereof fails to meet the foregoing warranties and the Company so notifies the Supplier, the Supplier shall promptly correct such failure at its expense, including all Shipping costs associated with such correction.

11.1.3         The Supplier further warrants that it has good title to the Goods and that they are free and clear from all liens and encumbrances.

11.1.4         These warranties shall survive the acceptance and payment of the Goods by the Company and shall not limit any other or additional rights that The Company may have at law or in equity.

11.2.      Services

11.2.1         The Seller represents and \warrants that it shall perform the Services in a professional, workmanlike manner and to such high standard of quality consistent with applicable industry standards.

11.2.2         The Supplier further warrants that the performance of the Services will not conflict with, or be prohibited in any way by, any contract or statutory obligation to which the Supplier is bound.

12.  LIMITATION OF LIABILITY

The Company shall not be liable for any loss of revenue, anticipated profits or for special or consequential damages arising from any cause whatsoever. The Company's sole liability to the supplier under this Purchase Order will be for the amount due for the Goods or Services delivered and accepted and for which payment has not been made. The Supplier shall be liable to The Company for any and all rights and remedies provided by this order and the law.

13.  CONFIDENTIALITY

The Supplier and its directors, officers, employees and agents shall not disclose to any third party any information pertaining to the Goods provided or Services performed under this Purchase Order or pertaining to The Company business or operations including any subscriber data which the Supplier obtains or has access to in connection with the performance of its obligations, without the prior written consent of The Company.

14.  INDEPENDENT CONTRACTOR

The Supplier is an independent contractor and nothing in this purchase order is intended to or shall operate to create a partnership, agency or joint venture of any kind between the parties.

15.  SEVERABILITY

If any provision of this Purchase Order is declared by any judicial or other competent authority or an arbitrator appointed hereunder to be void, voidable, illegal or otherwise unenforceable, such provision (and only such provision) shall be severed or modified to reflect as nearly as possible the parties' intent from this purchase order and the remaining provisions of this purchase order shall remain in full force and effect

16.  ASSIGNMENT AND SUB - CONTRACTING

The Supplier shall not without the prior written consent of the Company subcontract or assign any of its rights, claims or obligations under this Purchase Order. The Supplier agrees that any attempted assignment or subcontracting without the prior written consent of the Company shall be void and shall entitle the Company to terminate this purchase without ensuing liability to the Supplier.

17.  NON SOLICITATION

The Supplier warrants that no third party, officer or employee of the Company has received or will receive any material or other benefit for the purpose of influencing the action of a Company officer or employee in the execution or amendment of this Purchase Order or securing any determination in respect to the Supplier's performance. The Supplier recognizes that a breach of this clause will be deemed to be a material breach of this Purchase Order and will result in the immediate termination of this Purchase Order without liability to the Company.

18.  WAIVER

The Company's failure to enforce any provision of the Purchase Order or to protest any breach or default of the Purchase Order by the Supplier shall not be construed as a waiver of any rights it may have under this purchase order

19.  NOTICES

Any notice given under this Purchase Order may be given by hand, email or sent by registered mail or courier to the other party at their last known address or such other address as may from time to time be notified in writing to the party giving such notice. Notices shall be deemed given, in the case of notice:

a)        delivered by hand it shall be deemed to have been duly received by the addressee on the date of delivery;

b)       posted by registered post it shall be deemed to have been received by the addressee on the eighth business day following the date of such posting;

c)        sent by facsimile or email it shall be deemed to have been served unless the sender has received a receipt indicating unsuccessful transmission.

20.  GOVERNING LAW

The construction, interpretation, validity and performance of this Purchase Order shall be governed in all respects by the Laws of Kenya.

21.  ARBITRATION

 

Any dispute which cannot be resolved by the parties may be referred to an arbitrator agreed upon between the Parties or failing such agreement appointed by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitration and such arbitration shall take place in Nairobi and in accordance with in accordance with the Rules of Arbitration of the said Institute and subject to and in accordance with the provisions of the Arbitration Act 1995 and any amendments as may be in force from time to time.