PURCHASE ORDER
1. TERMS AND CONDITIONS
The acknowledgement of this Purchase Order shall constitute acceptance of these terms & conditions and shall create a binding contract between the Purchaser and Seller, save as varied by any pre-existing terms and conditions between the parties.
2. DEFINITIONS
i. “Agreement” means the duly and properly executed contract between Seller and Purchaser for the purchase and sale of Goods and/or Services.
ii. “Deliverable” means any deliverable or other product or result from Services that is referred to in a Purchase Order, and any related materials, data, documentation, and includes any Intellectual Property Rights developed by Seller pursuant to such Purchase Order.
iii. “Delivery Date” means the date on which Goods or performance of Services is required to be available at the Delivery Point specified in the Purchase Order.
iv. “Delivery Point” means the location identified by the Purchaser to which the Seller is to deliver Goods and/or perform the services, or such other delivery area or point which is specified in writing by the Purchaser.
v. “Goods” means the goods that are required to be delivered by Seller pursuant to a Purchase Order, and include all materials, equipment, component parts, packaging and labelling of such goods.
vi. “Goods Warranty Period” means twenty-four (24) months after receipt of goods.
vii. “Intellectual Property Rights” means all intellectual and industrial property rights and rights of a similar nature including all rights in and to, patents including all issued patents and pending applications therefore and patents which may be issued therefrom (including divisions, reissues, re-examinations, continuations and continuations-in-part); trade-marks; copyrights; industrial design rights; rights pertaining to trade secrets and confidential information; publicity rights; personality rights; moral rights; and other intellectual property rights whether registered or not and all applications, registrations, renewals and extensions pertaining to the foregoing.
viii. “Purchaser” means Wananchi Group (Kenya) Limited or Simbanet Com Limited or Wananchi Telecom Limited, as the case maybe.
ix. “Purchase Order” means these terms and conditions between Purchaser and Seller for the purchase and sale of Goods and/or Services, to which these Standard Purchase Terms are attached or are incorporated by reference
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x. “Services” means any services to be provided by Seller to Purchaser pursuant to a Purchase Order.
xi. “Specifications” means the requirements, attributes and specifications for the Goods or Services that are set out in the applicable Purchase Order. Specifications also include: (a) documentation relating to the Goods or Services; (b) operational and technical features and functionality of the Goods or Services; (c) standards or levels of service performance for Services; and (d) Purchaser business requirements that are expressly set out in a Purchase Order.
xii. “Seller” means the party indicated on the face page of the Purchase Order that is contracting with Purchaser for the purchase and sale of Goods and/or Services.
3. ACCEPTANCE OF TERMS AND CONDITIONS
The Seller accepts these terms and conditions by signing the acceptance copy of the Purchase Order and returning it to Purchaser promptly. By acceptance of the Purchase Order, Seller agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in the Purchase Order.
These Terms may be modified or superseded only by a written agreement signed by duly authorized representatives of Purchaser and Seller.
4. DELIVERY OF GOODS AND SERVICES
i. Seller agrees to supply and deliver the Goods to Purchaser and to perform the Services, as applicable, on the terms set out in this terms and conditions.
ii. Seller shall, at its own expense, pack, load, and deliver Goods to the Delivery Point and in accordance with the invoicing, delivery terms, shipping, packing, and other instructions printed on the face of the Purchase Order or otherwise provided to Seller by Purchaser in writing. No charges will be allowed for freight, transportation, insurance, shipping, storage, handling, demurrage, cartage, packaging or similar charges unless provided for in the applicable Purchase Order or otherwise agreed to in writing by Purchaser.
iii. Time is of the essence with respect to delivery of the Goods and performance of Services.
iv. Goods shall be delivered and Services performed by the applicable Delivery Date. Seller must immediately notify Purchaser if Seller is likely to be unable to meet a Delivery Date. At any time prior to the Delivery Date, Purchaser may, upon notice to Seller, cancel or change a Purchase Order, or any portion thereof, for any reason, including, without limitation, for the convenience of Purchaser or due to failure of Seller to comply with this Agreement, unless otherwise noted.
5. PACKAGING & SHIPPING
All shipping containers shall be packed and packaged to: (i) ensure safe arrival to final destination; (ii) secure the lowest transportation costs;(iii) comply with requirements of common carriers; (iv) meet Purchaser’s written instructions; and (v) meet the requirements of all applicable laws, ordinances, rules and regulations.
Each delivery of the Goods shall be accompanied by a delivery note correctly addressed to the Purchaser which shows the Purchase Order number, order and dispatch dates, the type and quantity of the Goods, returns instructions and, in the case of part delivery, the outstanding balance remaining to be delivered.
6. TITLE & RISK
Title and risk of loss or damage shall pass to Purchaser upon receipt of Goods at the Delivery Point. Risk of loss or damage to, or destruction of the goods shall be borne by the Seller until physical delivery of the Goods has been completed in accordance with the Purchase Order. If Purchaser rightfully rejects the Goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller.
The Seller shall, without delay and at the Seller’s own expense, reinstate, replace or make good to the satisfaction of the Purchaser, or if the Purchaser agrees, compensate the Purchaser, for any loss or damage connected with the performance of the Agreement, except to the extent that such loss or damage is caused by the neglect or default of the Purchaser.
“Loss or damage” includes but is not limited to: loss or damage to property; personal injury, sickness or death; and loss of profits or loss of use suffered as a result of any loss or damage.
This clause shall survive termination or expiry of the Agreement.
7. DELAYS
The time for the delivery of the Goods or the performance of the Services shall be of the essence. If delivery of the Goods or performance of the Services is not made within the agreed delivery timelines, Purchaser 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:
i. direct expedited delivery of Goods for which the Seller shall bear all increased costs, including but not limited to, increased transportation charges and risk of loss;
ii. direct acceleration of the Services for which the Seller shall bear all increased labor and other acceleration costs
iii. terminate the Purchase Order for default; or
iv. claim liquidated damages calculated as set out on the face of the Purchase Order or such other documentation forwarded to the Seller by Purchaser;
v. Recover from the Seller any expenditure reasonably incurred by Purchaser in obtaining substitute Goods or Services from another Seller.
8. INSPECTION, ACEPTANCE & REJECTION
i. All shipments of Goods and performance of Services shall be subject to Purchaser’s right of inspection. Purchaser shall have ninety (90) days (the “Inspection Period “) following the delivery of the Goods at the Delivery Point or performance of the Services to undertake such inspection, and upon such inspection Purchaser shall either accept the Goods or Services (“Acceptance“) or reject them.
ii. Purchaser shall have the right to reject any Goods that are delivered in excess or falls below the quantity ordered or are damaged or defective. In addition, Purchaser shall have the right to reject any Goods or Services that are not in conformance with the Specifications.
iii. Transfer of title to Purchaser of Goods shall not constitute Purchaser’s Acceptance of above mentioned Goods. Purchaser shall notify the Seller within the Inspection Period of any Goods or Services that are rejected, together with the reasons for such rejection.
iv. Failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods or services that are not in accordance with the Purchase nor impose liabilities on Purchaser for them. Purchaser’s inspection, testing, or Acceptance or use of the Goods or Services hereunder shall not limit or otherwise affect Seller’s warranty obligations hereunder with respect to the Goods or Services, and such warranties shall survive inspection, test, Acceptance and use of the Goods or Services.
v. The Purchaser shall be entitled to return rejected Goods to Seller at Seller’s expense and risk of loss for, at Purchaser’s option, either: (i) full credit or refund of all amounts paid by Purchaser to Seller for the rejected Goods; or (ii) replacement Goods to be received within the time period specified by Purchaser. Title to rejected Goods that are returned to Seller shall transfer to Seller upon such delivery.. Seller shall not deliver Goods that were previously rejected on grounds of non-compliance with this Purchase Order, unless delivery of such Goods is approved in advance by Purchaser, and is accompanied by a written disclosure of Purchaser’s prior rejection(s).
9. PRICE OR PAYMENT TERMS
i. Prices for the Goods and/or Services will be set out in the applicable Purchase Order. Prices shown in the Purchase Order may not be varied except with the express written agreement of Purchaser. Seller will issue all invoices on a timely basis.
ii. Purchaser shall have the right to withhold payment of any invoiced amounts that are disputed in good faith until the parties reach an agreement with respect to such disputed amounts and such withholding of disputed amounts shall not be deemed a breach of this Agreement nor shall any interest be charged on such amounts. Notwithstanding the foregoing, Purchaser agrees to pay the balance of the undisputed amounts on any invoice that is the subject of any dispute within the time period specified herein.
iii. The invoice shall be on letterhead paper correctly addressed to the Purchaser and include such supporting information required by the Purchaser to verify the accuracy of the invoice, including but not limited to the relevant Purchase Order number, a breakdown of the Goods and/or Services supplied and the amount of tax payable, if any.
iv. Save where an invoice is disputed, the Purchaser shall pay the Contractor within 45 days of receipt of an invoice.
10. INTELLECTUAL PROPERTY RIGHTS
In respect of any Goods that are transferred to the Purchaser as part of the Services under this Purchase Order, the Seller warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such terms to the Purchaser, it will have full and unrestricted rights to sell and transfer all such items to the Purchaser.
The Seller hereby grants the Purchaser a perpetual, royalty-free, irrevocable, non-exclusive licence to use all intellectual property rights in the materials created or developed pursuant to this Purchase Order.
The Seller shall keep the Purchaser indemnified against all liabilities, costs, expenses, damages and losses suffered incurred by the Purchaser as a result of or in connection with any claim made against the Purchaser for actual or alleged infringement of a third party’s intellectual property rights arising out or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Seller, its employees, agents or subcontractors.
This clause shall survive termination or expiry of this Agreement.
11. INSURANCE
The Seller shall effect and maintain an adequate level of insurance cover in respect of all risks that may be incurred by the Seller in the performance of this Agreement.
12. WARRANTIES
i. Product Warranties. Seller warrants to Purchaser that during the Goods Warranty Period all Goods provided hereunder shall be: (i) of merchantable quality; (ii) fit for the purposes intended; (iii) unless otherwise agreed to by Purchaser, new; (iv) free from defects in design, material and workmanship; (v) in strict compliance with the Specifications; (vi) free from any liens or encumbrances on title whatsoever; (vii) in conformance with any samples provided to Purchaser; and (viii) compliant with all applicable laws, regulations, standards, and codes.
ii. Service Warranties. Seller shall perform all Services: (i) exercising that degree of professionalism, skill, diligence, care, prudence, judgment, and integrity which would reasonably be expected from a skilled and experienced service provided providing services under the same or similar circumstances as the Services under this Agreement; (ii) in accordance with all Specifications and all Purchaser policies, guidelines, by-laws and codes of conduct applicable to Seller; and (iii) using only personnel with the skills, training, expertise, and qualifications necessary to carry out the Services. Purchaser may object to any of the Seller’s personnel engaged in the performance of Services who, in the reasonable opinion of Purchaser, are lacking in appropriate skills or qualifications, engage in misconduct, constitute a safety risk or hazard or are incompetent or negligent, and the Seller shall promptly remove such personnel from the performance of any Services upon receipt of such notice, and shall not re-employ the removed person in connection with the Services without the prior written consent of Purchaser.
iii. Intellectual Property Warranty. Seller further warrants to Purchaser that at all times all Goods and or Services (including any Deliverables) will not be in violation of or infringe any Intellectual Property Rights of any person.
iv. Manufacturer Warranties. Seller shall assign to Purchaser all manufacturer’s warranties for Goods not manufactured by or for Seller and shall take all necessary steps as required by such third-party manufacturers to effect assignment of such warranties to Purchaser.
13. WARANTY REMEDIES
In the event of breach of any of the warranties above, and without prejudice to any other right or remedy available to Purchaser (including Purchaser’s indemnification rights hereunder), Seller will, at Purchaser’s option and Seller’s expense,
i. refund the purchase price for, or correct or replace the affected Goods, or re-perform the affected Services, within fourteen (14) days of warranty breach.
ii. All associated costs, including costs of re-performance, costs to inspect the Goods and/or Services, transport the Goods from Purchaser to Seller, and return shipment to Purchaser, and costs resulting from supply chain interruptions, will be borne by Seller.
iii. If Goods are corrected or replaced or Services are re-performed, the warranties herein will continue as to the corrected or replaced Goods for a further Goods Warranty Period commencing on the date of Acceptance of the corrected or replaced Goods by Purchaser. If Seller fails to repair or replace the Product within the time periods required above, Purchaser may repair or replace the Goods at Seller’s expense.
iv. In the event that any Goods provided by Seller to Purchaser are subject to a claim or allegation of infringement of Intellectual Property Rights of a third party, Seller shall, at its own option and expense, without prejudice to any other right or remedy of Purchaser (including Purchaser’s indemnification rights hereunder), promptly provide Purchaser with a commercially reasonable alternative, including the procurement for Purchaser of the right to continue using the Goods in question, the replacement of such Goods with a non-infringing alternative satisfactory to Purchaser, or the modification of such Goods (without affecting functionality) to render them non-infringing.
14. INDEMNITY
Seller shall indemnify, defend and hold harmless Purchaser, its Affiliates, and their respective officers, directors, employees, consultants, and agents (the “Purchaser Indemnified Parties“) from and against any claims, fines, losses, actions, damages, expenses, legal fees and all other liabilities brought against or incurred by the Purchaser Indemnified Parties or any of them arising out of: (a) death, bodily injury, or loss or damage to real or tangible personal property resulting from the use of or any actual or alleged defect in the Goods or Services, or from the failure of the Goods or Services to comply with the warranties hereunder; (b) any claim that the Goods or Services infringe or violate the Intellectual Property Rights or other rights of any person; (c) any intentional, wrongful or negligent act or omission of Seller or any of its Affiliates or subcontractors; (d) Seller’s breach of any of its obligations under this Agreement; or (e) any liens or encumbrances relating to any Goods or Services.
15. LIMITATION OF LIABILITY
Purchaser’s aggregate liability arising from or relating to the Purchase Order is limited to the amount paid by purchaser for the goods and/or services. To the maximum extent allowable under applicable law, Purchaser shall not be liable under this order for any special, incidental, consequential, indirect, or punitive damages including, without limitation, anticipated profits or lost revenues even if Purchaser has been advised of the possibility of such damages.
16. DATA HANDLING
i. The Seller shall comply with any notification requirements under the Data Protection Legislation and shall duly observe all their obligations under the Data Protection Legislation which arise in connection with this Agreement/
ii. When handling the Purchaser’s data (whether or not personal data), the Purchaser shall ensure the security of the data is maintained in line with the security requirements of the Purchaser as notified to the Seller from time to time.
iii. Notwithstanding the general obligation above, where the Seller is processing personal data for the Purchaser as a data processor. The Seller shall:
a. ensure that it has in place appropriate technical and organizational measures to ensure the security of the personal data (and to guard against unauthorized or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data);
b. provide the Purchaser with such information as the Purchaser may reasonably request to satisfy itself that the Seller is complying with its obligations under the Data Protection Legislation;
c. promptly notify the Purchaser of any breach of the security requirements of the Purchaser;
d. promptly notify the Purchaser of any request for access to or a request to rectify or erase personal data; and
e. ensure that it does not knowingly or negligently do or omit to do anything which places the Purchaser in breach of its obligations under the Data Protection Legislation;
f. ensure that its staff are suitably trained;
17. CONFIDENTIAL INFORMATION
i. The Seller shall not disclose any confidential information received from the Purchaser, shall safeguard it accordingly and shall not disclose it to any other person without the prior written permission of the Purchaser, unless such disclosure is required by law, any governmental or regulatory authority or by a court of competent jurisdiction.
ii. The Seller shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging its obligations herein, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to this Agreement.
iii. The Seller shall not disclose any other information, which is not confidential information, relating to this Agreement or the Purchaser’s activities without the prior written consent of the Purchaser, unless such information is already in the public domain.
iv. (iv) This clause shall survive termination or expiry of this Agreement.
18. TERMINATION
Purchaser may terminate this Agreement or any order under this Purchase Order for cause in the event of any default by Seller. The following are causes, among others, allowing Purchaser to terminate: (i) late delivery, (ii) delivery of goods that are defective or that do not conform to Purchase Order, or (iii) failure upon request to provide Purchaser with reasonable assurances of future performance. Additionally, Purchaser may forthwith cancel this Purchase Order in the event of any of the following: (i) insolvency of Seller; (ii) the filing of an involuntary or voluntary petition of bankruptcy against Seller; (iii) the execution by Seller of an assignment for the benefit of creditors; or (iv) the appointment of a receiver over Seller’s assets.
Without prejudice to any other right Purchaser reserves the right to terminate the Purchase Order, or any part hereof, for its sole convenience upon written notice to the Seller. In the event of such termination, the Seller shall immediately stop all work hereunder and immediately instruct any and all of its Sellers and subcontractors to cease work. The Seller 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 Seller shall not be paid for any work performed or costs incurred after receipt of the notice. In no event shall Purchaser be liable for loss of profits or other cancellation charges.
19. MISREPRESENTATION; NON‑DISCLOSURE; ONGOING DISCLOSURE OBLIGATION
Seller represents and warrants that all information including KYC documents, statements, specifications, certifications, test results, pricing, lead times, country‑of‑origin data, sustainability and compliance declarations, and other materials (collectively, “Information”) furnished to Purchaser in connection with this Purchase Order—whether prior to issuance, in the course of performance, or after delivery—are and will remain true, complete, accurate, and not misleading in any respect, and do not omit any fact necessary to make any such Information, in light of the circumstances under which it was provided, not misleading. Seller acknowledges that Purchaser is relying on the Information in issuing and performance this Purchase Order.
Any failure to disclose, any omission of material fact, or any untrue, inaccurate, incomplete, or misleading Information (each, a “Disclosure Breach”) shall constitute a material breach of this Purchase Order and, to the maximum extent permitted by law, shall be deemed a misrepresentation on which Purchaser has detrimentally relied. Without limiting any other rights or remedies, upon a Disclosure Breach Purchaser may, at its option and without liability or penalty to Purchaser: (a) reject any affected goods or services, in whole or in part; (b) cancel or terminate this Purchase Order, in whole or in part, for cause with immediate effect; (c) require re‑performance, repair, replacement, or corrective action at Seller’s sole cost and expense; (d) obtain substitute goods or services, with Seller liable for all cover, expediting, and related costs; (e) adjust pricing, withhold, set off, or recoup from any amounts due or becoming due to Seller any damages, losses, costs, or expenses (including internal costs reasonably allocable to investigation and remediation); (f) require written assurances, audits, inspections, supporting records, and certifications (including from sub‑Sellers) to verify compliance; (g) require indemnification from Seller against, and prompt reimbursement of, any and all claims, liabilities, damages, penalties, fines, assessments, costs, and expenses (including reasonable attorneys’ and experts’ fees) arising out of or relating to the Disclosure Breach and Purchaser’s reliance on the Information; and/or rescind this Purchase Order ab initio together with a full refund of all amounts paid for the goods or services.
Seller’s obligations and Purchaser’s rights under this section are in addition to, and not in substitution for, any other representations, warranties, covenants, remedies, audit rights, quality standards, codes of conduct, or compliance requirements set forth in this Purchase Order or available at law or in equity. The covenants, warranties, indemnities, and remedies in this section shall survive inspection, acceptance, payment, expiration, or termination of this Purchase Order, and Purchaser may initiate claims, actions, or proceedings for any Disclosure Breach at any time permitted by applicable law, regardless of when the Disclosure Breach is discovered, including after expiration or termination. For purposes of any statute of limitations, statute of repose, or contractual limitation period, the period for any claim arising from a Disclosure Breach shall not commence until the later of Purchaser’s actual discovery of the Disclosure Breach or the date on which Purchaser reasonably should have discovered it, and any such period shall be tolled during any concealment or failure to disclose by Seller. Seller waives, to the maximum extent permitted by law, any defense based on the expiration or termination of this Purchase Order or on any shorter contractual limitation period. To the extent any limitation of liability might otherwise apply to a Disclosure Breach, the parties agree that no such limitation shall bar or reduce Purchaser’s rights and remedies under this section to the maximum extent permitted by law.
20. INDEPENDENT CONTRACTORS
Seller will perform its obligations under the Agreement as an independent contractor and in no way will Seller or its employees be considered employees, agents, partners, fiduciaries, or joint ventures of Purchaser. Seller and its employees will have no authority to represent Purchaser or its Affiliates or bind Purchaser or its Affiliates in any way, and neither Seller nor its employees will hold themselves out as having authority to act for Purchaser or its Affiliates.
21. GENERAL PROVISIONS
i. Non-assignment: Assignment of the Purchase Order or any interest in it or any payment due or to become due under it, without the written consent of the Purchaser, will be void.
ii. Transportation: All the prices are established as F.O.B. Seller and/or Origin Dock, Freight Prepaid, unless otherwise specifically provided on the front of the Purchase Order. The responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller.
iii. Anticipation of delivery schedule: Unless otherwise agreed in writing, Seller will not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Purchaser’s delivery schedule.
iv. Force majeure: Any delay or failure of either party to perform its obligations shall be excused if it is caused by an extraordinary event or occurrence beyond the control of the nonperforming party and without the nonperforming party’s fault or negligence, such as acts of God, fires, floods, windstorms, explosions, riots, natural disasters, wars , pandemics and sabotage.
v. Publicity: Seller will not use Purchaser’s name or logo in publicity, advertising, or similar activity, except with Purchaser’s prior written consent. Seller will not disclose the existence of the Purchase Order or any of its respective terms to any third party without Purchaser’s prior written consent.
vi. Documentation: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to Purchaser with the goods or services.
vii. Governing law: This terms and conditions, these Terms, and all related transactions, will be interpreted under and governed by the laws of Kenya unless agreed otherwise in writing.
viii. Dispute resolution: Disputes arising under this Agreement will be resolved by the parties in good faith through negotiations in the ordinary course of business. Any dispute not so resolved will be submitted to a court of competent jurisdiction within the Republic of Kenya.
ix. Waiver; modification: No claim or right arising out of a breach of this terms and conditions can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure by a party to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions thereafter to enforce each and every such provision.
x. Notices: All notices, consents, waivers, and other communications required or permitted to be given pursuant to the Purchase Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed facsimile or e-mail.
xi. Severability: If any provision of this terms and conditions shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this Agreement.
xii. Prevention of Fraud and Corruption : Neither Party shall receive or agree to receive from any person, or offer or agree to give to, or procure on behalf of any person, any gift or consideration of any kind as an inducement or reward for doing or not doing anything, or for showing favour or disfavour to any person in connection with this Agreement