PURCHASE ORDER TERMS & CONDITIONS

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 Supplier, save as varied by any pre-existing terms and conditions between the parties.

2.  DEFINITION

“Agreement” means the duly and properly executed contract between Supplier and Purchaser for the purchase and sale of Goods and/or Services.

“Affiliate” means, in relation to any person or entity, any other person or entity that, directly or indirectly, controls, is controlled by, or is under common control with such person or entity, where “control” means the holding of any shareholding, equity interest, or ownership stake of any kind or quantum whatsoever, or the ability to direct or influence the management, policies, or affairs of such person or entity by any means, whether through the ownership of shares or voting securities, by contract, by virtue of board representation, through financing arrangements, or otherwise. For the avoidance of doubt, any degree of control, regardless of its nature or extent, shall be declared to the Purchaser in accordance with the obligations set out in this Clause.

“Common Shareholder” means any person or entity that holds, directly or indirectly, any shareholding, equity interest, or ownership stake in both (i) the Supplier or any Affiliate of the Supplier and (ii) a Competitor, regardless of the quantum of such shareholding, equity interest, or ownership stake.

“Competitor” means any person, entity, or organisation that (i) is engaged in, or is reasonably capable of engaging in, the supply of goods or services that are the same as, substantially similar to, or reasonably substitutable for the goods or services procured by the Purchaser under this Purchase Order, or that otherwise competes with the Purchaser in any material respect; or (ii) shares a Common Shareholder with the Supplier or any Affiliate of the Supplier. For the avoidance of doubt, where a shareholder, whether an individual or a corporate entity, holds any direct or indirect shareholding, equity interest, or ownership stake in both the Supplier (or any Affiliate of the Supplier) and in any entity that competes with the Purchaser, such entity shall be deemed a Competitor for the purposes of this Clause, and such Common Shareholder shall be subject to the restrictions and obligations set out herein.

“Disclosure Notice” has the meaning given to it in the Purchase Order

“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 Supplier pursuant to such Purchase Order.

“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.

“Delivery Point” means the location identified by the Purchaser to which the Supplier is to deliver Goods and/or perform the services, or such other delivery area or point which is specified in writing by the Purchaser.

“Fraud” means any act of dishonesty, willful misrepresentation, concealment of material facts, forgery, falsification of records, collusion with a Competitor, or any other conduct undertaken by the Supplier with the intent to deceive the Purchaser or to circumvent the obligations set out in this Clause, whether committed during or after the term of this Purchase Order

“Goods” means the goods that are required to be delivered by Supplier pursuant to a Purchase Order, and include all materials, equipment, component parts, packaging and labelling of such goods.

“Goods Warranty Period” means twenty-four (24) months after receipt of goods.

“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.

“Purchaser” means the applicable Wananchi or SimbaNet entity issuing the Purchase Order, being the respective legal trading entity incorporated and operating in the relevant jurisdiction as identified in the Purchase Order.

“Purchase Order” means these terms and conditions between Purchaser and Supplier for the purchase and sale of Goods and/or Services, to which these Standard Purchase Terms are attached or are incorporated by reference.

“Services” means any services to be provided by Supplier to Purchaser pursuant to a Purchase Order.

“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.

“Supplier” 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 Supplier 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, Supplier 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 Supplier.

4. DELIVERY OF GOODS AND SERVICES

Supplier 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.

Supplier 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 Supplier 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.

Time is of the essence with respect to delivery of the Goods and performance of Services.

Goods shall be delivered and Services performed by the applicable Delivery Date. Supplier must immediately notify Purchaser if Supplier is likely to be unable to meet a Delivery Date. At any time prior to the Delivery Date, Purchaser may, upon notice to Supplier, 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 Supplier 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 Supplier 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 Supplier.

The Supplier shall, without delay and at the Supplier’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:

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;

direct acceleration of the Services for which the Supplier shall bear all increased labor and other acceleration costs

terminate the Purchase Order for default; or

claim liquidated damages calculated as set out on the face of the Purchase Order or such other documentation forwarded to the Supplier by Purchaser;

Recover from the Supplier any expenditure reasonably incurred by Purchaser in obtaining substitute Goods or Services from another Supplier

8.INSPECTION, ACEPTANCE & REJECTION

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.

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.

Transfer of title to Purchaser of Goods shall not constitute Purchaser’s Acceptance of above mentioned Goods. Purchaser shall notify the Supplier within the Inspection Period of any Goods or Services that are rejected, together with the reasons for such rejection.

Failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Supplier 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 Supplier’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.

The Purchaser shall be entitled to return rejected Goods to Supplier at Supplier’s expense and risk of loss for, at Purchaser’s option, either: (i) full credit or refund of all amounts paid by Purchaser to Supplier 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 Supplier shall transfer to Supplier upon such delivery.. Supplier 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

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. Supplier will issue all invoices on a timely basis.

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.

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.

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 Supplier 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 Supplier 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 Supplier  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 Supplier, its employees, agents or subcontractors.

This clause shall survive termination or expiry of this Agreement.

 

11. INSURANCE

The Supplier shall effect and maintain an adequate level of insurance cover in respect of all risks that may be incurred by the Supplier  in the performance of this Agreement.

 

WARRANTIES

Product Warranties. Supplier 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.

Service Warranties. Supplier 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 Supplier; 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 Supplier’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 Supplier 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.

Intellectual Property Warranty. Supplier 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.

Manufacturer Warranties. Supplier shall assign to Purchaser all manufacturer’s warranties for Goods not manufactured by or for Supplier 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), Supplier will, at Purchaser’s option and Supplier’s expense,

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.

All associated costs, including costs of re-performance, costs to inspect the Goods and/or Services, transport the Goods from Purchaser to Supplier, and return shipment to Purchaser, and costs resulting from supply chain interruptions, will be borne by Supplier.

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 Supplier fails to repair or replace the Product within the time periods required above, Purchaser may repair or replace the Goods at Supplier’s expense.

In the event that any Goods provided by Supplier to Purchaser are subject to a claim or allegation of infringement of Intellectual Property Rights of a third party, Supplier 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

Supplier 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 Supplier or any of its Affiliates or subcontractors;

(d) Supplier’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

The Supplier 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/

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 Supplier from time to time.

Notwithstanding the general obligation above, where the Supplier is processing personal data for the Purchaser as a data processor. The Supplier shall:

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);

provide the Purchaser with such information as the Purchaser may reasonably request to satisfy itself that the Supplier is complying with its obligations under the Data Protection Legislation;

promptly notify the Purchaser of any breach of the security requirements of the Purchaser;

promptly notify the Purchaser of any request for access to or a request to rectify or erase personal data; and

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;

ensure that its staff are suitably trained;

17. CONFIDENTIAL INFORMATION

The Supplier 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.

The Supplier 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.

The Supplier 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.

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 Supplier. 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 Supplier; (ii) the filing of an involuntary or voluntary petition of bankruptcy against Supplier; (iii) the execution by Supplier of an assignment for the benefit of creditors; or (iv) the appointment of a receiver over Supplier’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 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 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

Supplier 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. Supplier 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 Supplier’s sole cost and expense; (d) obtain substitute goods or services, with Supplier liable for all cover, expediting, and related costs; (e) adjust pricing, withhold, set off, or recoup from any amounts due or becoming due to Supplier 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‑Suppliers) to verify compliance; (g) require indemnification from Supplier 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.

Supplier’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 Supplier. Supplier 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. NON-COMPETITION AND EXCLUSIVITY

20 (a)  Pre-Existing Engagement Disclosure (KYC)

As a condition precedent to the issuance and validity of this Purchase Order, the Supplier represents, warrants, and undertakes that it has, prior to or contemporaneously with the execution of this Purchase Order, made full, complete, and accurate disclosure to the Purchaser of any and all existing or prior contracts, agreements, arrangements, understandings, shareholdings or dealings of any nature between the Supplier (or any of its Affiliates) and any Competitor, including the identity of each such Competitor, the nature and scope of the engagement, the duration of such engagement, and any ongoing obligations arising therefrom (the “KYC Disclosure”). The Supplier acknowledges that the Purchaser has entered into this Purchase Order in reliance upon the completeness and accuracy of the KYC Disclosure, and that any omission, misstatement, or inaccuracy in the KYC Disclosure shall constitute a material breach of this Purchase Order and, where made with intent to deceive or conceal, shall constitute Fraud for the purposes of Clause 20 ( e) below.

20 (b) Common Shareholding Restriction

The Supplier represents, warrants, and undertakes that no Common Shareholder exists prior to or contemporaneously with the execution of this Purchase Order, unless such Common Shareholder has been disclosed in writing to the Purchaser prior to the issuance of this Purchase Order and the Purchaser has expressly waived, in writing, the application of this restriction in respect of such Common Shareholder (a “Shareholding Waiver”). Where, at any time during the term of this Purchase Order or at any time thereafter, a Common Shareholder comes into existence or the Supplier becomes aware of the existence of a Common Shareholder, the Supplier shall promptly, and in any event no later than 7 business days from the date on which the Supplier becomes aware of such circumstance, notify the Purchaser in writing, providing full details of the identity of the Common Shareholder, the nature and extent of their shareholding in both the Supplier (or its Affiliate) and the Competitor, and any other information reasonably required by the Purchaser to assess the situation. The Supplier and the relevant Common Shareholder shall not supply, and shall not be entitled to supply, any goods or services to the Purchaser under this or any other Purchase Order unless and until the Purchaser has granted a Shareholding Waiver in its sole and absolute discretion. For the avoidance of doubt, this restriction applies to all Affiliates of the Supplier, and the Supplier shall procure that each of its Affiliates complies with this obligation

20 (c) Consequences of Breach During the Term of the Purchase Order

In the event that the Supplier breaches the obligations set out in Clauses above during the term of this Purchase Order, including but not limited to engaging with a Competitor without providing the required Disclosure Notice or without obtaining the Purchaser’s prior written consent, the following consequences shall apply:

(a) Liquidated Damages. The Supplier shall be liable to pay the Purchaser liquidated damages in an amount equal to the total value of the Purchase Order, which the Parties acknowledge and agree represents a genuine pre-estimate of the loss and damage likely to be suffered by the Purchaser as a result of such breach and does not constitute a penalty.

(b) Right of Termination. The Purchaser shall be entitled, at its sole discretion, to terminate this Purchase Order immediately upon written notice to the Supplier, without prejudice to any other rights or remedies available to the Purchaser under this Purchase Order or at law.

(c) Forfeiture of Outstanding Payments. Upon the occurrence of a breach, the Purchaser shall be entitled to withhold, set off, or forfeit any and all payments due or accruing to the Supplier under this Purchase Order, whether invoiced or not, and to apply such amounts toward the satisfaction of any liquidated damages, losses, or claims arising from the breach.

(d) Indemnification. The Supplier shall indemnify, defend, and hold harmless the Purchaser, its affiliates, directors, officers, employees, and agents from and against any and all losses, damages, liabilities, claims, costs, and expenses (including reasonable legal fees and disbursements) arising out of, in connection with, or resulting from the Supplier’s breach of this Clause.

(e) Injunctive and Equitable Relief. The Supplier acknowledges and agrees that a breach of this Clause would cause irreparable harm to the Purchaser for which monetary damages alone would not constitute an adequate remedy. Accordingly, the Purchaser shall be entitled, in addition to any other remedies available at law or in equity, to seek and obtain injunctive relief, specific performance, or any other equitable remedy from any court of competent jurisdiction, without the necessity of proving actual damages or posting any bond or other security.

(f) Disgorgement of Profits. The Supplier shall, upon demand by the Purchaser, account for and pay over to the Purchaser all profits, revenues, and financial benefits derived by the Supplier from any engagement with a Competitor undertaken in breach of this Clause.

20 (d) Penalties for Breach After Expiry or Termination

In the event that a breach of the obligations set out above occurs after the expiry or termination of this Purchase Order, or where a breach that occurred during the term of this Purchase Order is discovered after such expiry or termination, the following enhanced consequences shall apply in addition to, and without limitation of, the consequences set out in Clause 20 ( c ) above:

1. Enhanced Liquidated Damages. The Supplier shall be liable to pay the Purchaser enhanced liquidated damages in an amount equal to 100 % of the total value of the Purchase Order which the Parties acknowledge and agree represents a genuine pre-estimate of the aggravated loss and damage likely to be suffered by the Purchaser as a result of a post-term breach or a breach discovered post-term and does not constitute a penalty.
2. Clawback of Payments. The Purchaser shall be entitled to recover from the Supplier, by way of clawback, any and all payments previously made to the Supplier under this Purchase Order, to the extent that such payments relate to or were influenced by the Supplier’s undisclosed engagement with a Competitor, together with interest thereon at the rate of 20% per annum from the date of each such payment until the date of full recovery.
3. Indemnification. The Supplier shall indemnify, defend, and hold harmless the Purchaser, its affiliates, directors, officers, employees, and agents from and against any and all losses, damages, liabilities, claims, costs, and expenses (including reasonable legal fees and disbursements) arising out of, in connection with, or resulting from the Supplier’s breach, including any consequential, incidental, or special damages suffered by the Purchaser.
4. Permanent Debarment. The Purchaser shall be entitled, without further notice, to permanently debar the Supplier from participating in any future procurement, tender, or purchase order issued by the Purchaser or any of its affiliates.
5. Injunctive and Equitable Relief. The Purchaser shall remain entitled to seek and obtain injunctive relief, specific performance, or any other equitable remedy from any court of competent jurisdiction in respect of any post-term breach, without the necessity of proving actual damages or posting any bond or other security.

20 (e) Penalties for Fraud

In the event that the Purchaser discovers, whether during or after the term of this Purchase Order, that the Supplier has committed Fraud in connection with the obligations set out in this Clause, the following extreme consequences shall apply in addition to, and without limitation of, the consequences set out in Clauses 5 and 6 above:

1. Punitive Liquidated Damages. The Supplier shall be liable to pay the Purchaser punitive liquidated damages in an amount equal to 100% times the total value of the Purchase Order, which the Parties acknowledge and agree reflects the severity of the Supplier’s fraudulent conduct and the magnitude of the harm caused to the Purchaser.
2. Full Disgorgement and Restitution. The Supplier shall immediately account for and surrender to the Purchaser all profits, revenues, commissions, and financial benefits of any kind derived from or connected to the fraudulent engagement, together with full restitution of all amounts paid by the Purchaser under this Purchase Order.
3. Immediate Termination and Forfeiture. The Purchaser shall be entitled to terminate this Purchase Order immediately and without prior notice, and all outstanding payments, retentions, guarantees, and bonds held by or on behalf of the Supplier shall be automatically forfeited to the Purchaser.
4. Aggravated Indemnification. The Supplier shall indemnify, defend, and hold harmless the Purchaser, its affiliates, directors, officers, employees, and agents from and against any and all losses, damages, liabilities, claims, costs, and expenses (including but not limited to reasonable legal fees, forensic investigation costs, audit costs, and disbursements) arising out of, in connection with, or resulting from the Supplier’s Fraud, including any consequential, incidental, special, or punitive damages suffered by the Purchaser.
5. Criminal Referral. The Purchaser reserves the right to report the Supplier’s fraudulent conduct to all relevant law enforcement, regulatory, and governmental authorities, and to cooperate fully with any criminal investigation or prosecution arising therefrom.
6. Permanent Blacklisting. The Supplier shall be permanently blacklisted and debarred from all current and future procurement activities of the Purchaser and its affiliates, and the Purchaser shall be entitled to notify other entities, industry bodies, and regulatory authorities of the Supplier’s fraudulent conduct.
7. No Limitation Period. The Purchaser’s right to pursue claims and remedies under this Clause shall not be subject to any contractual limitation period, and the Purchaser may bring a claim at any time following the discovery of Fraud, subject only to the applicable statutory limitation periods.

20 (f)   Audit and Verification Rights

The Purchaser shall have the right, at any time during the term of this Purchase Order or at any time thereafter, upon reasonable notice to the Supplier, to audit and verify the Supplier’s compliance with the obligations set out in this Clause. The Supplier shall cooperate fully with any such audit and shall provide the Purchaser with access to such books, records, correspondence, electronic communications, and information as the Purchaser may reasonably require for the purpose of verifying compliance. The costs of any such audit shall be borne by the Purchaser, provided that where the audit reveals a breach of this Clause or any instance of Fraud, the Supplier shall reimburse the Purchaser for all reasonable costs incurred in connection with the audit, including the costs of any forensic investigators, auditors, or legal advisors engaged by the Purchaser.

20 (g) Cumulative Remedies

The rights and remedies of the Purchaser under this Clause are cumulative and are in addition to, and not in substitution for, any other rights or remedies available to the Purchaser at law, in equity, or under any other provision of this Purchase Order. No exercise or failure to exercise, and no delay in exercising, any right or remedy under this Clause shall constitute a waiver of any other right or remedy, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.

21. INDEPENDENT CONTRACTORS

Supplier will perform its obligations under the Agreement as an independent contractor and in no way will Supplier or its employees be considered employees, agents, partners, fiduciaries, or joint ventures of Purchaser. Supplier and its employees will have no authority to represent Purchaser or its Affiliates or bind Purchaser or its Affiliates in any way, and neither Supplier nor its employees will hold themselves out as having authority to act for Purchaser or its Affiliates.

22. GENERAL PROVISIONS

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.

Transportation: All the prices are established as F.O.B. Supplier 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 Supplier. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Supplier.

Anticipation of delivery schedule: Unless otherwise agreed in writing, Supplier 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.

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.

Publicity: Supplier will not use Purchaser’s name or logo in publicity, advertising, or similar activity, except with Purchaser’s prior written consent. Supplier 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.

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.

Governing law: These Terms and Conditions, and all related transactions, shall be governed by and construed in accordance with the laws of the jurisdiction in which the Purchaser is incorporated and domiciled.

Dispute resolution: Any disputes arising herein shall be referred to a court of competent jurisdiction in the country in which the Purchaser is incorporated and domiciled, which courts shall have exclusive jurisdiction.

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.

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.

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.