TERMS AND CONDITIONS OF PURCHASE
As used herein, "Supplier" is the person or entity to which this Masuku LLC Purchase Order and its attachments, exhibits and referenced agreements (“Masuku Order”) is issued; "Masuku" is Masuku LLC. Supplier and Masuku agree as follows:
1. SERVICES & GOODS: Supplier will perform the services ("Services") or provide the goods or service deliverables (collectively referred to as "Goods"), described in this Masuku Order in accordance with these Terms and Conditions and the agreement or work statement or both (if such documents are referenced in this Masuku Order) (collectively, “Terms”). Upon acceptance of this Masuku Order, delivery of Goods or commencement of a Service, Supplier is bound by the provisions of this Masuku Order, including the Terms, unless Supplier objects in writing prior to commencing Services or providing Goods.
This Masuku Order does not constitute a firm offer and may be revoked at any time prior to acceptance. Any terms or conditions contained in an acknowledgment, invoice or other communication of Supplier which are inconsistent with these Terms are rejected. To the extent that this Masuku Order might be treated as an acceptance of Supplier's prior offer, such acceptance is expressly made conditional on Supplier’s acceptance of these Terms. Supplier beginning performance of Services or providing Goods constitutes such acceptance.
2. DELIVERY & PERFORMANCE:
2.1 Time is of the Essence: Time of delivery and performance of every obligation of Supplier is of the essence.
2.2 Delivery: Each delivery of Goods must be accompanied by a delivery notice or packing slip describing the contents of each package showing quantity and Masuku Order number. Delivery charges invoiced to Masuku by Supplier or any third party will be accompanied by the original receipted bill of the deliverer. All prices quoted in the Masuku Order will include the cost of insurance and delivery; no additional charges of any kind will be allowed, unless otherwise agreed to in writing by Masuku. Masuku may reject Goods if Supplier substitutes Goods or delivers more than the quantity of Goods ordered without
express written authority from an authorised representative of Masuku's Procurement department. The method of delivery and routing must conform to Masuku's instructions; any extra costs will be borne by Supplier. If no method of delivery is specified in this Masuku Order, Supplier will use the least expensive means, consistent with safe and timely delivery. Delivery is not complete until the Goods are received by Masuku at the location designated in this Masuku Order.
2.3 Records of Inspection: Supplier must keep detailed records of all activities relating to the provision of the Goods. Specifically, any inspection or maintenance carried out by Supplier including the date of the visit, any defects found and action taken, and the name of Supplier’s personnel making the inspection. Upon Masuku's request, Supplier will make these records available for review or provide copies to Masuku.
2.4 Delay: If Supplier cannot provide the Goods within the time specified, Supplier must notify Masuku immediately of Supplier's earliest provision date (the "Revised Delivery Date"). Masuku may, at its option prior to delivery, cancel all or any part of this Masuku Order, or accept Supplier's Revised Delivery Date, without prejudice to any other rights Masuku may have.
3. RISK OF LOSS & DESTRUCTION OF GOODS: Supplier assumes all risk of loss until Masuku receives the Goods at the location designated in this Masuku Order. Title to the Goods will pass to Masuku upon receipt by it of the Goods at the designated destination. If the Goods ordered are destroyed prior to title passing to Masuku, Masuku may at its option cancel this Masuku Order or require delivery of substitute Goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of Goods is partial, Masuku has the right to require delivery of the Goods not destroyed.
4. ACCEPTANCE & REJECTION:
4.1 Inspection: Masuku has a reasonable amount of time after receipt of Goods and before payment to inspect them for conformity. Goods received prior to inspection will not be deemed accepted until Masuku has run an adequate test to determine whether the Goods conform to the specifications. Use of a portion of the Goods for the purpose of testing will not constitute an acceptance of the Goods.
4.2 Failure to Conform: If the Goods fail to conform to Masuku's specifications or are otherwise defective, Masuku has the right to reject such Goods and any undelivered portion of the Masuku Order. If Masuku rejects the Goods, then Supplier must promptly replace them at Supplier's sole expense. Nonconforming Goods will be returned to Supplier courier collect and risk of loss will pass to Supplier upon Masuku's delivery to the common carrier. All non-conforming services, including substitutions not approved in writing by Masuku, will be considered defective. Supplier must promptly correct such defective services at its sole expense.
4.3 Masuku Branded Goods: Supplier is prohibited from selling or gifting surplus or faulty Goods with Masuku’s name or trademark.
4.4 No Waiver of Warranties: Neither Masuku's payment, acceptance of Goods, inspection, nor failure to inspect relieves Supplier of any obligations, representations or warranties.
5. PAYMENT & PRICES:
5.1 Payment Due: Unless otherwise specified, Supplier must deliver the full quantity of Goods, or complete the Services to the satisfaction of Masuku before any payment will become due. Masuku will pay each correct and undisputed invoice within 45 days after its receipt by Masuku. Payment may be delayed if Supplier fails to supply the required documentation and quote the relevant Masuku Order Number.
5.2 Taxes: Supplier will separately list any value added, sales or local taxes, if any, on invoices.
6. OWNERSHIP OF WORK PRODUCT: If Supplier (alone or with others) makes or creates an idea, method, invention, discovery, design or other work either in performing its obligations or relating to or capable of being used in those aspects of Masuku’s business in which Supplier is engaged (“Work Product”), Supplier must disclose promptly full details of the Work Product to Masuku and all rights in it will belong to Masuku. At the request and reasonable expense of Masuku, Supplier must take lawful actions to vest all rights, title and interest in any Work Product in Masuku absolutely as legal and beneficial owner and to secure patent or other appropriate forms of protection for the Work Product worldwide. Supplier must not disclose or make use of any Work Product without Masuku’s prior written consent except to comply with this paragraph or to provide the Services or Goods. So far as permitted by law, Supplier irrevocably waives any rights Supplier has under copyright and patent law and any foreign corresponding rights in respect of all Work Product. Rights and obligations under this paragraph will continue in force after termination of this Masuku Order in respect of Work Product made during this Masuku Order. Supplier will not do or fail to do any act which would or might prejudice the rights of Masuku under this paragraph. Except to the extent expressly agreed between the parties in an applicable work statement, to the extent that any background intellectual property (i.e. pre-existing and other intellectual property in which Supplier or any of its licensors own or may acquire or assert any proprietary right anywhere in the world, “Background IP”) is necessary or useful for the exploitation of any of the Work Product by Masuku, Supplier hereby grants to Masuku a world-wide, non-exclusive, fully paid, royalty free, perpetual licence to use such Background IP in connection with such Work Product. Subject to the foregoing licence, Supplier or its licensors will retain all right, title and interest in the Background IP.
7. CONFIDENTIALITY: Supplier, including its subcontractors and agents, shall not (except as strictly necessary in the course of providing the Services or Goods) use or disclose, or allow to be used or disclosed, any Confidential Information of Masuku which Supplier received (whether before the date of this Masuku Order and in whatever capacity) without the prior written consent of Masuku. “Confidential Information” means all information in respect of Masuku’s residents, business and financing including, but not limited to, any ideas, business methods, finance, prices, financial marketing development or manpower, plans, market opportunities, product information, design rights, customer information, trade secrets, details, computer systems and software know-how on any medium and software listings of any party and other matters connected with the products or services manufactured, marketed, provided or obtained by Masuku.
8. PERSONAL DATA Both the Supplier and Masuku will comply with their data protection obligations of this Masuku Order and acknowledge that the Supplier is a Data Processer and Masuku is a Data Controller in respect of Personal Data regarding employees of Masuku.
9. NO PUBLICITY/TRADEMARKS: Supplier, including its subcontractors and agents, shall not advertise or make any other public disclosure relating to the supply of Goods or the performance of Services for Masuku, or use Masuku trademarks, trade names or service marks without Masuku’s prior written consent.
10. MASUKU INTELLECTUAL PROPERTY: To the extent that Masuku provides or makes available any Confidential Information or other intellectual property to Supplier, Supplier and its personnel will have a limited, personal, non-exclusive, non-transferable licence to use such Confidential Information and intellectual property solely for the purpose of performing its obligations under this Masuku Order and for no other purpose whatsoever. Except as may be otherwise expressly set forth in a referenced agreement or work statement, no other licence is granted to Supplier under these Terms, by implication or otherwise, with respect to any Confidential Information or other intellectual property that may be provided or made available by Masuku.
11.1 Services: Supplier represents and warrants that all Services will be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures. Further, Supplier represents and warrants that the Services will be completed in accordance with applicable specifications and will be correct and appropriate for the purposes contemplated in this Masuku Order. Supplier represents and warrants that the performance of Services under this Masuku Order will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Supplier is bound.
11.2 Goods: Supplier represents and warrants that all Goods provided will be new and will not be used or refurbished. Supplier represents and warrants that all Goods delivered will be of good quality, free from defects in materials and workmanship, non-infringing of third-party intellectual property or other rights, and will conform to all applicable specifications for a period of 12 months from the date of delivery to Masuku or for the period provided in Supplier's standard warranty covering the Goods, whichever is longer. Supplier will make spare parts available to Masuku for a period of 5 years from the date of delivery at Supplier’s then current price, less applicable discounts. Additionally, Goods purchased will be subject to all written and oral express warranties made by Supplier's agents, and to all warranties implied by applicable law. All warranties will be construed as conditions as well as warranties and will not be exclusive. Supplier must furnish to Masuku its standard warranty and service guaranty applicable to the Goods. All warranties and service guaranties will run both to Masuku and to its customers. If Masuku identifies a warranty problem with the Goods during the warranty period, Masuku will promptly notify Supplier of such problems and will return the Goods to Supplier, at Supplier's expense. Within 5 business days of receipt of the returned Goods, Supplier shall, at Masuku's option, either (i) repair or replace such Goods, or (2) provide a refund via check to Masuku’s “Bill to” address on the front page of this Masuku Order referencing this Masuku Order and the invoice number. Replacement and repaired Goods will be warranted for the remainder of the warranty period or 6 months, whichever is longer.
12. INDEMNITY: Supplier will indemnify, hold harmless, and at Masuku 's request, defend Masuku, its affiliates, officers, directors, customers, agents, and employees, against all claims, liabilities, damages, losses and expenses, including legal fees and cost of suit arising out of or in any way connected with the Goods or Services provided under this Masuku Order, including, without limitation: (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean up costs; (ii) any claim (whether related to tax, employment rights or otherwise) that any individual engaged by Supplier in relation to this Masuku Order is deemed to be an employee of Masuku; (iii) any claim based on the negligence, omissions or wilful misconduct of Supplier or any Supplier's staff or sub-contractors; and (iv) any claim by a third party against Masuku alleging that the Services or Goods, the results of such Services, Work Product or any other products or processes provided under this Masuku Order, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes. Supplier cannot settle any such suit or claim without Masuku's prior written approval. Supplier will pay or reimburse all costs that may be incurred by Masuku in enforcing this indemnity, including legal fees. Should Masuku’s use, or use by its subcontractors or customers, of any Services or Goods purchased from Supplier be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Supplier shall, at its sole cost and expense, either (a) substitute fully equivalent non-infringing Services or Goods; (b) modify the Services or Goods so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for Masuku, its subcontractors or customers the right to continue using the Services or Goods; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Services or Goods.
13. LIMITATION OF LIABILITY: in no event will Masuku be liable to supplier or supplier’s employees or any third party for any incidental, indirect, special or consequential damages arising out of, or in connection with, this Masuku order, whether or not Masuku was advised of the possibility of such damage.
14. INDEPENDENT CONTRACTOR: Masuku and Supplier are independent contractors and nothing in this Masuku Order will be construed as establishing an employer/employee or other agency relationship, partnership or joint venture between them.
15. RESCHEDULE/CANCELLATION: Masuku reserves the right to reschedule any delivery or cancel this Masuku Order at any time prior to commencement of any Services or prior to delivery of Goods. Unless expressly agreed in writing, Masuku will not be subject to any charges or other fees as a result of such cancellation.
16. REMEDIES: If Supplier breaches this Masuku Order, Masuku has all remedies available by law and at equity. For the purchase of Goods, Supplier's sole remedy in the event of breach of this Masuku Order by Masuku will be the right to recover damages in the amount equal to the difference between market price at the time of breach and the purchase price specified in the Masuku Order. No alternate method of measuring damages will apply to this transaction. Supplier has no right to resell Goods for Masuku's account in the event of wrongful rejection, revocation of acceptance, failure to make payment or repudiation by Masuku and any resale so made will be for the account of Supplier.
17. FORCE MAJEURE: Masuku will not be liable for any failure to perform including failure to (i) accept performance of Services or, (ii) take delivery of the Goods as provided caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, staff difficulties or shortage, inability to obtain materials, equipment or transportation. In the event Masuku is so excused, either party may terminate this Masuku Order and Masuku will, at its expense, return any Goods received to the place of delivery.
18. SEVERABILITY: If any provision of this Masuku Order is held by a court of competent jurisdiction to be unenforceable, invalid or illegal, it will be severed and the remainder of this Masuku Order will remain in full force and effect.
19. ASSIGNMENT & SUBCONTRACTING: Supplier may not assign, delegate or subcontract this Masuku Order or any of its rights or obligations under this Masuku Order, without the prior written consent of Masuku. Any assignment or transfer without such written consent will be null and void. This Masuku Order will inure to the benefit of, and be binding upon, the successors and assigns of Masuku without restriction.
20. NO IMPLIED WAIVER: No waiver of any right under, or breach of, this Masuku Order will be effective unless in writing and signed by an authorised representative of the party against whom the waiver is sought to be enforced. No delay or failure by either party to exercise any right under this Masuku Order, and no partial exercise of any right under this Masuku Order, will constitute a waiver of that right or any other right. No waiver of any right under, or breach of, this Masuku Order will operate as a waiver of any other right or breach, or of the same right or breach on a future occasion.
21. NOTICES: Except for Masuku orders which may be sent by local mail, facsimile transmission, or electronically transmitted, all notices and other communications will be in writing, and will be addressed to Supplier or to an authorised Masuku representative at the address set forth on the face of this order, and will be considered given when (i) delivered personally; (ii) sent by confirmed facsimile; (iii) sent by commercial overnight courier with written verification receipt; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.
22. GOVERNING LAW, JURISDICTION & VENUE: This Masuku Order will be governed by and construed in accordance with the laws of Germany. Each party consents to the exclusive jurisdiction of the German courts in connection with any dispute or controversy arising out of or in connection with this Masuku Order or its subject matter. The applicability of the UN Convention on Contracts for the International Sale of Goods is expressly waived by the parties and it will not apply to the Terms of this Masuku Order.
23. COMPLIANCE WITH LAWS:
23.1 General: Supplier shall comply fully with all applicable laws in the performance of this Masuku Order including, but not limited to, all applicable employment, tax, export control and environmental laws.
23.2 Hazardous Goods: If Goods include hazardous materials, Supplier represents and warrants that Supplier understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials.
23.3 Customs: Upon Masuku's request, Supplier will promptly provide Masuku with a statement of origin for all Goods and Customs and Excise documentation for Goods wholly or partially manufactured outside of Germany.
24. TERMINATION: Masuku may terminate this Masuku Order for its convenience at any time by providing Supplier no less than 10 days prior written notice or in the case of a material breach, immediately upon written notice.
25. SURVIVAL: Any obligations and duties which by their nature extend beyond the expiration or termination of this Masuku Order will survive the expiration or termination of this Masuku Order.
26. ENTIRE AGREEMENT, MODIFICATION & ORDER OF PRECEDENCE: This Masuku Order including its attachments, exhibits, referenced work statements and agreements, constitutes the entire agreement between Supplier and Masuku with respect to this subject matter. Subject to the foregoing, any modification, extension or amendment of this Masuku Order must be in writing and signed by a duly authorised representative of both parties. In the event, and to the extent, of any inconsistency between the terms and conditions of this Masuku Order and the terms and conditions of a separate written agreement between Supplier and Masuku concerning the Goods and Services, that separate agreement will control.
27. RIGHTS OF THIRD PARTIES: Nothing in this Masuku Order is intended to confer any benefit on any third party (whether referred to herein by name, class, description or otherwise) or any right to enforce a term of this Masuku Order and as such, no term of this Masuku Order is enforceable by any pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person (other than an affiliate of Masuku) which is not a party to it.