PURCHASE ORDER TERMS & CONDITIONS

This web site (“www.africanproductwarehouse.com”) hosted by African Product Warehouse Co Ltd Ghana. (“apwghana”) provides the terms and conditions governing the purchase order (including any attachments provided in connection therewith, the “PO”) that has been transmitted ( e-mail or other means) to you (“Supplier”) by apwghana or one of its affiliates identified in the PO (“Buyer”). Notwithstanding any prior dealings between Buyer and Supplier, the PO is expressly made conditional on, and Buyer expressly limits Supplier’s provision of any goods or services set forth in the PO to, the terms and conditions in the Agreement (as defined below).

By accepting the PO and/or starting performance, shipping any goods or furnishing any services (or providing any deliverable arising therefrom) in connection with the PO, Supplier acknowledges that Supplier has read, understands, and agrees to be bound by the terms and conditions set forth in the Agreement. If Supplier objects to any such terms and conditions, Supplier shall (a) notify Buyer in writing within three days after its receipt of the PO and (b) withhold acceptance of the PO and not start any performance, ship any goods or furnish any services (or provide any deliverable arising therefrom) in connection with the PO until/unless such objection is settled in writing signed by Buyer and Supplier.

The Site should not be bookmarked because these terms and conditions, to the extent applicable, are specific to the PO and may hereafter be revised, from time to time, by Buyer. Revised terms and conditions will be posted on the Site and, if applicable, will be immediately effective for purchase orders issued thereafter. Supplier should read the terms and conditions applicable to each subsequently issued purchase order that Supplier receives because by accepting such PO and/or starting performance, shipping any goods or furnishing any services (or providing any deliverable arising therefrom) after a revised version of the terms and conditions on the Site has been posted, Supplier will be deemed to have accepted the revised version.

1. Entire Agreement; Amendments. (a) It is the mutual desire and intent of Buyer and Supplier to provide certainty as to their respective rights and remedies against each other by defining the extent of their mutual undertakings. Accordingly, the PO and the signed agreement between Buyer or its affiliate, and Supplier or its affiliate, (i) that is in effect at the time the PO is issued, (ii) that contains a provision indicating that such signed agreement is the entire agreement between the parties with respect to its subject matter and (iii) under which the PO is issued, based on the subject matter of the PO or a statement in the PO expressly identifying such signed agreement (e.g., supply agreement or services agreement), or if no such signed agreement exists, then the PO and these terms and conditions (in either case, the “Agreement”) (1) contain the entire understanding of Buyer and Supplier with respect to the subject matter of the PO and incorporate all representations, warranties, covenants, commitments and understandings on which Buyer and Supplier have relied, and neither party makes any other representations, warranties, covenants, commitments or understandings; and (2) supersede all previous representations, warranties, covenants, commitments and understandings between Buyer and Supplier, written or oral, including any terms in an estimate, an offer or other similar document, with respect to the subject matter of the PO.

(b)  No modification, amendment or waiver of any term or condition in the PO or herein shall be effective, nor shall any additional or different terms or conditions, whether set forth in an invoice, confirmation, acceptance, shrink-wrap license, click wrap license, online terms of use or service or elsewhere, or pursuant to any course of dealing, usage of the trade or Buyer’s acceptance of any goods or services, be effective, unless set forth in a writing signed by Buyer and Supplier.

2. Notices. All communications relating to the PO, to be effective, shall be addressed, if from Supplier to Buyer, to the Buyer’s representative, and if from Buyer to Supplier, to the Supplier’s representative, identified in the PO or as otherwise provided to the other party in writing. Any communications transmitted electronically (e.g., via the Internet (including but not limited to EDI, cXML, e-mail)) (a) shall be considered a “writing” or “in writing,” (b) shall be deemed “signed” if a signature is affixed that is valid in accordance with applicable law (including a valid electronic signature) and (c) will constitute an “original” when printed. Communications introduced as evidence on paper will be admissible to the same extent and under the same conditions as other business records originated and maintained in documentary form and admissibility shall not be contested on the basis that the communication was not originated or maintained in documentary form.

3. Goods and Services set forth in the PO. Supplier shall (a) provide to Buyer the goods and services set forth in the PO; (b) keep Buyer advised of the status of the PO; (c) permit Buyer or its representatives to review and observe, from time to time upon reasonable notice, Supplier’s progress under or performance in connection with the PO; and (d) provide Buyer with such reports as are appropriate to the nature of the goods and services set forth in the PO and as may be reasonably requested by Buyer from time to time.

4. Inspection. All goods and deliverables are subject to final review, inspection and acceptance by Buyer notwithstanding any payment or initial inspection. Final inspection will be made by Buyer within a reasonable time after receipt of goods or deliverables.

5. Non-Conforming Goods or Services; Late Delivery; Replacement Personnel. (a) Buyer reserves the right to refuse any goods or services and to cancel all or any part of the PO if Supplier does not, or goods or services provided by Supplier to Buyer do not, conform to any applicable industry standards or practices, any applicable specifications, drawings, samples, descriptions or any other similar criteria in the PO or otherwise provided to Supplier by Buyer (the “Specifications”) or any terms and conditions set forth in the PO and herein. Acceptance of any part of the shipment of goods or any part of the services shall not bind Buyer to accept any non-conforming goods or non-conforming services simultaneously provided by Supplier, nor deprive Buyer of the right to reject any previous or future non-conforming goods or services. Buyer may, if it rejects any non-conforming goods, return such goods to Supplier at Supplier’s expense for transportation both ways, and Supplier shall not deliver to Buyer any replacement or substitution goods for such rejected goods unless so authorized by Buyer.

(b)  The delivery of goods and services shall strictly comply with the delivery date or delivery schedule, if any, provided to Supplier by Buyer. If at any time it appears Supplier will not meet such delivery date or schedule, Supplier shall promptly notify Buyer in writing of reasons for, and the estimated duration of, the delay. If requested by Buyer, Supplier shall ship such delayed goods by means to avoid or minimize delay to the maximum extent possible, including rerouting any shipment if appropriate and the use of a dedicated motor carrier or air freight, and any added costs shall be borne by Supplier.

(c)  With respect to any personnel assigned by Supplier to provide goods or services to Buyer, Buyer reserves the right to request for any lawful reason whatsoever the removal or reassignment of any such personnel, which right shall not relieve Supplier of any responsibility it has for the PO. Supplier shall as soon as possible thereafter provide replacement personnel satisfactory to Buyer. Supplier shall not, however, leave any position(s) without staffing acceptable to Buyer during any replacement assessment period(s).

(d)  Notwithstanding the foregoing, Buyer may cancel the PO and seek any other remedies available in accordance with applicable law, including cover and incidental and consequential damages from Supplier if Supplier does not, or goods or services provided by Supplier to Buyer do not, conform to the PO and these terms and conditions, including delivery of goods or services that do not strictly comply with the Specifications or the delivery date or schedule, if any, provided to Supplier by Buyer.

6. Cancellation. Buyer may cancel the PO at any time and for any reason upon written notice to Supplier. In the event of such cancellation, Supplier shall comply with any directions given by Buyer in such notice with respect to the goods and services in the PO and cease all other shipment and delivery of goods and services with respect to the PO. Within 45 days from the effective date of such cancellation, Supplier shall provide to Buyer all material, drawings, work-in-progress and co-developed intellectual property (in the state of completion or non-completion in which they exist on the date of cancellation) and submit an invoice to Buyer for all goods and services provided by Supplier and accepted by Buyer in accordance with the PO prior to cancellation, but only to the extent relating to such goods or services for which Supplier has not already submitted an invoice to Buyer. Buyer agrees to pay all undisputed amounts in accordance with the PO and these terms and conditions. In no event shall Buyer be responsible for any amounts in the aggregate greater than (a) the total that would have been due under the PO or (b) the value of the work done by Supplier in accordance with the PO prior to cancellations, whichever is less.

7. Invoice. Unless Buyer otherwise informs Supplier, Supplier shall issue a separate invoice for each shipment of goods delivered by Supplier and for each set of completed services. Supplier shall not issue any invoices before the goods or services are delivered to Buyer. Payment due dates, including discount periods, will be computed from the date the invoice is received by Buyer to the date Buyer’s check is mailed (or payment is otherwise transmitted by Buyer). All invoices submitted by Supplier shall include (a) the PO number; (b) a description of goods and/or services provided; (c) details around any travel and out-of-pocket expenditures approved by Buyer; and (d) a detailed description of the number of hours worked and fee per hour, if services are provided based on time and material pricing. Supplier shall send Buyer invoices promptly, and in any event within 12 months after delivering the goods or services (including software or other deliverables) to Buyer. Any invoices sent to Buyer more than 12 months after Supplier delivered the goods or services may be rejected by Buyer, and Buyer shall not be obligated to pay any amounts not properly invoiced within 12 months after the goods or services are delivered, including any pass-through expenses or taxes that otherwise would have been reimbursable in accordance with the PO.

8. Payments. Unless Buyer otherwise informs Supplier, payment terms shall be net 60 days after the receipt by Buyer of an undisputed invoice, or such other payment terms Supplier has selected in Buyer’s or its affiliate’s accounts .Buyer may withhold payment of any amounts which are disputed in good faith by Buyer. Except for amounts expressly set forth in the PO, Buyer shall not be responsible for any (a) other charges, including charges for delivery, parts or services and (b) expenses of Supplier or any mark-ups on any expenses of Supplier.

9. Warranty. (a) Notwithstanding any other representation, warranty or agreement to the contrary, Supplier unconditionally represents and warrants the following: (i) the goods and services supplied pursuant to the PO shall be of merchantable quality, conform to applicable industry standards and practices and the Specifications, be suitable for Buyer’s intended uses and purposes in the ordinary course of its business and be free from defects in design, material and workmanship; (ii) all services provided by Supplier shall be provided by qualified personnel reasonably skilled and trained in the performance of the services and in a workmanlike and professional manner; (iii) any documentation provided to Buyer by Supplier shall meet reasonable standards of clarity and detail; (iv) Supplier, the goods and services provided to Buyer and the use thereof by Buyer shall not infringe on any party’s intellectual property rights, including any party’s confidential information, trade secrets, copyrights or patents; (v) Supplier is currently under no obligation to any party, nor will Supplier enter into any obligation with any party, that could interfere with Supplier delivering the goods or services in the PO; and (vi) Supplier shall comply with, and the goods and services provided by Supplier shall be in compliance with, the law of the country , state and municipal statutes, laws, ordinances and regulations, including those relating to the environment, occupational safety and health, labor standards, assembly and supply of the goods, or suppliers respective Food and Drug Administration (including compliance with good manufacturing practices), International Standards Organization Rules 9,000 et seq. and any permits, licenses and certifications Supplier is required to have.

(b)  If Supplier, the goods and services provided to Buyer or the use thereof by Buyer infringes on any party’s intellectual property rights, including any party’s confidential information, trade secrets, copyrights or patents, the sale or use of such goods or services is enjoined, Supplier shall, at its expense and option, either procure for Buyer the right to continue to use such goods or services, replace such goods or services with equivalent non-infringing goods or services or modify such goods or services so they become equivalent non-infringing goods or services. The foregoing, however, shall not be construed to limit or exclude any other claims or remedies that Buyer may assert.

(c) All representations and warranties shall run to Buyer, its customers and the users of the goods or services or products into which such goods or services may be incorporated. All third party warranties and representations obtained by or applicable to Supplier in connection with any good and services in the PO are hereby deemed provided, in addition, for the benefit of Buyer, its affiliates and their users and customers. Nothing in this clause shall be construed as limiting in any way Supplier’s other warranties to Buyer.

10. Indemnification. Supplier agrees to indemnify and hold harmless Buyer, its affiliates (and its and their respective directors, personnel and agents) against any and all losses, claims, liabilities, damages and expenses, including without limitation reasonable attorney’s fees, (collectively, “Claims”) in connection with or arising out of the following: (a) any negligent or willful misconduct of Supplier, its personnel, agents, consultants or subcontractors; or (ii) Supplier’s (including its personnel, agents, consultants or subcontractors) breach of any provision of the PO or these terms and conditions.

11. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL BUYER OR ITS AFFILIATES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, MULTIPLIED OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, OR PREJUDGMENT INTEREST OR ATTORNEYS’ FEES OR COSTS BASED ON CLAIMS OF SUPPLIER OR ANY OTHER PARTY ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. NOTWITHSTANDING THE FORM (e.g., CONTRACT, TORT OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, IN NO EVENT WILL BUYER OR ITS AFFILIATES BE LIABLE FOR DAMAGES OR LOSSES THAT EXCEED, IN THE AGGREGATE, THE GREATER OF (a) THE AMOUNT DUE FROM BUYER AS SET FORTH IN THE PO BUT NOT ALREADY PAID TO SUPPLIER FOR THE GOODS OR SERVICES PROVIDED BY SUPPLIER IN ACCORDANCE WITH THE PO AND THESE TERMS AND CONDITIONS OR (b) . THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY DESPITE THE FOREGOING DISCLAIMER, EXCLUSION AND LIMITATION.