Purchase Order : Terms And Conditions

This Purchase Order (“PO”) sets forth the standard terms and conditions governing the purchase of goods or services by Alchemy Group Agency (Pty) Ltd (Registration Number: 2016/025126/07) (“Agent”) on behalf of its Clients (“Clients”) from the supplier (“Supplier”) (a reference to “Parties” shall mean Supplier and Agent). By accepting this PO, the Supplier agrees to be bound by the terms and conditions stated herein.

1. AGENT’S ROLE: The Agent is responsible for managing and planning experiential projects on behalf of its Clients (“Events”), and may outsource the procurement of certain goods or services to the Supplier in pursuance hereof.

2. ACCEPTANCE OF PO: The Agent shall supply its brief to the Supplier in respect of the relevant goods and services it wishes to procure. Based upon this brief, the Supplier shall generate a quotation. In confirmation of acceptance of the quotation and prior to the Supplier securing any goods or services for the Agent, the Agent shall furnish the Supplier with the PO, which shall include the agreed price of the goods or services (“Price”). The Supplier’s acceptance of this PO can be made either in writing or by commencing the performance of the goods or services described herein. If the Supplier does not reject the PO within 7 (seven) calendar days, it shall be deemed to have accepted this PO. Any changes or modifications to this PO must be agreed upon in writing by the Parties.

3. GOODS OR SERVICES: the Supplier shall provide the goods or services specified in this PO in accordance with the specifications, quantities, quality standards, delivery dates, and any other requirements stated herein. Any deviations from these specifications must be approved in writing by the Agent. It is understood that the goods or services provided by Supplier are for the benefit of the Client.

4. PRICE AND PAYMENT:
4.1. Upon acceptance by the Supplier of the Agent’s PO, the Supplier shall invoice the Agent. The Supplier’s invoice in respect of this PO shall be submitted to the Agent’s Financial Department, and must specify all relevant details, including the PO number, and both Parties’ full company details and VAT numbers. Failure to do so may lead to delays in payments.

4.2. The Agent shall pay the Supplier the Price within 30 (thirty) calendar days of the later of: (i) the Client’s Event; or (ii) the date of receipt of the Supplier’s invoice, provided that if delivered goods and/or services or any part thereof are in dispute and the items in dispute can be reasonably separated, the Agent shall, pending the resolution of the
dispute, pay the undisputed portion and be entitled to withhold the undisputed portion.

5. INTELLECTUAL PROPERTY:
5.1. “IP” means all intellectual property and any rights attached thereto including copyright, trademarks, trade names, service marks, patents, designs, inventions, source codes, trade secrets, confidential information, know-how and any other rights of a similar character lawfully owned by a Party (regardless of whether such rights are registered or not). “Background IP” means all IP developed, procured and/or lawfully possessed by or on behalf of the respective Parties and/or any one of them prior to this PO and pertaining to fields of business, their operations and/or their Clients. “Project IP” means all IP developed and created by the Parties pursuant to this PO, which may incorporate,
but is distinct from, the Background IP. “Improvements” mean enhancements, developments, adaptations and/or modifications made to the pre-existing Background IP owned by one Party.

5.2. Save for as provided in this PO, neither Party will be entitled to use the other Party’s Background IP without the prior written consent of that other Party, and then only to the extent so authorised, nor will any Party do or cause to be done any act or omission which would prejudice or compromise a Party’s Background IP.

5.3. Each Party shall be deemed to be and shall remain the sole proprietor and/or lawful possessor of its own Background IP. The Parties acknowledge that each of them may, in the process of rendering the services or providing the goods under the PO, be using their respective Background IP to create the Project IP, which Project IP
the Parties hereby agree to cede and assign to the Agent.

5.4. All Improvements to a disclosing Party’s Background IP, including all inventions, designs, trade marks, copyrighted works, or other IP (excluding the Project IP), shall be deemed to belong, and is hereby irrevocably assigned, to such disclosing Party. In respect of such Improvements, the Recipient hereby undertakes to assist the disclosing Party in taking assignment of and applying for the registration, where relevant, of such inventions, designs, trade marks, copyrighted works, or other IP in the name of the disclosing Party only.

5.5. In order to give effect to the intention of the Parties, to the extent that there are any components of the Supplier’s Background IP included in the goods or services or Project IP, the Supplier herewith unconditionally and irrevocably grants to the Agent, a royalty-free, worldwide, perpetual, non-exclusive, non-transferable license to use such Background IP solely in connection with such goods or services or Project IP.

5.6. The Supplier shall not, without the prior written consent of the Agent, publicise, display, post on social media, make any press release or public statement, advertise or disclose to the public any notices, testimonials, correspondence, videos, photographs, images, or disclosures of any kind concerning this PO or the goods and services rendered by the Supplier to the Agent under this PO. The Agent’s “consent”, for the purposes of this provision, includes consent as to the form and content of the disclosure prior to its release. The Supplier shall not state or imply in any way that there is any partnership or other joint business arrangement with the Agent. Any such disclosures shall explicitly name, identify and credit the Agent.

6. CONFIDENTIAL INFORMATION: “Confidential Information” means all information disclosed by a Party that may reasonably be regarded as confidential, being information not in the public domain. The Parties will keep confidential all Confidential Information of the other, and the Parties agree and undertake not to disclose the other’s Confidential
Information without the other’s prior written consent unless such information must be disclosed in terms of an order of court or in terms of a statutory provision, provided that the Party making such compulsory disclosure shall inform the other party thereof an affords it the opportunity to contest such disclosure. The Parties may not use the other Party’s Confidential Information for any purpose otherwise than is set out herein. This provision shall survive completion or termination of this PO for any reason.

7. NON-CIRCUMVENTION: The Supplier acknowledges that Agent has established a business relationship with its Clients and introduced the Supplier to these Clients. The Supplier agrees that it will not enter into any direct contracts or transactions with the Agent’s Clients, whether during the term of this PO or at any time after completion or termination thereof, without the prior written consent of Agent. The Supplier shall not seek to circumvent the Agent or engage in any activity that may interfere with the Agent’s relationship with its Clients. The Supplier may not use the Agent’s Confidential Information in any manner whatsoever to circumvent the Agent. The Supplier shall not communicate directly with the Agent’s Clients or other contractors unless inevitable and unavoidably required in the supply, rendering and delivery of goods and/or services and with Agent’s prior written consent.

8. DELIVERY AND RISK:
8.1. Unless otherwise agreed by the Parties in writing, the Supplier’s delivery and installation of the goods and
rendering of the services:-

8.1.1. shall take place:- (i) at the address specified in the PO or as otherwise specified in writing by the Agent; and (ii) within the agreed time or date/s. It shall be deemed that time is of the essence and the Supplier’s failure to comply with the Agent’s delivery instructions shall entitle the Agent to reject the goods and/or services, in which event the Agent shall not be liable to the Supplier for payment in respect thereof, without prejudice to its right either to cancel the PO or to claim specific performance, and in either event to claim damages; and 8.1.2. shall be at the Supplier’s costs. The Price is inclusive of all packaging, labelling, delivery and installation costs.

8.2. Unless otherwise expressly agreed in writing between the Parties, or as otherwise indicated on this PO, all goods which form the subject matter of this PO shall be in respect of hire only (“Rented Goods”) and not for sale (“Sold Goods”), and ownership in the said goods shall at all times remain with the Supplier.

8.3. If the goods are Sold Goods, the Agent shall become the owner of such goods upon delivery, provided that:- (i) such ownership shall be suspended pending the resolution of any dispute between the Parties in relation to the quality thereof; and (ii) should Sold Goods be delivered in replacement thereof, the Agent shall become the owner of the
replaced Sold Goods (see clause 8.6 below).

8.4. “Delivery” shall be deemed as the point in time when the goods are offloaded from the vehicle at the delivery destination and, if applicable, installed by the Supplier. If the goods are Hired Goods (as opposed to Sold Goods), such risk shall be transferred from the Agent to the Supplier upon collection by the Supplier. “Collection” shall be deemed as the point in time when the goods are uninstalled / removed from the Event site. Risk of loss or damage to the:-

8.4.1. Sold Goods shall be borne by the Supplier until delivered to the Agent, at which point such risk will transfer to the Agent;

8.4.2. Rented Goods shall remain with the Supplier at all times, provided that the Agent shall be liable for any loss
or damage caused by the gross negligence or wilful misconduct of its employees or agents.

8.5. The signature of a delivery note by an authorised representative of the Agent shall only constitute confirmation of the type and quantity of goods received, but not the quality thereof. The Agent is under no obligation to inspect, examine or test any goods and/or services delivered to it, and its failure to do so shall not prejudice its rights to dispute the quality per clause 8.6 below. Approval of a sample, model or prototype of the goods by the Agent shall
not constitute a waiver of any of the provisions of this clause.

8.6. If the Agent reasonably disputes the quality of the goods delivered (the quality to be measured against best industry practice), the Agent may, within a period not exceeding 24 hours after delivery of the goods, notify the Supplier in writing, failing which it shall be deemed that the Agent accepts the quality of the goods. This clause shall apply mutatis mutandis to any services rendered by the Supplier to the Agent. In the event of such a dispute the Parties shall endeavour to have the disputed goods or services inspected within 24 hours (or sooner as circumstances may require) by an expert mutually agreed upon, whose determination in respect of quality shall be final and binding on the Parties. If the expert’s determination is in favour of the Agent, the Supplier shall collect the disputed goods and may, at the Agent’s written election, replace and deliver the replaced goods or services at its own expense. Risk of loss or damage to any disputed goods arising from whatsoever cause shall vest at all times with the Supplier. Clause 8.4 shall apply mutatis mutandis with respect to risk in any replaced goods.

9. INSURANCE: The Supplier shall maintain adequate insurance coverage to protect against any loss, damage, or liability that may arise in connection with the goods or services provided under this PO. In particular, the Supplier shall procure its own suitable insurance to cover it against losses arising from damage or destruction of (i) goods in transit; (ii) Rented Goods; and (iii) damage or destruction of the Supplier’s equipment or property whilst at the Event site.

10. INDEMNITY: The Supplier agrees to indemnify and hold the Agent, its directors, employees and its agents harmless against any claims, losses, or damages of whatsoever nature arising out of the Supplier’s performance under this PO.

11. SUBCONTRACTING: The Supplier shall be entitled to sub-contract its obligations under this PO, provided that at all times the Supplier will remain fully liable for all acts or omissions of its subcontractors as if they were the acts or omissions of the Supplier. Unless specific subcontractors are identified and requested by the Agent, the Supplier will use all reasonable endeavours according to best industry practice to appoint sub-contractors that are suitable for the Agent’s specific needs and requirements and will ensure that any sub-contractor so appointed complies mutatis mutandis with the provisions of this PO.

12. WARRANTIES: The Supplier represents and warrants that:-

12.1. it is aware of the purpose for which the goods and/or services under this PO are intended to be used; and

12.2. the goods or services provided under this PO shall be:- (i) free from defects in materials and workmanship; (ii) conform to the specifications, samples and requirements of suitability and purpose stated herein; (iii) conform to all applicable South African standards including, without limitation, product safety and product information standards prescribed, published and/or declared under any relevant South African legislation, regulation or other authority by any statutory governmental department or authority. The Supplier further warrants that it has all necessary rights, licenses, and authorizations to perform its obligations under this PO.

13. BREACH
13.1. Should a Party (the “Defaulting Party”) breach of any provisions of this PO and fail to remedy such breach within 7 calendar days after receipt of a written demand from the other Party (“Aggrieved Party”) to remedy such breach, the Aggrieved Party will be entitled, at its discretion, to either claim specific performance of this PO or cancel this PO, and in either instance to claim damages from the Defaulting party. Under no circumstances shall either Party be liable for any indirect or consequential losses, or any loss of profit that may be suffered for any reason.

13.2. Without derogating from this PO, the Supplier will remain responsible for any damages, restitution, or other remedy for which it is statutorily liable.

13.3. All costs, charges and expenses of any nature whatever which may be incurred by a Party in enforcing its rights in terms of this PO, including but without limiting the generality of the aforegoing, legal costs on the scale as between attorney and own client, irrespective of whether any action has been instituted, shall be recoverable on demand from the Party against which such rights are successfully enforced by a competent court and shall be payable on demand.

14. TERMINATION: Either Party may terminate this PO in the event of a breach by the other Party. The Agent is entitled to cancel a PO without penalty at any time by written notice to the Supplier. Termination shall not relieve either party of any rights or obligations accrued prior to the termination.

15. GENERAL
15.1. The rule of construction that this PO shall be interpreted against the party responsible for the drafting or preparation thereof shall not apply.

15.2. Save for terms implied by law, this PO constitutes and contains the entire agreement between them regarding the matters therein dealt with, and no provisions, terms, conditions, stipulations, warranties or representations of whatsoever nature, whether express or implied, have been agreed to or made by any of the Parties or on their behalf except as are recorded herein. Where the Parties have concluded and signed a Service Level Agreement (“SLA”) or other similar master contract and the provisions therein conflict with the provisions of this PO, the provisions contained in such SLA or other master contract shall take precedence over this PO. To the extent that such SLA or master contract is silent where there are provisions in this PO, the provisions of this PO shall apply.

15.3. No alteration, variation, amendment or purported consensual cancellation of this PO, or any waiver thereof shall be of any force or effect unless reduced to writing.

15.4. This PO and all matters and disputes arising herein or incidental hereto shall be governed by and construed in accordance with the laws of the Republic of South Africa;

15.5. If any provision of this PO is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions hereof, but such provision shall be fully severable and this PO shall be construed and enforced as if the illegal or invalid provision had never been included herein.

15.6. The Supplier choose its registered address or the physical address set out in its invoices / statements, and Agent chooses 3 Gwen Lane, Sandton, Johannesburg, as their respective domicilia citandi et executandi (“domicilium”) for all purposes arising out of or in connection with the PO. A party may from time to time by written notice to the other vary its domicilium to another address within the Republic of South Africa, which is not a post office box or poste restante. Such notified address shall become the domicilium of that party within 7 days of the other party receiving such notification. All notices by a party to the other in terms of the PO must be in writing, and where in term of the PO any communication is required to be in writing, the term writing may include communications by email, provided that receipt thereof by the addressee must be proven by the production of a an email transmission report, and the direct or indirect admission of receipt thereof by the addressee by return of email.

error: Content is protected !!