General Terms and Conditions of Sale (Kenya)

This version was created on June 12th, 2023.

1. Scope of Application

1.1. Our supplies, sales, services and related offers and contracts are governed by these general conditions of sale (hereinafter the “Conditions”) unless explicitly otherwise agreed upon in writing. In case of a regular business relationship with us, the Conditions shall also apply to future transactions in which the Conditions might not explicitly be referred to. By placing an order or entering into a contract with us, the buyer (the “Buyer”) confirms and is deemed to have read and accepted the Conditions and to have renounced his general terms and conditions, if any. We explicitly reserve the right to amend, modify or otherwise alter the Conditions.

1.2. In case of conflicting provisions, the provisions of our written confirmation of an order of the Buyer shall prevail over these Conditions.

 

2. Offers and Orders

2.1. Our offers are non-binding. Any order of the Buyer, placed either through a PO or in writing, shall be considered a binding offer to us to enter a contract on the terms and conditions stipulated therein. Contracts, as well as supplements, modifications, or ancillary agreements, shall be deemed entered into only upon:

  •  our written confirmation through a pro forma invoice (without prejudice to any reservations to which the pro forma is made subject) or
  •  initiation of fulfillment of the order. The Buyer cannot cancel any order, save with our explicit written approval.

2.2. Unless we timely receive a copy of our written confirmation of the order that is countersigned for approval by the Buyer or computer generated, we cannot be held liable in any way in relation to such order, whether contractually or extra-contractually. Save to the extent that our written confirmation of the order stipulates otherwise, the countersigned order will not be timely returned unless received by us within two business days after the date of our written confirmation.

 

3. Prices

3.1. Prices include the taxes, levies, duties, costs, insurance and charges, to the extent that they are for our account in accordance with the prevailing Incoterm® (as defined above). All other costs or charges, including value added tax or any similar foreign tax, levy or duty in any jurisdiction, are excluded for the Buyer’s account.

3.2. Unless explicitly otherwise agreed upon in writing, we shall be entitled to increase any agreed-on prices in function of the changed factors that represent the real costs relating to (the supply of) the goods, such as but not limited to import/export duties or other levies, taxes or duties, freight rate market or commodity market, as far as allowed by applicable law.

 

4. Delivery

4.1. The delivery dates are not binding but are merely given as an indication, unless expressly agreed upon otherwise in writing.

4.2. Our obligation to supply shall be suspended if the Buyer is in arrears with any payment towards us or any company connected with us, this without notice and without prejudice to our or the relevant company’s right to claim compensation. If any doubt exists as to the Buyer’s ability to fulfill his payment obligations towards us, we reserve the right to suspend transport or deliveries until satisfactory securities have been provided or advance payment has been made, as requested by us in our sole discretion.

 

5. Transport and Risk 

5.1. Unless expressly agreed upon otherwise in writing, all transport is carried out in accordance with the agreed Incoterms or, in the absence hereof, at the Buyer’s risk. Route and means of transportation shall be determined by us, as well as packaging of the goods. The Buyer’s wishes shall be taken into consideration as far as possible.

 

6. Acceptance, Inspection, and Claims

6.1. Without prejudice to his right to inspect the goods, the Buyer must take delivery of the goods immediately upon presentation. All costs incurred by us relating to the Buyer’s refusal to take delivery of the goods are for the Buyer’s account, including costs of transportation and storage. If the risk for loss or damage to the goods has not been transferred yet to the Buyer according to the prevailing Incoterm, such risk shall in any event transfer to the Buyer on the moment of refusal to take delivery.

6.2. The Buyer must inspect the goods without delay. Any claims concerning quality or quantity must be notified to us by registered letter or courier, on the following address: Manuchar Kenya Ltd, 5th Floor Crater Building Next to NextGen Mall, Mombasa Road, P.O Box 37182 – 00200 -00506, Nairobi, Kenya. If we receive no such claim within 7 calendar days after the Buyer has taken delivery of the goods, the goods shall be deemed accepted.

6.3. Defects that could not have been discovered even through diligent inspection must be notified in the same manner as set out in the preceding paragraph, within 7 calendar days after discovery thereof.

6.4. No claims will be accepted once the goods are processed or resold, or in the case of obvious notable defects after expiration of a period of 45 days after the Buyer has taken delivery of the goods. Further, the Buyer shall lose all rights to claim for defects in case the goods were improperly handled or stored by or for the account of the Buyer. The period to claim for hidden defects shall in any event be limited to 6 months after the Buyer has taken delivery of the goods.

6.5. No express or implied warranties are made by us regarding the suitability of the goods for the purpose intended by the Buyer.

6.6. For justified or accepted claims, we shall, at our sole discretion, either

6.7. Supply additional or replacing goods at our expense; or

6.8. Partly or in full refund the invoice amount or issue a credit note.

 

7. Retention of Title 

7.1. The goods remain our property until full and final payment of the related invoice. In the event the Buyer buys from other suppliers or manufacturers goods that are identical or similar to the goods bought from us, the Buyer shall be obliged to, if not yet the case, affix to the goods a sign clearly indicating that the goods are our property.  Until goods are paid for in full our mark and numbers shall not be removed or erased.

7.2. In the event of seizure of the goods under retention of title by any third party, in particular by attachment, the Buyer shall immediately disclose to such third-party our ownership of the goods and notify us thereof accordingly to enable us to assert our ownership rights. To the extent that the third party is unable to reimburse us for the legal costs incurred in this connection, the Buyer shall be liable for payment of such costs.

7.3. If this retention of title is not enforceable towards third parties under any relevant law or in any relevant jurisdiction, such as but not limited to the law/jurisdiction of the territory in which the goods are located, or if such retention of title loses its effect as a result of processing or reselling of the goods or as a result of any other reason, under any relevant law or in any relevant jurisdiction, we shall be conferred the security and collateral rights permissible under such law/in such jurisdiction as security for due payment of the invoice. The Buyer shall inform us of the measures we have to take to safeguard our rights and shall co-operate in taking such measures.

 

8. Payments

8.1. Payments are to be performed on the terms and in the currency as mentioned in the invoice. If the payment term and currency are not mentioned in the invoice, the following default terms will apply; payments must be done within 7 days as per agreed payment terms days from the date of the invoice in USD dollars. The amounts shown on the invoice shall be due and payable without any deductions or set-off whatsoever, unless with our express written consent. No claim or invoice-discussion will entitle the Buyer to suspend the payment of the related invoice. Payments shall have to be performed at the address of our registered office, i.e. 5th Floor, Crater Building Next to NextGen Mall., Mombasa Road, P.O Box37182 – 00200 Nairobi, Kenya. Any claim relating the invoice must be presented to us within 7 calendar days upon receipt, by registered letter or courier addressed as set forth in paragraph 6.2 above.

8.2. Any loss, as a consequence of the volatility in exchange rates is for the Buyer’s account.

8.3. The Buyer undertakes to collect/accept all documents when presented by our or the bank’s agents. Further, he will carry out all measures necessary for the immediate transfer of necessary funds.

8.4. Interest shall accrue on overdue payments to us at commercial rates increased by one percent.

8.5.  Additionally, the amount of any overdue payment to us will automatically be increased by 15% as contractual and irreducible damages for administration expenses and commercial perturbations, without prejudice to our right to claim higher damages.

8.6. In the event the Buyer fails to meet a payment date:

  • all other outstanding invoices will become immediately due and payable without the requirement of any notice and
  • we reserve the right to suspend or cease further supplies to the Buyer.

 

9. Force Majeure, Hardship 

9.1. We are entitled to suspend the performance of our contractual obligations towards the Buyer under any contract (including, for the avoidance of doubt, an accepted order of Buyer) without incurring any liability, to the extent that:

  • force majeure; or
  • any act of god, natural disturbance, adverse weather, war, employee accident, terrorism, riot, fire, explosion, accident, flood, epidemics, quarantine restrictions, highly contagious or infectious diseases, sabotage, mechanical breakdown, (supplier) plant shutdown, delay during transportation, the impossibility to obtain fuel, power, transporter, materials or equipment from our usual resources at reasonable prices, suspension of transport, governmental laws, regulations or orders; or
  • any supply chain interruption, caused by any reason whatsoever; or
  • any other cause beyond our reasonable control;

delays, restricts, limits, or renders commercially infeasible such performance. We will notify the Buyer of such suspension as soon as reasonably possible. We will have no obligation to procure goods from other sources. If the aforementioned occurrence lasts for a period of more than one (1) month, we will be entitled to withdraw from the contract without the Buyer having any right to compensation.

9.2. If continued performance of our contractual obligations has become excessively onerous due to an event beyond our reasonable control which we could not reasonably have been expected to have taken into account at the time of the conclusion of the contract; and we could not reasonably have avoided or overcome such event or its consequences, the parties shall negotiate alternative contractual terms in good faith. If such negotiations fail or are not concluded within a reasonable time period, we shall be entitled to withdraw from the unfulfilled obligations of the contract without incurring any liability.

 

10. Limitation of Liability 

Unless explicitly stated otherwise in these Conditions, any and all claims for damages for impossibility to perform, breach of contract, breach of pre-contractual obligations or extra-contractual liability vis-à-vis our employees, officers, agents, auxiliaries, or ourselves shall be excluded except to the extent that damages have been caused by the result of willful misconduct or fraud. The Seller shall, moreover, not be liable to the Buyer, for any loss of profit, loss of use, loss of income, loss of production or accruals, loss of contracts, loss of goodwill or for any financial or economic loss or for any other indirect or consequential damage.

 

11. Sanctions, Export Control, and Anti-Boycott

11.1. "Sanctions" means any trade, economic and/or financial sanctions or export controls including without limitation any relevant law, regulation, order, ordinance, resolution, decree, restrictive measure or other requirement having the force of law, as well as import and export restrictions related to military and dual use products and technologies, chemical precursors (drugs and explosives), dangerous chemicals, pesticides and substances that deplete the ozone layer), adopted by the US, UK, EU (or its respective Member States), UN or any other government authority.

11.2. The Buyer represents and warrants that neither it nor any person or entity that directly or indirectly owns or controls it, that it directly or indirectly owns and controls, or for which it is acting on behalf of or at the direction of is a designated target of any Sanctions, or an individual ordinary resident in or an entity incorporated under the laws of a country or territory subject to comprehensive sanctions administered by the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”) (“Sanctioned Country”) (collectively “Sanctioned Person”). The Buyer agrees and undertakes to the other that it and its agents, contractors and representatives will fully comply with the requirements of all applicable Sanctions in the performance of this contract.

11.3. The Buyer agrees and undertakes that the goods being purchased in performance of this Agreement will not be directly or indirectly resold to a Sanctioned Person or a Sanctioned Country, transported on a vessel flying under the flag of a Sanctioned Country or that is a Sanctioned Person, or otherwise dealt with in any way which would cause a breach of Sanctions by us, our banks, insurers, agents, contractors, representatives or shareholders (“Manuchar Related Parties”) or otherwise expose us or Manuchar Related Parties to the effects of any Sanctions.

11.4. The Buyer further represents and warrants that it will not make payment for the goods through or via such country, bank, or other entity or body or facility, as would cause a breach of Sanctions by us or Manuchar Related Parties, or which would expose us or Manuchar Related Parties to the effects of any Sanctions, and that it will ensure that payment is made for the goods in full without violating Sanctions.

11.5. The Buyer warrants that our goods will not be used by its customer or supplied by its customer in a way which would cause a breach of Sanctions by us or Manuchar Related Parties or otherwise to the effects of any Sanctions.

11.6. The parties will not cooperate with, agree to, or comply with any terms or requests, including documentary requests, which violate or are otherwise prohibited or penalized under the Anti-Boycott laws or regulations of the US, UK, UN, the EU (or its respective member states) or any other government authority.

11.7. Without prejudice to the foregoing, the Buyer agrees to cooperate with any reasonable requests for information and/or documentary evidence to support and/or verify compliance with this clause.

11.8. Each and every obligation, warranty and undertaking in this clause shall be deemed to be a condition of the contract and breach of any of these warranties or undertakings entitles the party not in breach to terminate the contract immediately and unilaterally without any further notice nor any further liability towards the other party.

 

12. Anti-Corruption and Anti-Money Laundering 

12.1. Each party respectively agrees and undertakes to the other that, in connection with this contract, it will fully comply with all applicable laws, regulations, orders, ordinances, resolutions, decrees, or restrictive measures and/or other requirements having the force of law, adopted by any state or government or international organization such as, but not limited to, the EU, the UN relating to anti-bribery and anti-money laundering, the US and the U.S. Foreign Corrupt Practices Act of 1977 and the UK and the UK Bribery Act of 2010 (hereinafter collectively the “Anti-Corruption and Anti-Money Laundering Laws”). In particular, each party respectively represents, warrants and undertakes to the other that it shall not, directly or indirectly, pay, offer, give or promise to pay or authorize the payment of, any monies or other things of value to, or confer a financial advantage on: a. a government official or an officer or employee of a government or any department, agency or instrumentality of any government; b. an officer or employee of a public international organization; c. any person acting in an official capacity for or on behalf of any government or department, agency, or instrumentality of such government or of any public international organization; d. any political party or official thereof, or any candidate for political office; or e. any other private person, individual or entity. Each and every obligation, warranty and undertaking in this clause shall be deemed to be a condition of the contract.

12.2. The Buyer agrees and undertakes that it and its agents, contractors and representatives will fully comply with the requirements of all applicable Anti-Corruption and Anti-Money Laundering Laws in the performance of this contract.

13. Data Privacy

All personal data collected will be treated in accordance with applicable legislation. The most recent version of our privacy statement will always be available at https://www.manuchar.com/worldwide/en/privacy-statement-for-business-and-external-relations.

 

14. Severability 

The invalidity, illegality, or unenforceability of any provisions of these Conditions under a certain law or jurisdiction shall not affect the validity, legality or enforceability of any other provision in these Conditions, which shall remain in full force and effect.

 

15. Law and Disputes 

  • Clauses customarily used in commerce shall be interpreted in accordance with, and any reference to an Incoterm shall be a reference to, the Incoterms 2020 of the International Chamber of Commerce.
  • Within the scope of application of these Conditions, the terms 2004 are applicable and the Buyer agrees to be bound by such ICC Terms 2004.
  • These Conditions as well as all legal relations between the Buyer and ourselves within the scope of application of these Conditions are governed by the law of Kenya, excluding the laws of conflict.
  • All disputes arising out of or in connection with these Conditions or any legal relations between the Buyer and ourselves within the scope of application of these Conditions shall be finally settled by a single arbitrator appointed by the Chairman for the time being of the Institute Chartered Arbitrators of Kenya.  Provided always that referral of any dispute to arbitration must be done within the 45 days referred to at Condition 6.4 above and in no event shall the arbitrator have any jurisdiction concerning the pricing.

 

16. Confidentiality

16.1. Confidential information is defined as all information of any form whatsoever (oral, written, graphic, electronic, etc.) exchanged between Manuchar Kenya and the Customer in the context of the respective business transactions.

16.2. Each Party and its Employees must keep confidential all confidential information received from the other Party in the performance of the transaction. Additionally, the Parties may only use the confidential information for the purposes of the business transaction. The Parties may not disclose the confidential information to third parties without the consent of the other Party in writing. At a minimum, any information designated as confidential by one of the Parties will be considered as such.

The following are not considered to be confidential information:

  • information obtained legally from a third party not bound by any confidentiality obligation or secrecy.
  • information that a Party already knew before it was provided for the purposes of the transaction.
  • information a Party developed independently without violating this Agreement.
  • information that came into the public domain without the doings or error of the Party receiving the information.
  • information that must be made public pursuant to a judicial or administrative decision.

The restrictions in this clause shall continue to apply after the termination of this Agreement without limit in point of time but shall cease to apply to Confidential Information that may come to the public domain.

 

17. Reservation Clause 

       Should any of these terms and conditions be held or found to be unenforceable, such finding or holding shall not affect the surviving terms and conditions and the parties will negotiate in good faith to replace such conditions with suitable conditions.