TERMS AND CONDITIONS (2023)
- Business Day: a day other than a Sunday or public holiday in the Republic of Kenya, when banks are open for business.
- Conditions: the terms and conditions set out in this document as amended from time to time in accordance with 11.4.
- Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
- Customer: the person or firm who purchases the Goods from the Supplier.
- Delivery Location: has the meaning given in 4.2.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control, including but not limited to:
- 6a) any act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, revolution, riot, civil commotion, insurrection, act (or threat) of terrorism or piracy, or sabotage;
- 6b) an act of God including, but not limited to, lightning, fire, earthquake, volcanic activity, floods and storms, typhoons, tsunami, cyclones or tornadoes and other extreme adverse weather or environmental conditions;
- 6c) epidemics, pandemics or plagues;
- 6d) explosions or chemical or radioactive contamination (other than those resulting from an act of war); or
- 6e) labour disputes including strikes, work-to-rule, go-slows or lock-outs that extend beyond the Plant or are widespread or nation-wide, or other analogous labour actions.
7 Goods: the goods (or any part of them) set out in the Order.
8 Order: the Customer's order for the Goods, as set out in the Customer's purchase order form through any of the Supplierâ€™s order platforms OR in the Customer's written acceptance of the Supplier's quotation OR in the Customer's purchase order form, the Customer's written acceptance of the Supplier's quotation, as the case may be.
9 Specification: any specification for the Goods, including any related plans and drawings, requested by the Customer to the Supplier through any of the Supplierâ€™s order platforms.
10 Supplier: PG Bison Kenya Limited for the purposes hereof or P.O. Box Number 45221-00100 Nairobi, Kenya.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a party includes its personal representatives, successors and permitted assigns.
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate in all respects.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance and confirmation of the Order, at which point the Contract shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for the period of time as stated in the particular quotation.
3.1 The Goods are described in the Supplier's website, pricelist, showroom or catalogue (as modified by any applicable Specification).
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier (on a full and unqualified basis) against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements in force from time to time.
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered
4.2 The Supplier shall deliver the Goods to the designated site specified in the Order (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
The Customer shall collect the Goods from the Supplier's premises either in Nairobi or Mombasa in the Republic of Kenya or such other location as may be advised by the Supplier prior to delivery within three (3) Business Days of the Supplier notifying the Customer that the Goods are ready for collection.
4.3 Delivery is completed on the completion of loading of the Goods, if collected from the Suppliers Premises, or arrival of the Goods at the designated site specified in the Order within the Delivery Location (as applicable). Upon arrival of the Goods at the designated site specified in the Order within the Delivery Location, risk in the Goods shall immediately pass to the Customer. Unloading of Goods at the Delivery Location shall be the sole responsibility of the Customer, and time shall be of the essence in respect thereof. For the avoidance of doubt, the Supplier shall not be required to unload the Goods at the designated site specified in the Order within the Delivery Location or to transport the Goods to the Customerâ€™s desired location within the Delivery Location and the Customer shall not be entitled to make any claims for loss or damage against the Supplier as a result of damage to the Goods after delivery by the Supplier.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or by the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any special, indirect or consequential howsoever arising. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to take OR accept delivery of the Goods within five (5) Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
- delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
- the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance) as determined by the Supplier in its sole discretion.
4.7 If ten (10) Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken OR accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 The Supplier warrants that on delivery, the Goods shall:
- conform with the Specification; and
- be free from material defects in design, material and workmanship.
5.2 Subject to 5.3, if:
- the Customer gives notice in writing to the Supplier together with the original invoice and signed proof of delivery within seventy two (72) hours from delivery that some or all of the Goods do not comply with the warranty set out in 5.1;
- the Supplier is given a reasonable opportunity of examining such Goods; and
- the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost,
the Supplier shall, at its option, repair or replace the defective Goods (for manufactured components and hardware only), or refund the price of the defective Goods in full.
The provisions of this clause 5.2 shall not apply to full sheet product and edging Goods.
5.3 The Supplier shall not be liable pursuant to the provisions of 5.1 in any of the following events:
- The Customer fails to give notice in writing to the Supplier in accordance with Clause 5.2(a);
- the Customer makes any further use of such Goods after giving notice in accordance with 5.2;
- the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
- the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
- the Customer alters or repairs such Goods without the written consent of the Supplier;
- the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; or
- the Goods differ from their description OR the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in 5.1.
5.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
- the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
- the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
- store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- notify the Supplier immediately if it becomes subject to any of the events listed in 9.1(b) to 9.1(d); and
- give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
- it does so as principal and not as the Supplier's agent; and
- title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in 9.1(b) to 9.1(d), then, without limiting any other right or remedy the Supplier may have:
- the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
- the Supplier may at any time:
- require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
- if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time up to seven (7) Business Days before delivery,
- any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
- any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods:
- includes amounts in respect of value added tax (VAT), which the Customer shall be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
- excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The Supplier may invoice the Customer for the Goods on or before completion of delivery.
7.5 The Customer shall pay each invoice submitted by the Supplier:
- within thirty (30) days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
- in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
7.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under 9 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest will accrue each day at the per annum rate which is four per cent (4%) above the Central Bank Rate set and published by the Central Bank of Kenya (CBK) from time to time provided that if the CBK ceases to publish the Central Bank Rate then the benchmark will be the base lending rate as may be published from time to time by KCB Bank Kenya Limited.
7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Limitation of liability
8.1 In respect of any loss or damage which directly arises out of or is connected with the performance or non-performance by the Supplier, its staff, duly authorized agents and sub-contractors, of any of its obligations under and Order, the Supplierâ€™s liability will be limited to the aggregate sum of K.shs 50,000/=.
8.2 The restrictions on liability in this 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; or
- defective products.
8.4 Subject to 8.3, the Supplier's total liability to the Customer shall not exceed K.shs 50,000/=.
8.5 Subject to 8.3, the following types of loss are wholly excluded:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential loss.
9.1 Without limitation to its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within seven (7) days of the Customer being notified in writing to do so;
- the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
- the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in 9.1(b) to 9.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices together with interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10. Force majeure
The Supplier shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances, the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for thirty (30), the Customer may terminate the Contract by giving thirty (30) days' written notice to the Supplier.
11.1 Assignment and other dealings
- The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
- The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
- Each party undertakes that it shall not at any time OR at any time during the Contract and for a period of three (3) years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by 11.2(b).
- Each party may disclose the other party's confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this 11.2; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Entire agreement.
- The Contract and these Conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.
11.4 Variation. No variation of the Contract and these Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
- delivered by hand or by pre-paid post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- sent by email to the address specified in the Order or the Contract.
- Any notice or communication shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
- if sent by pre-paid post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
- if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this 11.7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of the Republic of Kenya.
11.9 Jurisdiction. Each party irrevocably agrees that the High Court of Kenya shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
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