BRUSH MANUFACTURERS LIMITED
TERMS AND CONDITIONS OF SALE
1. Definitions
1.1 In these Terms and Conditions:
“Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or whose Order for the Goods is accepted by the Seller.
“Contract” means the contract for the purchase and sale of the Goods.
“Delivery Date” means the date(s) specified in the Order.
“Goods” means the goods (including any instalment of the Goods or any parts for them) which the Seller is to supply in accordance with these Terms and Conditions and any goods supplied in substitution for or in replacement of or in addition to such goods.
“Price” means the price payable for the Goods as stated in the Order and subject to these Terms.
“Order” means the Seller’s sales Order to which these Terms and Conditions are annexed by reference.
“Seller” means Brush Manufacturers Limited.
“Terms and Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
“Writing” includes letter, email, Whatsapp message and comparable means of communication.
1.2 Any reference in these Terms and Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation of the Seller which is accepted by the Buyer, or any Order of the Buyer which is accepted by the Seller, subject in either case to these Terms and Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such Order is made or purported to be made, by the Buyer.
2.2 No variation to these Terms and Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3 he Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations that are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.Orders and specifications
3.1 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s Order (if accepted by the Seller).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim of infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of any cancellation. However, from the date of the Order, a 2-day cooling off period will be allowed during which cancellations or reductions of the Order will be accepted by the seller without penalty. Without prejudice to the generality of the foregoing, should the Buyer purport without the agreement in Writing of the Seller to cancel any Order which has been accepted by the Seller or refuse to accept delivery of any of the Goods such action shall constitute a breach of the Contract and, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 50% of the invoice value of the Order so purported to be cancelled or 50% of the invoice value of the Goods delivery of which is so refused (as the case may be). In the event of the Seller so requiring the Buyer shall pay such amount to the Seller (without any deduction) within 7 days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such breach of agreement on the part of the Buyer. For the avoidance of doubt, in the event that the Seller opts to require the Buyer to pay liquidated damages as set out above, and the Buyer duly pays such liquidated damages, neither party shall have any further liability to the other in relation to the Goods in respect of which such liquidated damages are paid.
4. Price of the goods
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the Order. Where the Goods are supplied for export, the Seller’s published export price list relating to the country of destination shall apply. All prices quoted are valid for 30 days only or such lesser period as shall be stated by the Seller on the face of the relevant quotation or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture)or to any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 The price is exclusive of any applicable value added tax that the Buyer shall be additionally liable to pay to the Seller.
5. Terms of payment
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods at any time before delivery of the Goods.
5.2 All Invoices are payable net by bank transfer or cash deposit to the Seller’s designated bank account, unless credit facilities have been approved, in which case Invoices are payable as per the credit terms agreed. The time of payment of the invoice shall be of the essence of the Contract. In the event that the Buyer opts for payment by cheque, bounced cheques shall attract a fee of K.Shs.2,000/= + VAT.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to.
5.3.1 cancel the contract or suspend any further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest on the amount unpaid, at the rate of 6 per cent per annum above the CBK lending rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.4 In the event that the Seller shall cancel the Contract under the provisions of Clause 5.3.1 above, the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation. Without prejudice to the generality of the foregoing, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 50% of the invoice value of the contract so cancelled. In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within seven days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such cancellation.
6. Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller shall be entitled to make part delivery of the Goods at any time.
6.3 Where the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms and Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason, other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be collected from the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection: or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and payment in full of all sums due from the Buyer to the Seller whether under the Contract or by virtue of any other liability of the Buyer to the Seller.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for such part of the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, as is equivalent to the invoice value of the Goods and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) become due and payable.
7.6 For the avoidance of doubt, nothing contained in this Clause 7 shall entitle the Buyer to return any of the Goods to the Seller save as expressly provided in these terms and conditions or as expressly agreed in writing between the Seller and the Buyer.
8. Inspection and Non-Conforming Goods
8.1 The Buyer shall within 7 days inspect the Goods after receipt of such Goods. The Seller shall not unreasonably refuse any request by the Buyer to inspect the Goods at the premises of the Seller prior to dispatch, and the Seller shall provide the Buyer with access to a sample of the Goods as reasonably required for inspection and testing.
8.2 If the Buyer pays for the Goods or part of them before the inspection, the Seller understands and accepts that such payment shall not constitute an acceptance of the Goods nor impair the Buyer’s rights to inspect and/or test the Goods, subject to these Terms.
8.3 If, as a result of inspection or testing, the Buyer is not satisfied that the Goods comply in all respects with the specifications, and the Buyer so informs the Seller within 7 days of delivery of the Goods, the Seller shall take such steps as are necessary to ensure compliance.
8.4 Strictly only non-conforming Goods shall be returned to the Seller, but risk of loss or damage shall remain with the Buyer until the delivery of the non-conforming Goods to the Seller. The Buyer shall provide the Seller or its authorized agent all facilities as reasonably required inspection the non-conforming Goods. The Buyer guarantees, in this respect, not to make any malicious claims of non-conformity.
9. Warranties, Liabilities and Rejection of Goods
9.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification subject to such tolerances as are reasonable and as are normally accepted in the trade and will be free from defects in material and workmanship at the time of delivery.
92.2 The above warranty is given by the Seller subject to the following conditions:
9.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer:
9.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alternation or repair of the Goods without the Seller’s approval.
9.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
9.2.4 the above warranty does not extend to Goods not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
9.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered In accordance with the Contract.
9.4 Any claim by the Buyer which is based on short delivery or non-delivery shall be notified to the Seller in Writing (in the case of short delivery) within 3 days of delivery and (in the case of non-delivery) within 7 days of receipt by the Buyer of the Seller’s Invoice for the goods which the Buyer claims have not been delivered. If the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject any goods that have been delivered and the Seller shall have no liability for such short delivery or non-delivery.
9.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms and Conditions, the Seller shall be entitled to replace the Goods or refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
9.6 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever(and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Terms and Conditions.
9.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
9.7.1 Act of God, pandemic, explosion, flood, tempest, fire or accident;
9.7.2 war or threat of war, sabotage, insurrection, civil disturbance, or requisition;
9.7.3 acts, restrictions, regulations, by-laws, prohibitions or measures of any kind made or passed by the county or national government;
9.7.4 import or export regulations or embargoes;
9.7.5 strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
9.7.6 difficulties in obtaining raw materials labour, fuel, parts or machinery;
9.7.7 power failure or breakdown in machinery.
10. Insolvency of buyer
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration Order or becomes bankrupt (being an individual or firm) or goes into liquidation (being a company) (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
101.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered, but not paid for, the outstanding amount shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11. Export terms
11.1 In these Terms and Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Terms and Conditions, but if there is any conflict between the provisions of Incoterms and these Terms and Conditions, the latter shall prevail.
11.2 Where the Goods are supplied for export from Kenya, the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply, notwithstanding any other provisions of these Terms and Conditions.
11.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and notifying the Seller the requirements of any such legislation or regulations requiring action on the part of the Seller and for the payment of any duties in connection with the Goods.
11.4 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered FOB from the air or sea port of shipment.
11.5 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller are exclusive of carriage charges.
11.6 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of damage during transit.
11.7 Payment of all amounts due to the Seller shall be made in such manner as shall be agreed between the Seller and the Buyer in Writing.
12. Credit Limit and Security
12.1 Upon the Seller’s request, the Buyer shall provide all necessary financial documents relating to its business including financial performance data to the Seller for purposes of credit assessment. The Seller shall be at liberty to determine the credit limit and credit terms applicable to the Buyer.
12.2 The Seller shall have the discretion to downgrade the credit terms including credit limit at any time as per the Seller’s independent assessment.
12.3 If the Buyer fails to meet the Seller’s requirements as per its credit policy, the Seller shall be entitled to immediately suspend all supplies without being liable in any manner until such time as any default or situation has been remedied to the Seller’s satisfaction. Interest for later payment shall be applicable as set out in clause 5.3.3 above.
12.4 Unless specifically waived in writing by the Seller, the credit limit granted to the Buyer shall be fully secured by a bank guarantee, cash security or letter of credit issued by a bank acceptable to the Seller or through such other forms of security as may be acceptable to the Seller.
13. Data Protection Act, 2019
13.1 We may transfer information about you to our financiers, who:
13.1.1 may use, analyse and assess information about you, including the nature of your transactions, and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claim, underwriting and training purposes and in making payments and servicing their agreement with us;
13.1.2 from time to time, may make searches of your record at credit reference agencies where your record with such agencies may include searches made and information given by other businesses; details of their searches will be kept by such agencies but will not be seen by other organisations that may make searches;
13.1.3 may give information about you and your indebtedness to the following:
13.1.3.1 our or their insurers for underwriting and claims purposes;
13.1.3.2 any guarantor or indemnifier of your or our obligations to enable them to assess such obligations;
13.1.3.3 their bankers or any advisers acting on their behalf;
13.1.3.4 any business to which your indebtedness or our arrangements with our financiers may be transferred – to facilitate such transfer; or
13.1.4 may monitor and/or record any phone calls you may have with them, for training and/or security purposes.
13.2 in the event that they transfer all or any of their rights and obligations under their agreement with us to a third party, we may transfer information about you to enable the third party to enforce their rights or comply with the obligations.
13.3 We will provide you with details of our financiers on request, including a contact telephone number if you want to have details of the credit reference agencies and other third parties referred to above from whom they obtain and to whom they may give information about you. You also have a right to receive a copy of certain information they hold about you if you apply to them in writing at the prevailing fee.
14. General Terms
14.1 The Order is personal to the Buyer and the Buyer shall not assign or transfer or purport to assign or transfer to any other person any of its rights or delegate any of its obligations under these Terms, except with the prior Written consent of the Seller. Any purported assignment of rights or delegation of performance in violation of this section is void.
14.2 The Contract for the sale of the Goods between the Seller and the Buyer constituted in the Order is on a non-exclusive basis. The Seller has the right to engage other buyers to provide the same or similar Goods as provided by to the Buyer.
14.3 The Contract is not intended to create and shall not be construed as creating between the Buyer and the Seller the relationship of principal and agent, joint ventures, co-partners or any other similar relationship, the existence of which is hereby expressly denied, nor shall the Seller be considered in any sense an affiliate or subsidiary of the Buyer.
14.4 A notice required or permitted to be given by either party to the other under these Terms shall be in writing as defined in clause 1.1 and addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified under this provision to the party giving the notice.
14.5 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.6 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.
14.7 These Terms may be signed in one or more counterparts, which together will form a single agreement. These Terms may be signed electronically.
14.8 The contract shall be governed by the laws of Kenya and the High Court of Kenya shall have jurisdiction for any dispute, controversy or claim arising out of or in connection with these Terms and Conditions.
