ADPACK General Terms and Conditions of Sale
1. Interpretation: 1.1 Definitions. “Buyer” shall mean the legal person(s) specified in the Order; “Delivery Address” means the address specified in the Order for delivery of the Goods; “Delivery Date” means the date(s) specified in the Order; “Goods” means the items, details and specifications (including any instalments of the goods or any part of them) described in the Order; “Price” means the price payable for the Goods as stated in the Order and subject to these Terms; “Order” means the Vendor’s sales order to which these Terms are annexed;; “Specification(s)” includes any plans, drawings, date or other information relating to the Goods as specified in the Order; “Terms” means the standard terms of purchase set out in this document; Vendor” means Adpack Limited; “Writing” and any similar expression includes electronic mail and comparable means of communication.1.2 Any reference in these Terms to a statute or provision of a statute shall by construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2. Basis of purchase: 2.1 Each Order constitutes an agreement by the Vendor to sell the Goods in the quantities and at the Price stated in the Order subject to these Terms. 2.2 No variation of the Order of these Terms shall be binding unless agreed in Writing between the authorised representatives of the Vendor and the Buyer. 2.3 In case of any inconsistency, prior understanding, agreements, promises or obligations, whether oral or written, express or implied, they are hereby superseded and extinguished by these Terms & Conditions. 2.4 TheVendor shall not be liable for the purchase of any goods except those contained in the Order and issued on an Adpack Limited Order or release authorisation form. 2.5 Unless otherwise stated in the Order, the Buyer shall pay all taxes and third-party expenses imposed on, in connection with, or measured by the transaction contemplated by this agreement in addition to the prices set forth on the Order.
3. Price and Payment: 3.1 The Price for the Goods is stated in the Order and, unless otherwise so stated, shall be: (a) exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoice); and (b) exclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than value added tax. 3.2 The Vendor reserves the right to increase the Price at any time by giving prior notice in Writing to the Buyer. 3.3 Unless otherwise stated in the Order, the Buyer shall settle payment for the Goods prior to receipt of goods or at presentation of the Vendor’s proper invoice. 3.4 The Buyer shall pay interest at a rate of 3% per month on all overdue amounts until the amounts are paid. 3.5 The Buyer shall not set off against the Price any sums owed by the Vendor to the Buyer.
4. Delivery; Title; Risk and Loss: 4.1 Unless otherwise specified in the Order, the Goods shall be offered on Ex-Works basis and the Goods are held at the disposal of the Buyer at the Vendor’s premises or at another named place, as stated in the Order. Should the Vendor agree to deliver the Goods, then the Goods shall be delivered on CFR basis using the means of transport that the Vendor deems appropriate and on the date or within the period stated in the Order and risk of loss of the Goods will pass to the Buyer upon such delivery by the Vendor. 4.2 Any dates fixed for the delivery of the Products by Adpack Limited shall be deemed as approximate dates of delivery only. The Vendor will not be liable for any losses, damages, penalties, or expenses for failure to meet any delivery date. 4.3 Notwithstanding delivery and the passing of risk in the Goods, title in the Goods shall not pass to the Buyer until the Vendor has received payment in full for the price of the Goods.
5. Inspection and Non-conforming Goods. 5.1 The quantity, quality and description of the Goods shall be as specified in the Order 5.2. The Vendor shall comply with all applicable laws and regulations of laws of the Republic of Kenya concerning the manufacture, packaging and delivery of the Goods. 5.3 The Buyer shall within seven (7) days inspect the Goods after receipt of such Goods. The Vendor shall not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage at the premises of the Vendor prior to despatch, and the Vendor shall provide the Buyer with access to a sample of the Goods as reasonably required for inspection and testing. 5.4 If the Buyer pays for the Goods or part of them before the inspection and/or test, the Vendor 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. 5.5 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 Vendor within seven (7) days of delivery of the Goods, the Vendor shall take such steps as are necessary to ensure compliance. 5.6 Strictly only bales containing non-conforming Goods shall be returned to the Vendor at the Vendors own expense but risk of loss shall remain with the Buyer until the delivery of the non-conforming Goods to the Vendor. The Buyer shall provide the Vendor or its authorised 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.
6. Warranties, Liabilities, Indemnities and Limitations. 6.1 The Goods are sold “as is” and the Vendor disclaims all warranties on quality, whether expressed or implied, including the warranties of merchantability and fitness for particular purpose. 6.2 The Buyer acknowledges that it has (a) not been induced by any statements or representations of any person with respect to the quality or condition of the Goods and that no such statements or representations have been made; (b) relied solely on the investigations, examinations, and inspections as the Buyer has chosen to make and that the Vendor has afforded the Buyer the opportunity for full and complete investigations, examinations, and inspections. 6.3 The Vendor will not be liable for any indirect, special, consequential, or punitive damages (including lost profits) arising out of or relating to these Terms or the transactions it contemplates (whether for breach of contract, tort, negligence, or other form of action) and irrespective of whether the Vendor has been advised of the possibility of any such damage. In no event will the Vendor’s liability exceed five per cent (5%) of the price of the non-conforming Goods paid by the Buyer to the Vendor for the specific Goods provided by the Vendor giving rise to the claim or cause of action. 6.4 No action arising out of or relating to these Terms of the transactions it contemplates may be commenced against the Vendor more than 12 months after the basis for such claim could have reasonably been discovered.
7. Force Majeure: The Vendor shall not be deemed to be in breach of these Terms by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods, if the delay or failure is beyond that party’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond either party’s reasonable control: (a) Act of God, explosion, flood, tempest, fire or accident; (b) war or threat of war, sabotage, insurrection, civil disturbance or requisition; (c) import or export regulations or embargoes; or (d) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of either the Vendor or of a third party).
8. Remedies: Without prejudice to any other right or remedy which the Vendor may have, if the Buyer fails to comply with these Terms, the Vendor shall be entitled, at its sole discretion, to avail itself of any one or more of the remedies stated herein, whether or not any part of the Goods have been accepted by the Buyer. The remedies hereby reserved shall be in addition to and not in substitution for any other remedies at law and in equity and no waiver of any breach of any terms shall constitute a waiver or any other breach of any other term of these Terms and in particular notwithstanding the foregoing all conditions or warranties implied by law shall apply to these Terms.
9. Confidentiality: The Vendor and the Buyer shall keep in strict confidence all technical or commercial know-how, specifications, drawings, or designs which are of a confidential nature or have been disclosed to the disclosing party by the recipient party and any other confidential information concerning the business or its Goods which the recipient party may obtain, and the disclosing party shall restrict disclosure of such confidential information to such of its employees, agents, or sub-contractors as need to know the same for the purpose of discharging its obligations and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the recipient party.
10. Termination: 10.1 The Vendor may cancel the Order in respect of all or part only of the Goods by giving notice to the Buyer at any time prior to delivery, in which event the Buyer’s sole liability shall be to pay to the Vendor the Price for the Goods actually completed and the reasonable cost of all works actually incurred by the Vendor in carrying out the Order to the date of such termination, less any amounts already paid. 10.2 The Buyer shall pay to the Vendor fair and reasonable compensation for work-in-progress at the time of termination. 10.3 The Vendor may terminate these Terms without liability to the Buyer by giving notice in writing to the Buyer if: (a) the Buyer commits any serious breach of these Terms and this breach (if capable of remedy) is not remedied within seven (7) days of notice being given by the Party not in breach requiring it to be remedied; or (b) an order is made or a resolution is passed for the winding-up of the other Party or an order is made for the appointment of an administrator, receiver and/or manager to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogues action in consequence of debt. 10.5 The termination of these Terms, however rising, shall be without prejudice to the rights and duties of the parties accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
11. Applicable Law, Jurisdiction and Dispute Resolution. These Terms shall be interpreted and governed in accordance with the laws of the Republic of Kenya. The place of jurisdiction for any dispute, controversy claim arising out of or in connection with these Terms or the sale of the Goods shall be referred to arbitration, including the validity, invalidity breach or termination thereof, in accordance with the laws of the Republic of Kenya; all and any arbitration shall be conducted in the Republic of Kenya.
12. Miscellaneous 12.1. 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 Vendor. Any purported assignment of rights or delegation of performance in violation of this section is void. 12.2 The agreement for the sale of the Goods between the Vendor and the Buyer is on a non-exclusive basis. The Vendor has the right to engage other Buyer(s) to provide the same or similar Goods as provided by to the Buyer. 12.3 This Order is not intended to create and shall not be construed as creating between the Buyer and the Vendor 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 Vendor be considered in any sense an affiliate or subsidiary of the Buyer. The relationship between the Vendor and the Buyer is that of principal and independent contractor. 12.4 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing 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. 12.5 No waiver by the Vendor of any breach of, or any default of under any provision of these Terms by the Vendor shall be considered as a waiver of any subsequent breach of the same or any other provision. 12.6 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected. 12.7 These Terms may be signed in one or more counterparts, which together will form a single agreement. These Terms may be signed electronically.