NEEMA HARDWARE
DELALERS IN SUPPLY OF BUILDING AND HARDWARE MATERIALS
P.O
BOX, 667788 WANJOHI.
TEL:
0777890878.
0768543452
EMAIL:
neemahardware1@gmail.com
LOCATION:
Kiuku Building, Room 546 and 547, Nakuru.
TERMS AND CONDITIONS OF SALE
1.
Definitions
In these Terms and Conditions,
unless the context requires otherwise, the following expressions shall have the
following meanings:
Ø “Counter Offer” an offer made in response to a previous
offer to the other party during negotiations for a final contract.
Ø “Customer” The party, named as Customer in the
Order Acknowledgement and/or invoice;
Ø “Goods” The goods which are the subject of the Order Acknowledgement
including all instruction leaflets, manuals,
drawings, illustrations and specifications provided by Neema Hardware to the
Customer;
Ø “Neema
Hardware” Neema
Hardware - supplying the Goods.
Ø “Offer”
an expression of willingness to contract on certain terms, made with
the intention that it shall become binding as soon as it is accepted by the
person to whom it is addressed to.
Ø “Order
Acknowledgement” Neema
Hardware’s official written order acknowledgement of Customers order or Neema
Hardware’s invoice whichever of these documents is issued to Customer by Neema
Hardware first;
Ø “Order
Confirmation” confirmation
that the Order has been received and/or booked.
Ø "Sale” Transfer of the property in the
goods to a buyer for a money consideration
Ø “The
Agreement” The
agreements, warranties, conditions, representations and other terms set out in
these Conditions and in the Order Acknowledgement;
Ø “These
Conditions”
These Standard Conditions of Sale;
2.
Application
and variation of this terms and conditions
a) This
terms and conditions together with any agreement on Order Acknowledgement shall
be deemed to apply in all agreements for the sale of any goods or provision of
any services by Neema Hardware to a customer.
b) This
terms and conditions shall apply in the place of, prevail over and take
precedence over any terms and conditions contained or referred to elsewhere or
implied by trade custom, practice or course of business dealings.
c) No
variation of this terms and conditions shall be inferred, or where inferred and
acted upon, shall operate against Neema Hardware, unless the variation was
expressly agreed upon by Neema Hardware.
3.
Formation
of a contract and cancellation
a) Neema
Hardware’s advertisements, display of goods for sale, price lists, catalogues
and quotations do not constitute offers made by Neema Hardware unless they are
expressed to be fixed quotations remaining open for a specified period of time,
and Neema Hardware reserve the right to withdraw or revise the same at any time
prior to the Order Acknowledgement.
b) Without
any prejudice to section 2 (a) above, any offers made by Neema Hardware shall
only be held against Neema Hardware with regards to performance if the same is
accepted by the person to whom the offer was made, or by his agents.
c) Unless
otherwise agreed upon as between Neema Hardware and the party concerned, any
conditional acceptance of an offer by Neema Hardware shall not operate as an
offer but as a counter offer, and
Neema Hardware shall not be liable to perform the contract unless it has
expressly accepted the counter offer by Order cknowledgement.
d) Without
any prejudice to section 2 (c), an agreement will be deemed to exist as between
Neema Hardware and the party in question if either Neema Hardware or that other
party has expressed willingness, either orally, in writing or by conduct to
contract and, Neema hardware has made delivery of the goods subject of the
agreement to that other party and the party has accepted the delivery, or that other party has by way of payment
acknowledged existence of the agreement and the payment has been accepted by
Neema Hardware.
e) Nothing
in section 2 (d) shall be construed against Neema Hardware unless it is clear
that under the circumstances Neema Hardware intended to enter into an agreement
of sale.
f) Customer
shall not cancel an order made to Neema Hardware unless with the previous
written consent of Neema Hardware. Such consent may be made conditional on
payment by the Customer of an appropriate charge. No other obligation or
agreement relating to sale of goods or services is binding on Neema Hardware
unless set out in the Agreement or in an amendment or an addition thereto duly
agreed to in writing by Neema Hardware.
4.
Documentation
and specification
a) All
drawings, designs, specifications and particulars of weights and dimensions
submitted by Neema Hardware remain the property of Neema Hardware and are
intended merely to describe the Goods generally. They are not to be regarded as
a warranty, representation or contractual term unless it is expressly so stated
in the Order Acknowledgement.
b) In
an agreement for sale by sample, a Customer shall have the right to a
reasonable opportunity to compare the bulk with the sample and shall be
entitled to reject the goods if there is a reasonable ground to show that the
bulk does not correspond with the sample. Reasonable opportunity shall in each
situation depend upon the current circumstances, giving due regard to the terms
agreed upon in the Agreement between Neema Hardware and the customer.
c) Customer
shall ensure timely supply of information and free issue material as
appropriate to enable Neema Hardware to meet delivery dates.
d) Neema
Hardware has a policy of continuous improvement on its products, and reserves
the right to alter the specification of standards accordingly.
5.
Delivery
a) Delivery
of goods sold to a customer is at the time, place and in the manner agreed upon
in the Agreement.
b) Where
the Agreement and the Order Acknowledgement does not, in precise and clear
terms, indicate the terms of delivery of goods sold by Neema Hardware, all
sales are Ex Strata depot, and unless otherwise expressly or impliedly
indicated, delivery of goods to Customer shall be within 30 days from the date
of the Order Acknowledgement.
c) Notwithstanding
and without any prejudice to section 7 (b), the Delivery Period does not begin to run before Neema Hardware accepts an Order
and issues an Order Acknowledgement. The Delivery Period begins to run when
Neema Hardware receives all information necessary for execution of the Order
and/or Receives an Order’s installment payment and/or the Goods are
specifically appropriated to the Agreement, whichever happens last.
d) In
case the Customer must approve a Delivery
Schedule, a delivery period does
not begin to run until Neema Hardware receives approval of the Delivery
Schedule from the Customer.
e) If
the Customer is unable to take physical custody of the Goods on the agreed upon
delivery date, Neema Hardware will have the right to store the Goods at the
Customer’s expense, without modifying the terms of payment agreed upon in the
Agreement. Storage expenses will be calculated to include any compensation for
late payments and for safeguarding the goods.
f) Neema
Hardware shall reserve the right to be excused from the obligation to deliver
goods in time, if prompt delivery becomes impracticable because of an
unforeseeable and unavoidable obstacle; including but not limited to, labor
strikes, riots, tool malfunctions, fires, natural disasters, acts of God, war,
earthquakes, floods, accident and other events of a similar nature such as bad
weather, supply difficulties, unforeseeable market trends, and so on. It is
expressly agreed that no force mjeure event beyond either party’s control may
relieve the Customer from its primary obligation to make timely payments to
Neema Hardware in accordance with the Agreement.
g) Customer
shall inspect the goods on receipt. Neema Hardware shall be under no liability
in respect of damage to goods or incomplete delivery (or in the case of missing
or undelivered goods) unless customer’s written claim is received by Neema
Hardware within 2 days of receipt of the goods, including evidence of shortage
or defect as Neema Hardware may request.
h) Any
period or date of delivery stated in the Agreement is intended as an estimate
only and is not a contractual commitment.
i)
Neema Hardware may deliver the Goods in
one or more installments. Where delivery is effected by installment each installment
shall be treated as a separate contract. Failure by Neema Hardware to make any
delivery or part delivery in accordance with the Agreement or any claim by
Customer in respect of such delivery or part delivery shall not entitle
Customer to reject the balance of the Goods agreed to be purchased by Customer.
At Customer’s request, Neema Hardware may consent to postponement of delivery
beyond the delivery date, subject to Customer assuming the risk in the Goods
and paying storage charges; Neema Hardware reserves the right on the original
delivery date/milestone to invoice the order value.
j)
At the request of Customer, Neema
Hardware shall as agents for Customer arrange for carriage to the destination specified
in Customer’s order on such terms as to carriage as Neema Hardware considers
appropriate, unless Customer specified otherwise, and Neema Hardware shall
invoice Customer all carriage costs incurred. Section 32(2) of the Sale of
Goods Act Cap 31 shall not apply to the Agreement. Customer shall meet the cost
of any special packaging requested by Customer or any packaging rendered
necessary by delivery by any means other than Neema Hardware’s normal means of
delivery.
k) In
the absence of instructions as to the place of delivery, or in case of
impossibility of dispatching or transporting the goods for reasons independent of
the will of Neema Hardware and beyond the control of Neema Hardware, delivery
will be deemed to occur upon notice of the Goods availability, the Goods
thereupon being at the Customer’s disposal in Neema Hardware’s place of
business and Neema Hardware reserving the possibility of invoicing storage
expenses. Neema Hardware, having met its part of the delivery obligation, will
then issue the corresponding invoice and the payment period will be 30 days
beginning from the date of the issue of invoice to Customer.
l)
Unless otherwise requested by the
Customer, Neema Hardware will select the means of transport considered most
convenient and economically sound for dispatching the Goods on behalf of and as
per the instructions of the Customer, without any kind of responsibility being
incurred by Neema Hardware as a result thereof.
m) In
no circumstances shall a delay of delivery be deemed to justify the termination
or cancellation of an Order.
6.
Price
and price variation
a) The
Prices for the Goods and Services shall be as set out in the Order
Acknowledgement and shall remain valid for 30 days from date of Order
Confirmation. All Customs and Excise duties, import or export duties and all
other taxes, tariffs and surcharges of any nature whatsoever now or hereafter
levied or imposed in any country or territory either directly or indirectly in
respect of the sale, supply, delivery or use of the Goods or payments for them
or upon freight or other charges shall be borne by Customer and except as
stated in the Order Acknowledgement are additional to the prices therein
stated.
b) If
between issue of Order Acknowledgement and date of delivery the price payable
by Neema Hardware for significant material items included in the goods, shall
have increased, Neema Hardware may increase the prices of such Goods and shall
in writing so notify the Customer, who shall accept the Goods at the new price.
c) Prices
are always stated as net amounts. All costs of packing, handling, shipping,
(whether surface, maritime orair), placing on board, insuring, etc., will be
invoiced in addition. The Customer will pay for all rights, taxes and other
official charges, as well as the duties and expenses for customs formalities
for import of Goods and, if necessary, transit abroad. The Customer will
advance to the Neema Hardware whatever part of said costs,charges or expenses
the latter may be required to pay, so that the amount paid to and retained by
the Neema Hardware is the price net of taxes. The taxes due at the time of
invoicing are invoiced and payable in full at the time ofdelivery. To take
advantage of provisions suspending the payment of taxes, the Customer may have
to provide the Neema Hardware with the exoneration documents officially
required at the time it places its Order. Late submission of said documents
shall not be used by the Customer to withhold payment of invoices in accordance
with the Contract, including taxes, whether in whole or in part. Refund of
exonerated taxes and accounting revisions will occur only after receipt of such
documents.
d) The
Customer is responsible for paying any increase in the cost of rights, taxes,
levies and stamps occurring after placement of the Order, even if said change
purports to discharge in whole or in part the Buyer of any more generally and
notwithstanding anything to the contrary, the Order Price and/or the schedule
of delivery included in the Order shall be adjusted as a result of an increase
or decrease in costs or / and of extension or reduction of the time schedule
due to the execution of any new law or regulation or of any change in existing laws
and regulations which occur after the bid due date or change in the
interpretation of any applicable law or regulation of any governmental or other
authority having jurisdiction more generally and notwithstanding anything to
the contrary, the Order Price and/or the schedule of delivery included in the
Order may be adjusted as a result of an increase or decrease in costs or / and
of extension or reduction of the time schedule due to the execution of any new
law or regulation or of any change in existing laws and regulations which occur
after the payment due date or change in the interpretation of any applicable
law or regulation of any governmental or other authority having jurisdiction.
e)
Prices are subject to adjustment by the Neema Hardware
so as to take into account unforeseeable variations, for instance in the costs
of materials, energy and labor occurring between the date of the last Order and
the invoice date. The Customer will be deemed to recognize and acknowledges
this fact, and that such price adjustments are valid without a prior agreement.
Nevertheless and in so far as possible, the Neema Hardware will, within a
reasonable time, inform the Customer of its intent to make such adjustments
before they become effective, giving the Customer all reasonable information in
its possession concerning the need for, and methods used, in computing them.
f)
Nevertheless, in the event of supervening events,
unforeseeable or unforeseen by the Parties on the day of the last Order, which
upset the economic bases of the Contract to Neema Hardware’s prejudice, the most diligent
Party will without delay make a formal request for revision of Order(s)
affected by said events and of such a nature that the Parties will in good
faith agree as soon as possible to adjust the price or the schedule of delivery
or, if necessary, the elements in the formula for indexing the price, in order
to put the Parties in a position of equilibrium similar to that existing when
they entered into their Agreement. If the Parties are unable to reach a friendly
agreement within thirty (30) calendar days following a request to adapt the
price or economic terms of the Contract, each Party will have the right to
terminate the Contract, by a written notice, registered letter or by email giving
seven (7) days notice of said termination, without compensation to either Party
other than sums due to the Neema Hardware for the part of the Agreement
performed so far. Any payment already received by Neema Hardware before any
such terminated Order, such as an installment, remains the Neema Hardware’s
property and may under no circumstance be restituted to the Customer or viewed
as compensation by the Customer.
7.
Payment
a) The
time and mode of payment shall be as agreed upon in the Agreement.
b)
Notwithstanding and without any prejudice to section 9
(a), invoices are payable net, no later than thirty (30) days of the invoice
issuance date. When a different term is agreed upon, the basis for calculation
is always the invoice date. All due dates to be understood as the date at which
the Neema Hardware’s account has been duly credited in value with the whole of
the invoice amount. The discount rate for prepayment will be as agreed upon in
the Agreement but shall in no case exceed 0.08 % per month.
c)
The Neema Hardware reserves the possibility of
assigning its receivables to a collection or factoring agency.
d)
Within the framework of financing its activity, Neema
Hardware reserves the option of assigning commercial receivables to an ad hoc
institution (e.g. bank, financial institution…) without any modification of
current dealings or any change concerning the management or the achievement of
the Customer’s Orders. The settling of aforementioned receivables is made
whether through Neema Hardware or directly through the ad hoc institution to the
extent the Customer will be regularly notified by Neema Hardware or the ad hoc
institution.
e)
Neema Hardware reserves the right to demand payment by
check upon delivery of the Products if the Customer’s account is in arrears or
if the Customer presents a risk of insolvency.
f)
Non-payment of a fraction of the price when due, or
non-observance of any payment’s due date, shall trigger the Neema Hardware’s
right to demand immediate payment of all sums then still due, (bills of
exchange included),and to retain installments held by Neema Hardware as well as tools and other items in the Neema
Hardware’s custody received in the course of business dealings, until full
payment of all sums due.
g)
As compensation for the prejudice suffered as a result
of said late payment(s), the Customer will pay Neema Hardware without delay a
sum equal to the annual rate of interest of 15% applied to the entire
outstanding unpaid balance, such sum to be due upon the day following the
invoice date of the late payment in question, without necessity of a reminder.
In addition to this sum, the Customer will reimburse Neema hardware of the
corresponding collective expenses.
h)
Notwithstanding resort to the sanction provided for in
section 9 (g) above, non-payment of an invoice when due, whether partial or in
full and for whatever reason, entitles Neema Hardware to cease delivering Goods,
without notice or other formality. Such a decision, a matter of entitlement
attributable to the Customer, entails the right retroactively to cancel
existing contracts, without affecting the Neema Hardware’s right to
compensation, or possible damages together with interest.
8. Reservation of title
a)
The transfer of title to delivered Goods shall occur
only after Neema Hardware receives full payment of the price and auxiliary
charges. This reservation of title does not prevent transfer to the Customer,
upon the Goods’ delivery, of all risks of loss and deterioration, as well as of
damage they might occasion.
b)
If the Customer fails to make a payment when due, Neema
Hardware may reclaim specific Goods, or all Goods of the same kind and quality
held by the Customer. In case Neema Hardware repossesses said Goods, the
Customer will be credited with their price after deducting, on one hand, the
costs of repossession and, on the other, their possible loss of value between
the Agreement and repossession dates.
c)
Before acquiring title to the Goods, the Buyer may
neither grant any security interest therein to a third party, nor transform or
resell them, without the Neema Hardware’s prior written consent. The Buyer will
hold the goods as a bailee for Neema Hardware and if the said Goods are
transformed to a different form, the Buyer will be deemed to hold the resulting
product as bailee for Neema Hardware unless and until full payment of the
original Goods is made.
d)
The Buyer shall assist Neema Hardware in any action the
latter may be required to take in order to protect its rights of ownership. The
Buyer commits itself to ensuring the Products as of their delivery, with Neema
Hardware as beneficiary, against all risks that they might encounter or cause.
The Buyer commits itself, under all circumstances, to maintaining delivered Goods
in such a manner as to avoid any confusion about their ownership by the Neema
Hardware.
9. Guarantee and civil liability
a)
Neema Hardware’s responsibility is limited to
delivering Goods in conformity with the plans and technical manual agreed to by
the Parties and transferring ownership of goods to Buyer upon full payment of
the purchase price.
b)
Neema Hardware’s responsibility shall in no case extend
either to design or definition of components of the Goods, as the Buyer shall,
in any event, bear the entire responsibility for the industrial result of the
Goods, including responsibility for errors or omissions in technical
specifications, criteria or standards. Unless expressly agreed otherwise in
writing, all responsibility for choice of Products is incumbent upon the Buyer.
c)
Goods are sold “as is,” and Neema Hardware shall not be bound by any
warranties of quality, whether express or implied, including the warranties of
merchantability and fitness for particular purpose. Neema
Hardware will afford the Buyer an opportunity for full and complete
investigations, examinations, and inspections of Goods. The Buyer will be
expected to rely solely on the investigations, examinations, and inspections as
the Buyer shall have chosen to make. In any Agreement for the sale of Goods,
the buyer will not rely on the allegations that he was induced by any
statements or representations of any person with respect to the quality or
condition of the Goods, or that any such statements or representations were
made by Neema Hardware, its employees or agents.
d)
In the event a Good is found defective, the Vendor
shall be responsible only for repair or replacement of that specific Good, pure
and simple, by implementing logistical means as to which it shall be the sole
judge, without any other form of recourse or compensation against Neema
Hardware. Excluded from all guarantees are defects or damages resulting from
storage or use of Products by the Buyer or its customers under conditions
either anomalous or not in conformity with accepted norms. Any repair of a
Product, including one found defective, done without Neema Hardware’s prior
consent, shall result in loss of all guarantees, as well as of any right of
recourse against Neema Hardware. The guarantees defined above cover only repair
or replacement of delivered Products found defective by Neema Hardware after
return of said Goods by the Buyer, and all charges for transport, packing,
assembly, disassembly or other ancillary costs remain the Buyer’s burden. Neema
Hardware will not accept return of any Product without its prior written
authorization.
e) Neema Hardware will not be
liable for any indirect, special, consequential, or punitive damages (including
lost profits) arising out of or relating the Agreement or the transactions
contemplated by this Terms and Conditions (whether for breach of contract,
tort, negligence, or other form of action) and irrespective of whether Neema
Hardware has been advised of the possibility of any such damage. In no event
will Neema Hardware’s liability exceed the price the Buyer paid to Neema
Hardware for the specific Goods provided by the later giving rise to the claim
or cause of action.
10. Force majeure
a)
Neither party shall be liable for breach of the
Agreement other than payment if and to the extent that fulfilment of a term or
condition hereof has been prevented, hindered or delayed by force majeure as defined in this
Condition and in such event the time for fulfilment of such a term shall be
extended for such period as is reasonable in all the circumstances. The
non-performing party must make every reasonable attempt to minimize delay of
performance. In the event force majeure continues
longer than 90 days, each party may terminate the agreement.
b)
The expression “force
majeure” shall mean any event of circumstances beyond the immediate control
of either party, including without prejudice to the generality of the
foregoing, strikes, lock-outs, trade disputes, accident to plant or machinery, shortage
of any material, failure in whole or in part of any power or Apollo supply,
delays in or cancellations of deliveries or provision of services by third
parties, riots, civil commotion, war national or international, emergency,
destruction or damage due to natural forces, fire, flood, explosion, and
compliance with others or requests of any national or local authority.
11. Assignment
a) Customer
shall not assign or otherwise transfer all or any of its rights, interests or
obligations under the Agreement without the prior written consent of Neema
Hardware. Any or all of Neema Hardware’s rights or obligations under this
Agreement or other contract may be assigned by Neema hardware and Customer
shall not assert against an assignee any defence (other than actual payment),
set-off or counterclaim which the Customer may have against Neema Hardware.
12. Cancellation – termination
a)
A simple delay in delivery, nonobservance of a
procedure, or any cause beyond Neema Hardware’s reasonable control, such as one
attributable to a third party, which makes it impossible for Neema Hardware to
fulfill its contractual obligations, shall be deemed to justify neither a
request for any sort of compensation, nor the cancellation or termination of
all or part of an Order by the Buyer.
b)
Neema Hardware shall have the right to terminate the
Contract if the Buyer is in bankruptcy or liquidation proceedings, or in the
event a significant change occurs in the Buyer’s legal circumstances
undermining its solvency. However, termination of a Contract shall not reduce
the Buyer’s debts to Neema Hardware.
c)
If the Buyer, for its own reasons, unilaterally cancels
or terminates all or part of an Order, it shall immediately pay to Neema
Hardware financial compensation in an amount which depends upon the date of
such cancellation or termination relative to the delivery date specified in the
Order said. Compensation is intended to cover damages or losses related to performance
of the contract, the consequent loss of commercial opportunities, and
administrative costs.
13. Interpretation and law
a)
Headings are included in these Conditions for
convenience and identification only, and are not to be taken to limit the
meaning of any part of these Conditions.
b)
If any provision or part of a provision of the
Agreement should be held unenforceable or in conflict with the laws of Kenya,
any part so held unenforceable or invalid shall be severed from the remainder
of the Agreement which shall not be affected by such severance.
c)
The Agreement represents the complete agreement between
Neema Hardware and Customer with regard to the Goods and contains all
agreements, warranties, conditions, representations and other terms agreed,
made or relied upon by either party in connection with the Goods. The rights of
Neema Hardware shall not be prejudiced or restricted by any indulgence or
forbearance extended to Customer and no waiver of any breach shall operate as a
waiver of any subsequent breach.
d)
These Conditions and every contract connected therewith
shall be governed exclusively by the Constitution of Kenya, legislative
Statutes and International Commercial Laws in so far as they have been adopted
and are applicable in Kenya, and any claim or dispute arising there from shall
be submitted to the Kenyan courts.
e)
Any reference in these Conditions to any statute or
statutory provision shall be construed as including a reference to that statute
or statutory provision as from time to time amended, modified, extended or
re-enacted whether before or after the date of the Agreement and to all
statutory instruments, orders and regulations for the time being made pursuant
to it or deriving validity from it.
f)
In case of any arising disputes between Neema Hardware
and any other party in the course of a contract for sale of goods, the dispute
shall be resolved through mediation or arbitration; unless it fails to serve
the needs of the parties. In no instance may a party seek to resolve a dispute
arising in the course of business dealings through a court process if an
Alternative Dispute Resolution mechanism hasn’t been applied first.
contract
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