CONDITIONS OF SALE
1. Definitions
“Buyer” shall mean the person who buys or agrees to buy the goods from the seller
“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 in writing between buyer and seller.
“Delivery Date” means the date specified by the seller or agreed between the seller and the buyer when the goods are to be delivered.
“Goods” mean the goods or articles (including any instalments of the goods and any part thereof) which the buyer agrees to buy from the seller.
“Price” means the price for the goods excluding carriage, packing, insurance, and Value added Tax (VAT).
“Seller” means Twiga Consumer Industries Limited.
2. Entire contract
a) These conditions shall apply to all contracts for the sale of goods by the seller to the buyer to the exclusion of all other terms and conditions including any previous terms and conditions (which are hereby cancelled) which the buyer may support to apply under
any purchase order, confirmation of order of similar document.
b) These conditions are subject to change without notice by the seller.
c) All orders for goods shall be doomed to be an offer by the buyer to purchase the goods pursuant to this conditions.
d) These conditions contain complete and final agreement between the seller and the buyer for the sale of the goods and no other agreement in any way modifying any of these conditions will be binding upon seller unless agreed in writing by the seller.
3. Warranties and Claims
a) The seller warrants that the goods shall be of merchandise quality and shall conform to any specifications agreed with the buyer. All the goods are applied to this subject to this warranty only and any ability arising out of or in respect of the supply, re-supply or reuse whether singly or otherwise of the goods, however arising and whether for consequential loss or otherwise and including any liability the seller may otherwise have had by the virtue of any representation, warranty, condition or term whether express or implied
by statute for any particular purpose or use under any specific conditions not withstanding that such purpose or conditions may be known or made known by the seller.
b) Any liability incurred by the seller to the buyer is limited to the replacement of the goods or (at the option of the seller) refund of the price paid by the buyer and in particular not extend to consequential loss. Any liability of the seller here under is condition upon
the buyer within 30 days of the delivery making a written claim to the seller setting out the full particulars of such claim and where positions returning to the seller sufficient part of the goods to enable a proper examination.
c) Upon expiry of 30 days from the delivery date the buyer shall be deemed to have accepted the goods and shall not be entitled to reject the goods are not in accordance with the contract.
4. Advice
Any advice, recommendation, information or service provided by the seller in relation to the goods or their use or application is given in good faith and is believed by the seller to be appropriate and liable. However, any such advice, recommendations, information,
assistance or service is provided without liability or responsibility on the part of the seller and it is expressly acknowledge by the buyer has not relied on the seller’s skill or judgement in the buying the goods.
5. Delivery
a) The seller will make all reasonable efforts to have the goods delivered to the buyer on the date agreed between the parties as the delivery date but the seller shall be under no liability whatsoever should be the delivery not be made on this date
b) Unless otherwise agreed between the seller and the buyer prior to delivery the seller shall select and use such mode or means of transporting the goods to the buyer as the seller in its sole discretion shall deem most appropriate.
6. Risk
The risk in the goods shall unless otherwise agreed in writing pass to the buyer upon delivery to the buyer or his agent or to a courier commissioned by the buyer
7. Passing of property in the goods
a) In spite of delivery having been made properly in the goods shall not pass from the seller until
I. The buyer shall have paid the price plus VAT in full; and
II. No other sums whatsoever shall be due from the buyer to the seller.
b) Until property in the goods passes to the buyer in accordance to paragraph (a) of this condition the buyer shall hold the goods and each of them on a fiduciary basis for the seller. The buyer shall store the goods (at no cost to the seller) separately from other
goods in its possession and marked in such a way that they are clearly identified as the seller’s property.
c) Notwithstanding that the goods (or any of them) remain the property of the seller the buyer may sell or use the goods in the ordinary course of the buyer’s business at full market value for the account of the seller. Any such sale or dealing shall be a sale or use of
the seller’s property by the buyer’s own behalf of and the buyer shall deal as a principal when making such sales or dealings. Until the property in the goods passes from the seller the entire proceeds of the sale or otherwise of the goods shall be held in trust for the
seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the seller’s money
d) The seller shall be entitled to recover the price plus VAT not withstanding that the property in any of the goods has not passed from the sale.
e) Until such time as property in the goods passes from the seller the buyer shall upon request deliver up such of the goods as have not ceased to be in existence or restored to the seller, if the buyer fails to do so the seller may enter upon any promise owned,
occupied or controlled by the buyer where the goods are situated or held and repossess the goods. On the making of such request the rights of the buyer under paragraph (c) of this condition shall cease.
f) The buyer shall not pledge or charge by way of security for any indebtedness the goods which are the property of the seller without prejudice to the other rights of the seller, if the buyer does so all the sums whatever owing to the seller shall forthwith become due
and payable.
g) The buyer shall insure and keep insured the goods to the full price against all risks to the reasonable satisfaction of the seller until the date that property in the goods passes from the seller and shall whenever requested by the seller produce a copy of the policy
of insurance without prejudice to the other rights of the seller if the buyer fails to do so any sums whatsoever owing by the buyer to the seller shall forthwith become due and payable.
8. Price
a) The price shall be the price of the goods ruling on the delivery date unless otherwise agreed in writing. Any price indications or price lists are subject to alteration to the price ruling on the delivery date, VAT where applicable, and the cost of carriage, packing and
b) The buyer may not withhold payment of any invoice or other amount due to the seller by reason of any right of set-off or counterclaim which the buyer may have or allege to have or for any other reason whatsoever.
9. Force Majeure
Deliveries may be totally or partially suspended by the seller during any period in which the seller may be prevented or hindered from delivering the goods due to any circumstances beyond its control including but not limited to strikes, lockout, raw materials,
shortages, accidents or breakdowns of plant or machinery. However, during the period of total or partial suspension of delivery the buyer may purchase elsewhere at its own risk such quantities of alternative goods as may be necessary to cover its requirement
during such period in substitution for the goods not delivered by the seller whether or not the buyer makes these arrangements the seller shall be under no obligation to deliver at any future date goods not delivered during the period of suspension.
10. Payment Default
Unless otherwise agreed in writing the buyer shall make payments of the price within credit period of invoice/delivery of the goods to the buyer, if the payment in full is not made within the said period interest will be charged on the amount outstanding at a rate
equivalent to 2% above the lending base rate for the time being of Barclays Bank of Kenya Limited calculated from the due date until payment in full. In addition, the seller may without prejudice to any of its other rights suspend further deliveries or any of its
pursuant to paragraph (e) of clause 7 of these conditions.
11. Cancellation and Credits
a) Requests for the credits arising from incorrect invoicing must be made before the due date for payment of the invoice in question
b) Unless otherwise agreed in writing orders cannot be cancelled once production of goods has commenced and the buyer shall be liable for the full price not withstanding any purported cancellation of an order
12. Authority to Vary Conditions
No employee, servant, agent or representatives of the seller has any authority to vary these conditions and without limiting the generality of the foregoing, no warranty, representations, promise, agreement, term or condition whether express or implied made by an
employee, servant, agent or representatives of the seller shall be deemed to be include in or form part of these conditions or operate in any way collateral to these conditions other than those warranties, representations, promises, agreement, agreements, terms
and conditions which expressly appear in these conditions.
13. Weight
In the absence of a proven defect in the seller’s system of weighing weight of the goods shall be the last weight determined by the seller’s system of weighing prior to delivery.
14. Buyer’s Warranties
a) That the information contained in any credit application form is true, correct and accurate and is intended to be relied upon by the seller to grant credit facilities applied thereby
b) Seller as to whether or not to grant any credit facilities
15. Insolvency or Other Default of Buyer
If the buyer commits any breach of this contract or if the buyer offers to make any arrangements or composition with creditors or commits an act of bankruptcy or if the buyer is unable to pay debts as they fall due or it being a company any resolution or petition to
wind up the buyer (other than for the purpose of amalgamation or reconstruction) shall be passed or presented or if a receiver shall be appointed over the whole or part of the buyer’s business or assets or if the buyer shall suffer any analogous proceedings under
foreign law all sums outstanding in respect of the goods shall become immediately due and payable the seller may in its absolute discretion and without prejudice to any other rights it has suspended all future deliveries of goods to the buyer or terminate the
contract without liability upon its part or exercise any of its rights pursuant to paragraph (c) of the clause 7 of these conditions.
16. Negotiable Instruments
Any promissory note, bill of exchange or other negotiable instrument received by the seller from the buyer here under shall not be a notation of debt for which it is given and the buyer waives presentment notice of dishonour or protest where applicable.
17. Waiver
Waiver by the seller of any specific defaults by the buyer defaults or failure by the seller to cancel the contract or any part thereof when right of cancellation arises or failure of the seller to exercise any of its rights under the contract shall not constitute waiver by the
seller of any rights under these conditions or otherwise arising through any further or subsequent default by the buyer whether giving rise to a right of cancellation or certain claim for damage.
18. Severance
If any of these terms or conditions is or becomes for any reason wholly or partly invalid that term or condition shall to the extent of the invalidity be served from the contract without prejudice to the continuing force and validity of the remaining conditions.
19. Jurisdiction
Notwithstanding any implication of law to the contrary any contract between the buyer and the seller pursuant to these conditions shall be deemed to be made and construed and to the subject to the jurisdiction of the Republic of Kenya.
