These standard terms and conditions apply to every contract for the purchase of goods and/or of services and/or hire of equipment and /or hire of accommodation units by Southern Engineering Company Limited (Hereinafter ‘the Company’) to the exclusion of any other terms and conditions unless specifically agreed otherwise in writing by Southern Engineering Company Limited. Accordingly all offers and quotations made and services rendered shall be subject to these General Terms and Conditions.
Where such Term or Condition may be at variance with any mandatory provision of law, that mandatory provision of law shall prevail to the extent only of such variance.
- DEFINITION
1.1. Contract documents means the Purchase Order and acceptance by the supplier includes any adjustments in accordance with these General terms and conditions.
1.2. Governmental Authority means the Government of the Republic of Kenya, Parliament or any legislative organ (either national or of any part of the Republic of Kenya) any court, tribunal, any ministry (department or division thereof), parastatals, any authority or division thereof (including any regional and local authorities of Kenya) and any agency or entity or other body owned or controlled by the Government of the Republic of Kenya and having statutory competence to regulate or promulgate rules and regulations governing or touching and concerning matters, transactions and issues contained or relating to this Contract;
1.3. “Information” includes any and all information that the parties may disclose to each other, whether orally, in writing, digitally, in the form of machine-readable code, or embodied in hardware or any other physical medium, which relates to the business of either party and including but not limited to all records, files, analysis, documents, software, computer or electronic data disks or tapes, test data, printouts, processes, technical drawings, designs, and concepts; software programs, routines, formulae research, inventions, patents, discoveries, and concepts; production plans, designs, layouts, and schedules; promotional and marketing analyses, activities, and plans; clients and client data; vendors and strategic partners; finances and other business matters; and all other technical, financial, or business data and all Intellectual Property Rights therein reasonably related to the Parties’ businesses or products and services of the Parties that have not been publicly released.
1.4. "Proprietary Information" is defined as Information which is in the possession of the disclosing party and not generally known to the public, which the disclosing party desires to protect against unrestricted disclosure or competitive use and which (i) the disclosing party identifies as "proprietary" or "confidential" either in writing at the time of disclosure or in the case of information communicated orally, at the time of disclosure, or (ii) by the nature of the information or of the circumstances surrounding its disclosure reasonably should be considered proprietary or confidential.
1.5. "Intellectual Property Rights" are defined as any and all now known or hereafter known tangible and intangible rights associated with works of authorship, including but not limited to copyrights, moral rights, and mask-works; trademark and trade name rights and similar rights; trade secret rights; patents; designs, algorithms, frameworks, and other industrial property rights; all other intellectual and industrial property rights (of every kind and nature and however designated) (including logos and rights to remuneration), whether arising by operation of law, contract, license, or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in farce (including any rights in any of the foregoing).
1.6. “Delivery Date” means the date of delivery for Goods or performance of Services as specified in a Purchase Order
1.7. “Delivery location” means the location identified by Supplier in the Purchase Order to which the Supplier is to deliver Goods and/or perform the services, or such other delivery area or point which is specified in writing by Supplier.
1.8. “Goods” means the goods that are required to be delivered by Supplier pursuant to a Purchase Order, and include all materials, component parts, packaging and labelling of such goods.
1.9. The Supplier means any person, body corporate or entity who supplies goods to the Company in each case a "Party" and collectively the "Parties".
- SCOPE
2.1. These general terms and conditions shall also apply even if their application has not been expressly and explicitly agreed upon.
2.2. The Supplier acknowledges that the Company hereby rejects general business terms and conditions of the Supplier as well as any and all other terms and conditions of the Supplier that may be included in order confirmations or other business papers. In particular the delivery or acceptance of goods or services or the payment thereof shall not constitute an approval of terms and conditions other than these general terms and conditions but shall be deemed conclusive evidence of acknowledgement of these general terms and conditions by Supplier.
2.3. Any agreement on terms and conditions in variation of these general terms and conditions shall be valid only if expressly confirmed by the Company in writing.
- CONTRACT DOCUMENTS
3.1. The Purchase Order constitutes an offer by the Company to purchase the Goods subject to and in accordance with the terms and conditions of the Agreement.
3.2. The offer comprised in the Purchase Order shall be deemed to be accepted by the Supplier on receipt by the Company of a copy of the Purchase Order countersigned by the Supplier within [7] days of the date of the Purchase Order, failure of which the Company is entitled to cancel the Order without incurring any liability to Supplier of whatsoever nature. Only those Orders (including, without limitation, as well as modifications and supplements thereto) duly executed, issued in writing on Company’s order forms are binding. Oral agreements of any kind must be confirmed by Company in writing to become effective.
3.3. The Company shall not be bound by any variations or additions made by the Supplier in the order confirmation.
3.4. The Company may at any time make changes in writing relating to the Order, including changes in the drawings, method of shipment, quantities, packing or time or place of delivery. If such changes result in an increase in cost of, or time required for, performance of the contract the Supplier may raise a claim for an equitable adjustment to the price, delivery schedule or both within a period of 10 days upon receipt of Company’s change request. Any such claim or adjustment must be approved by the Company in writing
- SUPPLY OF GOODS
4.1. In consideration of the Company’s agreement to pay the price, the Supplier shall supply the Goods to the
Company subject to and in accordance with the terms and conditions of the Agreement.
4.2. In supplying the Goods, the Supplier shall co-operate with the Company in all matters relating to the supply of Goods and comply with all the Company’s instructions.
4.3. The Supplier shall supply the Goods in accordance with the Specification. The Supplier warrants, represents, undertakes and guarantees that the Goods supplied under the Contract Document shall:
4.3.1. be new (unless expressly agreed otherwise);
4.3.2. be free from defects (manifest or latent), in materials and workmanship and remain so for 12 months after Delivery;
4.3.3. Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and comply with any applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;
4.3.4. conform with the specifications (including the Specification), drawings, descriptions given in quotations, estimates, brochures, sales, marketing and technical literature or material (in whatever format made available by the Supplier) supplied by, or on behalf of, the Supplier;
4.3.5. Be free from design defects;
4.3.6. Be fit for any purpose held out by the Supplier or made known to the Supplier by the Company expressly or by implication, and in this respect the Company relies on the Supplier’s skill and judgment. The Supplier acknowledges and agrees that the approval by the Company of any designs provided by the Supplier shall not relieve the Supplier of any of its obligations under this sub-clause;
4.3.7. And the Supplier itself shall, comply with all applicable laws.
4.4. Supplier warrants to Supplier that at all times all Goods and or Services will not be in violation of or infringe any Intellectual Property Rights of any person.
4.5. Supplier shall assign to Supplier all manufacturer’s warranties for Goods not manufactured by or for Supplier, and shall take all necessary steps as required by such third party manufacturers to effect assignment of such warranties to Supplier.
- PRICE AND PAYMENT TERMS
5.1. The prices set forth in the Purchase Order shall be invariable fixed prices until complete performance of the Purchase Order has been made and will not be subject to any price escalation or price change whatsoever.
5.2. Invoices for goods and services shall refer to the order number of the Purchase Order.
5.3. Unless stipulated in the Purchase Order, the terms for payment shall commence
5.3.1. No later than 30 days after verifying that the invoice is valid and undisputed and includes a valid
Purchase Order Number.
5.3.2. Once the delivery or service has been completed in a contractually-acceptable condition whatever is later
5.4. Any invoice that does not comply with these instructions shall be returned to the Supplier with the risk of extension of the payment due date. Any invoices shall be drawn up in English
5.5. If a payment of an undisputed amount is not made by the Company by the due date, then the Supplier is not entitled to charge interest on the unpaid amount.
5.6. Complaints regarding goods or services entitle the Company to withhold any payments due in full
5.7. Unless otherwise agreed in writing, the agreed price shall include all necessary supplies and services needed to achieve the agreed target, even if these supplies and services were not provided for in Company’s inquiry, technical documents, the Order or in other documents.
- DELIVERY
6.1. Time is of the essence for the supply of goods or services rendered under these General Terms and Conditions. If the time for delivery is exceeded, the Company shall be entitled to cancel or terminate the Contract with a 48 hour written notice to the supplier and the Company shall be entitled to compensation as provide in clause 8
6.2. The Supplier shall deliver the Goods in accordance with any delivery timescales, delivery dates and delivery instructions (to include, without limitation, as to delivery location and delivery times) set out in the Purchase Order or as otherwise agreed with the Company in writing. If no such date is specified or agreed then the Supplier shall deliver the Goods during Normal Working Hours within 28 days of the date of the Purchase Order.
6.3. Delivery shall be completed when the Goods have been unloaded at the location specified by the Company and such delivery has been received by a duly authorized agent, employee or location representative of the Company.
6.4. The Supplier shall ensure that a delivery note shall accompany each delivery of the Goods. Such delivery note shall, as a minimum, contain the Company’s Purchase Order number, the name and address of the Company, the name and address of the Supplier, a description and quantity of the Goods, and shall show separately any extra agreed charges for containers and/or any other item not included in the Purchase Order or, where no charge is made, whether the containers and or any item are required to be returned.
6.5. Unless otherwise agreed with the Company in writing, the Supplier shall be responsible for carriage, insurance, transport, all relevant licenses, all related costs, and all other costs associated with the delivery of the Goods to the delivery location and unloading of the Goods at that location.
6.6. Without limitation to the foregoing provision of this Clause 6.5, unless otherwise agreed with the Company in writing, the Supplier shall be responsible for obtaining all export and import licences for the Goods and shall be responsible for any delays to the delivery time due to such licenses not being available when required.
6.7. All third party carriers engaged to deliver the Goods shall at no time be an agent of the Company and accordingly the Supplier shall be liable to the Company for the acts and omissions of all third party carriers engaged to deliver the Goods to the Company.
- INSPECTION; ACCEPTANCE AND REJECTION.
7.1. All shipments of Goods and performance of Services shall be subject to Company’s right of inspection.
Company shall have ninety (90) days (the “Inspection Period“) following the delivery of the Goods at the
Delivery Point or performance of the Services to undertake such inspection, and upon such inspection
Company shall either accept the Goods or Services (“Acceptance“) or reject them.
7.2. Company shall have the right to reject any Goods that are delivered in excess of the quantity ordered or are damaged or defective.
7.3. Company shall have the right to reject any Goods or Services that are not in conformance with the specifications or any term of this Agreement.
7.4. Transfer of title to Supplier of Goods shall not constitute Company’s Acceptance of those Goods.
7.5. Company shall provide Supplier within the Inspection Period, notice of any Goods or Services that are rejected, together with the reasons for such rejection. If Company does not provide Supplier with any notice of rejection within the Inspection Period, then Company will be deemed to have provided Acceptance of such Goods or Services.
7.6. Company’s inspection, testing, or Acceptance or use of the Goods or Services hereunder shall not limit or otherwise affect Supplier’s warranty obligations hereunder with respect to the Goods or Services, and such warranties shall survive inspection, test, Acceptance and use of the Goods or Services.
7.7. Company shall be entitled to return rejected Goods to Supplier at Supplier’s expense and risk of loss for, at Supplier’s option, either
7.7.1. Full credit or refund of all amounts paid by Company to Supplier for the rejected Goods; or
7.7.2. Replacement Goods to be received within the time period specified by Company.
7.8. Title to rejected Goods that are returned to Supplier shall transfer to Supplier upon such delivery and such
Goods shall not be replaced by Supplier except upon written instructions from Company.
7.9. Supplier shall not deliver Goods that were previously rejected on grounds of non-compliance with this Agreement, unless delivery of such Goods is approved in advance by Supplier, and is accompanied by a written disclosure of Supplier’s prior rejection(s).
- DEFAULT REMEDIES
8.1. If
8.1.1. The Supplier shall default in delivering the goods as stipulated in the Purchase Order, or
8.1.2. The Supplier shall default in the performance of any other covenant herein and such default shall continue for five days after written notice hereof to Supplier by Company, or
8.1.3. The Supplier becomes insolvent or makes an assignment for the benefit of creditors, or
8.1.4. The Supplier applies for or consents to the appointment of a receiver, trustee, or liquidator of Supplier or of all or a substantial part of the assets of Supplier under the Bankruptcy Act, or any amendment thereto (including, without limitation, a petition for reorganization, arrangement, or extension) or under any other insolvency law or law providing for the relief of debtors, then, if and to the extent permitted by applicable law.
8.2. Then the Company shall have the right to under any other insolvency law or law providing for the relief of debtors, then, if and to the extent permitted by applicable law. Company shall have the right to exercise any one or more of the following remedies.
8.2.1. The right to full credit or refund of all amounts paid by Company to Supplier for the rejected Goods; or
8.2.2. Replacement Goods to be received within the time period specified by Company.
8.2.3. To terminate this agreement as to any or all items of equipment after giving 28 day notice.
8.2.4. To pursue any other remedy at law or in equality.
8.2.5. If the Company suffers any loss or incurs any cost for suspending and or resuming work after suspension as a result of the Supplier’s failure to deliver the goods as per the terms of this agreement the Company shall be entitled to recover such costs from the Supplier.
8.3. Notwithstanding any action which Company may take, Supplier shall be and remain liable for the full performance of all obligations on the part of Supplier to be performed under this agreement
8.4. All such remedies are cumulative, and may be exercised concurrently or separately and the exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy.
- TITLE TO GOODS
9.1. Passing of risk and ownership Title to and risk in the Goods shall pass to the Company when the Goods are delivered to the Company.
- COMPLIANCE
10.1. The Supplier shall give all notices, pay all taxes, duties and fees, consent, license, permit or authorization granted or to be granted by a Governmental Authority which is necessary for the validity or the exercise of rights or performance of obligations by a Party under this Agreement and the Supplier shall indemnify and hold the Company harmless against and from the consequences of any failure to do so.
10.2. Further, the Supplier shall indemnify and or reimburse the Company any fees costs or penalties levied against it by any statutory authority or other body in relation to performance of the works.
10.3. The Supplier shall, if requested by the Company, assist the Company in applying for permits, licenses and or approvals which may be required for the Works.
10.4. Each Party shall abide by the compliance Laws applicable to it and shall adhere to its respective compliance program. Each Party represents and warrants that no portion of its compensation, reimbursement or any other benefit is, has been or shall be, directly or indirectly, granted, paid, offered, promised or guaranteed to any government official or to any other person while knowing that all or some portion of the money or benefit will be offered, given, promised or guaranteed to a government official for purposes of;-
10.4.1. Influencing any act or decision of a government official in his or her official capacity; or
10.4.2. Inducing the government official to do or omit to do any act in violation of the government official’s lawful duties; or
10.4.3. Inducing a government official to use his, her or its influence with the government to affect or influence any act or decision of the government;
10.5. Each Party hereby represents and warrants that it and all of its directors, officers, and employees who may perform this Agreement are familiar with and have been properly trained in how to comply with the compliance Laws applicable to it and agrees to take appropriate steps to ensure compliance therewith by any and all of such persons in connection with all actions taken by any of them in connection with this Agreement.
- CONFIDENTIALITY
11.1. Each Party shall maintain in confidence, in accordance with the standards of care and diligence that it utilizes in maintaining its own Confidential Information, any and all confidential information received by it from the other Party in connection with or in the course of performance of this Agreement and shall not, and shall ensure that its directors, officers, employees and representatives do not disclose to any person any Confidential Information of the other Party, without such Party’s prior written consent.
11.2. Confidential Information includes but is not limited to proprietary information provided by the parties.
11.3. This clause shall survive expiry or termination of this Agreement. Any unauthorized use or disclosure of such information shall be treated as a material breach of the contract between the parties and the Company shall be entitled to seek legal remedies for such breach including compensation for breach, injunction, specific performance and other equitable relief without further notice to the Supplier.
- INSURANCE
The Supplier shall self-insure or make arrangements to provide sufficient cover (including all duties and taxes) against all insurable risks with any right of the insurer to bring a subrogated claim being excluded. Such insurance shall cover all loss and damage to the Works, Goods, Services and Equipment and also all transit risks whether by road, rail, sea or air and risks to third parties in connection therewith. The Company may at any time demand evidence that such insurance cover exists and failure to produce such evidence within forty-eight (48) hours will constitute a material breach of the Contract;
- LIMITATION OF LIABILITY
13.1. The Supplier shall be liable to the Company for loss of use of the Company’s property, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the Company in connection with the performance of works other than as expressly provided for under these Terms and Conditions.
- INDEMNITY
14.1. Company shall indemnify Supplier against, and hold Supplier harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including attorney’s fees, arising out of the sole negligence of the Company’s actions connected with, or resulting from the performance of the works or services specified in the contract documents. Company shall further indemnify The Supplier, and hold The Supplier harmless from all loss and damage to the equipment during the rental period arising out of the sole negligence of the company.
14.2. The Supplier shall indemnify Company against, and hold Company harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including attorney’s fees, arising out of the sole negligence of the Supplier or any Third Party at the worksite connected with, or resulting from the this agreement including without limitation, the manufacture, selection, delivery, leasing, renting, control, possession, use, operation, maintenance or return of the equipment. The Supplier shall further indemnify Company, and hold Company harmless from all loss and damage to the equipment during the rental period.
14.3. The Supplier shall be responsible for and shall save, indemnify, keep indemnified, defend and hold harmless the Company from and against all claims, losses, consequential losses, damages, costs (including legal costs) expenses and liabilities in respect of:
14.3.1. Loss of, damage to and recovery of property of the Company arising from or related to the performance or non-performance of the Contract.
14.3.2. Personal injury including death, disease or sickness of any person employed by the Supplier arising from or relating to the performance or non-performance of the Contract; and
14.3.3. Personal injury including death, disease or sickness or loss or damage to the property of any third party to the extent that such injury, loss or damage is caused by the negligence or breach of duty (whether statutory or otherwise) of the Supplier arising from or relating to the performance or non-performance of this Contract.
14.3.4. Loss of or anticipated loss of or deferment of or anticipated deferment of use, revenue, production or profit;
14.3.5. Losses associated with business interruption or increased cost of working including send or pay payments to third parties, overheads thrown away or any other wasted expenditure;
14.3.6. Loss of bargain, contract, expectation or opportunity; or
14.3.7. Any indirect or consequential loss of any nature whatsoever;
14.3.8. In each case, howsoever arising, whether pursuant to a contract, by virtue of any trust or fiduciary duty, in tort (including negligence), as a consequence of a breach of any duty (statutory or otherwise) or under any other legal or equitable doctrine or principle whatsoever and whether or not foreseeable as at the Commencement Date.
14.4. If either Party becomes aware of any incident likely to give rise to a claim under the above indemnities, it shall notify the other and both Parties shall co-operate fully in investigating the incident.
14.5. Such mutual indemnification shall be reduced proportionately to the extent that the act or neglect of the indemnified party or its servants or agents may have contributed to the said loss, injury or damage.
- TERMINATION
15.1. Subject to the terms of the contract document, either Party shall be entitled to terminate this Agreement in the event that the other Party (the defaulting party) commits any breach of its obligations under the Agreement and fails to remedy such breach within twenty eight (28) days from receipt of a written notice from the other Party (the innocent party) requiring it to do so.
15.2. The Company may, in its absolute discretion, terminate this Agreement at any time by giving 14 (fourteen) calendar day’s prior written notice to the other party of the date on which such termination shall take effect.
15.3. If either Party terminates the Agreement in accordance with this clause then termination shall not prejudice any rights or obligations to which any of the parties may be entitled or be subject before such termination.
- NON-SOLICITATION BY THE SUPPLIER
The Supplier shall not at for a period of twelve (12) months from the date of completion of its obligations under this contract, solicit, entice, poach or otherwise influence any employee of the Company to leave the Company’s’ employment on the promise of employment by the Supplier. Should the Supplier act in breach of this condition, the Company shall be entitled, in addition to any claim for breach of contract, to a claim for liquidated damages of an amount equal to an aggregate figure being Twelve (12) months’ salary of any employee so employed by the Supplier.
- GOVERNING LAW AND DISPITE RESOLUTION
17.1. The law governing these terms and conditions shall be the laws of Kenya.
17.2. If any dispute or claim shall arise between the parties and the parties are unable to resolve it amicably 30 days after the date of the dispute, it shall be referred to a Kenyan court Competent Jurisdiction within the Republic of Kenya.
- COMPANY’S DISCRETION
The Company may, in its sole discretion, suspend or amend any of the terms and conditions hereinbefore listed. The Company’s decision to so suspend or amend any term or condition does not render void any of the other terms and conditions not suspended or the rights and benefits accruing to the Company out of the Contract.
