GENERAL TERMS AND CONDITIONS OF SALE
- 1.1 – Unless the context requires otherwise, these terms will have the following meanings;
‘Agreement’ means the relevant agreement with the customer which shall consist of but not be limited to the Purchase Agreement and these general terms and conditions
‘Customer’ means the company, organization or individual which accepts the supply of goods from Premier Hotel Supplies Ltd
‘Delivery location’ means the physical location where delivery of goods is to take place as indicated in the Agreement
‘Goods’ means any product or materials as agreed in terms of the contract to be supplied to the Customer.
“Price” means the price agreed for the goods
- 1.2 – Words in the singular include words in the plural and words in the plural include words in the singular.
- 1.3 – A reference to one gender includes a reference to the other gender.
- 1.4 – Clause headings do not affect the interpretation of those clauses.
2.QUOTATIONS AND ORDERS
- 2.1 – Any quotation given by PREMIER HOTEL SUPPLIES LTD is given on the basis that no agreement shall come into existence till the customer has endorsed, returned it without any changes and executed an agreement. Any quotation is valid for a period of fourteen days only or as noted on the quotation provided that the same was not previously withdrawn
- 2.2 – The Customer shall promptly supply to PREMIER HOTEL SUPPLIES LTD any material and/or information to execute the customer’s order and the Customer acknowledges that failure to provide such information may preclude or delay the supply of goods
- 2.3 – PREMIER HOTEL SUPPLIES LTD reserves the right at it sole and absolute discretion to refuse orders from Customers for the supply of goods including without limitation to countries or individuals where the supply of goods would contravene any laws, sanctions, controls or any trade embargoes imposed on or applicable to PREMIER HOTEL SUPPLIES LTD from time to time.
3. DELIVERY AND DAMAGE
- 3.1 – PREMIER HOTEL SUPPLIES LTD shall endeavour to supply the goods within the time agreed or where no time is agreed, within a reasonable time.
- 3.2 – Any dates specified by PREMIER HOTEL SUPPLIES LTD for the supply of goods are intended to be an estimate and time shall not be made of the essence by notice. In no circumstances shall PREMIER HOTEL SUPPLIES LTD be liable for loss or damage of any kind by any delay in the supply of the goods. PREMIER HOTEL SUPPLIES LTD may make delivery of the goods by instalments and the customer shall accept such instalments. In the event of any shortage of goods PREMIER HOTEL SUPPLIES LTD may allocate available goods among its customers in any manner it deems fit.
- 3.3 – Any liability of PREMIER HOTEL SUPPLIES LTD for non-delivery of goods shall be limited to replacing such goods within a reasonable time or by any other means that the supplier may deem sufficient.
- 3.4 – Any goods which are damages or defective or incorrect when delivered to the Customer must be reported immediately or within at least 48 hours of delivery and PREMIER HOTEL SUPPLIES LTD at its sole and absolute discretion may elect to replace the goods or refund the customer and any Claim for refund or replacement must be made within thirty (30) days of delivery. After the aforementioned thirty (30) days any good delivered will be deemed to be accepted and in conformity with this agreement. Replacement goods will be dispatched and any refunds made within a reasonable time. All goods must be stored and utilized in accordance with instructions and no claim for a refund and/or replacement will be honoured unless these instructions have been followed by the Customer at all times.
4. WARRANTY & INDEMNITY
- 4.1 – PREMIER HOTEL SUPPLIES LTD warrants that all the goods are correctly identified and in good order and have not to the best of its knowledge been tampered with, altered, added or substituted in any way whatsoever prior to delivery. Any statement on the condition of goods supplied any other communication in relation thereto is made in good faith.
- 4.2 – EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE GENERAL TERMS AND CONDITIONS OF SALE ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, RIGHTS, OBLIGATIONS, LIABILITIES AND OTHER TERMS WHETHER EXPRESS OR IMPLIED BY STATUTE OR COMMON LAW IN CONNECTION WITH THE GOODS (INCLUDING WITHOUT LIMITATION ANY RELATING TO PERFORMANCE, CARE AND SKILL OR COMPLIANCE WITH RESPRESENTATIONS, MERHANTABILITYOR FITNESS FOR A PARTICULAR PURPOSE) ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE AGREEMENT AND DISCLAIMED.
- 4.3 – Save to the extent PREMIER HOTEL SUPPLIES LTD is liable for negligence in its provision of the Goods (subject to the other terms of this clause 4), PREMIER HOTEL SUPPLIES LTD shall have no Liability for the use made by the Customer of the Goods for advice supplied by PREMIER HOTEL SUPPLIES LTD to the Customer, and/or for any decisions taken by the Customer or costs incurred by the Customer in consequence of such use.
- 4.4 – Nothing in these standard terms and conditions excludes or limits the liability of PREMIER HOTEL SUPPLIES LTD to the extent prohibited by law.
- 4.5 – Subject to clause 4.4:
- a) PREMIER HOTEL SUPPLIES LTD total aggregate Liability (including for negligence) in all circumstances shall be limited to the value of the affected Goods and the Customer shall have a duty to mitigate any loss suffered by it; and
- b) PREMIER HOTEL SUPPLIES LTD shall have no Liability in any circumstances for loss of profit, loss of business or revenue, loss of anticipated savings, depletion of goodwill, any third party claims, or any indirect or consequential loss or damage, which arise out of or in connection with any Agreement, even if advised of the possibility of such losses or damages.
- 4.6 – The Customer’s sole remedy in respect of any Liability of PREMIER HOTEL SUPPLIES LTD or its Personnel shall be in damages as set forth and limited in these standard terms and conditions.
- 4.7 – Save insofar as PREMIER HOTEL SUPPLIES LTD can be shown to have been negligent in providing the Goods, the Customer shall: (a) fully indemnify PREMIER HOTEL SUPPLIES LTD its Personnel against any loss, damage or injury (including injury resulting in death) to property or person sustained by (i) PREMIER HOTEL SUPPLIES LTD and/or its Personnel, (ii) the Customer and/or its Personnel, and (iii) any third party, where such loss, damage or injury is caused by the negligent act or omission or willful misconduct of the Customer or the Customer’s Personnel; and (b) fully indemnify PREMIER HOTEL SUPPLIES LTD against all damages, costs, expenses of any kind whatsoever (including reasonable legal fee and other professional fees) and losses suffered or incurred by PREMIER HOTEL SUPPLIES LTD as a result of, or in connection with any third party claim brought against PREMIER HOTEL SUPPLIES LTD resulting from death, injury, or any other damage or loss whatsoever occasioned by the use made of the Goods including wit without limitation any report or other information or advice of without limitation any report or other information or advice of PREMIER HOTEL SUPPLIES LTD.
5. RISK AND TITLE
- 5.1 – Risk in the Goods shall pass to the Customer delivery/shipment of the Goods by PREMIER HOTEL SUPPLIES LTD or in accordance with the agreed INCOTERMS. However, title shall remain with PREMIER HOTEL SUPPLIES LTD and shall not pass to the Customer until payment in full (in cash or cleared funds) has been received by PREMIER HOTEL SUPPLIES LTD.
- 5.2 – Until such time as title in the Goods has passed to the Customer: a) PREMIER HOTEL SUPPLIES LTD shall have absolute authority to re-take, sell or otherwise deal with any of the Goods which have not yet been used by the Customer; and b) PREMIER HOTEL SUPPLIES LTD shall be reasonably entitled to require the Customer to either: (i) return the Goods to PREMIER HOTEL SUPPLIES LTD at the Customer’s own cost; or (ii) reimburse PREMIER HOTEL SUPPLIES LTD for the cost of providing the Goods.
- 5.3 – Responsibility and liability in respect of the safe storage and handling, use and subsequent disposal of Goods transfers to the Customer on shipment by PREMIER HOTEL SUPPLIES LTD, and the Customer shall ensure that all Goods are handled appropriately at all times by suitably qualified Personnel.
- 6.1 – PREMIER HOTEL SUPPLIES LTD reserves the right to amend the Price to take account of any variations in the Goods as a result of additional information from or a request in writing by the Customer. PREMIER HOTEL SUPPLIES LTD shall obtain the Customer’s prior written approval before performance of any additional work or variations in the Goods. Unless expressly stated otherwise, all Prices are inclusive of applicable sales, use, excise or other taxes.
- 7.1 – The Price shall become payable upon delivery of the goods or as otherwise set out in the agreement or agreed in writing. Payment shall be made by the Customer not later than thirty (30) days of the date or delivery and/or invoice. There shall be NO DISCOUNT for early payment. PREMIER HOTEL SUPPLIES LTD shall be entitled to payment for all instalments of goods delivered whether under a blanket order or otherwise.
- 7.2 – Payment is made when monies are credited into PREMIER HOTEL SUPPLIES LTD account or when it is made in cash. Negotiable instruments or promises DO NOT constitute payment.
- 7.3 – The Customer shall make all payments without any deductions of any sort including but not limited to set-offs, counterclaims, discounts, abatements or otherwise.
- 7.4 – The Customer shall pay to PREMIER HOTEL SUPPLIES LTD, in addition to other amounts payable hereunder, any costs reasonably incurred by PREMIER HOTEL SUPPLIES LTD (including without limitation, legal costs and fees of debt collection agencies) in recovering any amounts due to PREMIER HOTEL SUPPLIES LTD from the Customer pursuant to the Agreement.
- 7.5 – PREMIER HOTEL SUPPLIES LTD may appropriate sums received from the Customer against any debt due to PREMIER HOTEL SUPPLIES LTD from the Customer (under this or any other Agreement), irrespective of any purported appropriation by the Customer.
- 7.6 – If the Customer fails to pay PREMIER HOTEL SUPPLIES LTD any sum due pursuant to the Agreement then, without limiting any other right or remedy available to PREMIER HOTEL SUPPLIES LTD:
- a)PREMIER HOTEL SUPPLIES LTD may cancel the Agreement and all other agreements with the Customer or suspend any further deliveries to the Customer;
- b)PREMIER HOTEL SUPPLIES LTD may immediately demand payment of any other invoices not yet due, with liability to pay interest on sums due applying from the date of the demand
- c)PREMIER HOTEL SUPPLIES LTD may take whatever steps are deemed necessary, without limitation, to secure payment; and
- d)the Customer will be liable to pay interest to PREMIER HOTEL SUPPLIES LTD on such sum from the due date for payment at the rate of 15% per month or the maximum rate permitted by law, whichever is more, accruing on a daily basis until payment is credited to PREMIER HOTEL SUPPLIES LTD account, whether before or after any judgement, if any.
- 8.1 – Unless otherwise agreed in writing, the ownership of any and all rights in and to any data, results, reports, related documents, copyright, patents, designs, conceptual solutions, analyses, processes, techniques, methodologies, inventions, software, databases, know-how, confidential information, and any other rights in intellectual property (whether registered or unregistered) (“IP”), other than third party rights, arising as a result of PREMIER HOTEL SUPPLIES LTD providing the Goods shall remain vested in PREMIER HOTEL SUPPLIES LTD.
- 8.2 – The Customer shall not without the prior written consent of PREMIER HOTEL SUPPLIES LTD use, exploit, divulge, or disclose to third parties any PREMIER HOTEL SUPPLIES LTD IP which may be communicated to or gained by the Customer in connection with or as a result of PREMIER HOTEL SUPPLIES LTD providing the Goods, save that PREMIER HOTEL SUPPLIES LTD shall grant the Customer a non-exclusive non-transferable, non-sub licensable right to use the IP in any Goods provided by PREMIER HOTEL SUPPLIES LTD to the Customer in accordance with the terms of this Agreement.
- 8.3 – PREMIER HOTEL SUPPLIES LTD in respect of the Goods and the Customer in respect of any materials relating to this Agreement provided by the Customer to PREMIER HOTEL SUPPLIES LTD and its use of the Goods, shall each indemnify and keep indemnified the other against all liability (including reasonable attorneys’ fees and other professional costs) incurred by the other arising out of or in connection with any claim alleging infringement or misuse of a third party’s IP.
Both parties shall use reasonable endeavours to keep confidential for a period of five (5) years from the acceptance date of the supply of Goods any confidential information (oral or written) provided or disclosed by or on behalf of the other. This clause shall not apply to any information which at the time of disclosure is (or subsequently becomes) published or generally available to the public (other than as a breach of the receiving party’s obligation under this clause), which at the time of disclosure was already in the possession of the receiving party (other than under an obligation to the disclosing party), which subsequently legally comes into their possession from another source, which was independently developed, or which is required to be disclosed in order to comply with a legal requirement.
If the Customer cancels, extends or delays (or purports to cancel) the Agreement or part thereof, or fails to accept supply of the Goods at the time agreed or if no time is agreed within a reasonable time, then the Customer shall be liable for (without prejudice to any other rights of PREMIER HOTEL SUPPLIES LTD) and shall indemnify and keep indemnified PREMIER HOTEL SUPPLIES against any resulting loss, damage or expense or additional costs incurred by PREMIER HOTEL SUPPLIES LTD in connection with the supply or non-supply of the Goods including without limitation the cost of any services, material, plant or tools used or intended to be used therefor and the cost of labor and other overheads, including a percentage in respect of profit.
- 11.1 – PREMIER HOTEL SUPPLIES LTD may terminate the Agreement forthwith by notice in writing if the Customer is in material breach of the Agreement and, where such breach is remediable, the Customer fails to remedy the same within 30 (thirty) days of the receipt of a written request from PREMIER HOTEL SUPPLIES LTD to do so.
- 11.2 -Each party has the right to terminate the Agreement at its discretion if the other party: (a) is unable to pay its debts; (b) is insolvent; (c) enters any form of bankruptcy, either compulsorily or voluntarily which is not dismissed within 60 (sixty) days; (d) is subject to a receiver or other third party (including without limitation a garnishor or trustee) being appointed over or taking or attempting to take possession of any the party’s assets; or (e) takes or suffers any steps that could lead to the appointment of any insolvency office holder
- 11.3 – The termination of the Agreement shall be without prejudice to the rights and duties of either party accrued prior to termination. The clauses in the Agreement which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination. The Customer shall pay the Price in respect of any Goods (or part thereof) supplied prior to termination, regardless of the reason for termination.
12. SETTLEMENT OF DISPUTES
- 12.1 – The parties shall first use reasonable endeavors to amicably settle disputes arising out of or in connection with this agreement.
- 12.2 – Where a dispute has not been amicably resolved, the parties shall enter into structured negotiations with the assistance of a mediator to be agreed upon between the Parties or in default of Agreement within 14 days to be appointed at the request of any Party by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitrators.
- 12.3 – Where mediation fails; the dispute shall be settled by referring it to arbitration before a single arbitrator to be agreed upon between the Parties or in default of Agreement within 14 days to be appointed at the request of any Party by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitrators.
13. FORCE MAJEURE
Either party shall promptly notify the other party, in writing, of any situation or event arising from circumstances beyond their control, which they could not have reasonably foreseen, and which makes the performance of all or part of the parties’ obligations under this contract impossible. Upon notifications of occurrence of such a situation or event, the performance of this contract shall be deemed to be postponed for a period of time equivalent to that caused by the force majeure and reasonable period not exceeding one (1) week thereafter shall be allowed for remobilization to continue the performance of the Agreement.
Unless otherwise agreed in writing, no failure by either party to exercise any right or remedy available to it hereunder nor any delay so to exercise any such right to remedy shall operate as a waiver of it nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
- 15.1 – The Customer shall not assign any Agreement or any part thereof without the written consent of PREMIER HOTEL SUPPLIES. PREMIER HOTEL SUPPLIES LTD may assign the Agreement or any part thereof to any member of the PREMIER HOTEL SUPPLIES LTD Group or its successors.
- 15.2 – Each right or remedy of PREMIER HOTEL SUPPLIES LTD under the Agreement is without prejudice to any other right or remedy of PREMIER HOTEL SUPPLIES LTD whether under the Agreement or not.
- 15.3 – If any provision of the Agreement shall be held to be illegal, invalid or unenforceable in whole or in part, either under enactment or rule of law, such provision or part shall to that extent be deemed not to form part of the Agreement but the legality, validity and enforceability of the remaining provisions of the Agreement shall not be affected unless the absence of the unenforceable provision would materially affect PREMIER HOTEL SUPPLIES LTD rights or remedies in which case PREMIER HOTEL SUPPLIES LTD shall have the right to immediately terminate the Agreement.
- 15.4 providing Goods to the Customer unless the customer presents a compelling reason upon which PREMIER HOTEL SUPPLIES LTD may waive this right.
16. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed and construed in accordance with the Laws of Kenya. The parties hereby irrevocably submit to the jurisdiction of the Courts of Kenya.