General terms and conditions Kenya

KRONES LCS CENTER EAST AFRICA LTD

TERMS AND CONDITIONS OF SALE, SUPPLY AND/OR SERVICES RENDERED

1. INTRODUCTION

1. These terms and conditions shall form the basis of any contract of sale of goods between Krones LCS Center East Africa Ltd (hereinafter referred to as Krones) and the Purchaser. For this purpose, “goods” shall include all goods (such as plant, equipment, parts of any kind etc), services (which include, but are not restricted to installations, repairs, equipment audits, advices, retrofits etc) and ancillary charges (such as travelling, accommodation etc.) arising from the activities and business of KRONES in respect of the purchaser.
2. Any variations to these conditions of sale as set out hereunder shall be of no force or effect unless KRONES agrees in writing to such variations. The placement of an order or a request for services or failing that, the delivery of goods by KRONES, shall be construed as the acceptance by the Purchaser of these conditions.

2. QUOTATIONS

1. Upon receipt of an enquiry made by the purchaser, which clearly sets out all details, Krones will, where the supply of material and/or parts is concerned, prepare a quotation which indicates a description of the requested supply together with material numbers, quantities and unit prices plus all attendant costs relative to the supply.
2. Where the purchaser’s enquiry relates to a service, Krones will prepare a quotation, which is based on an estimation of hours worked, and days spent on the service, whereby the applicable hourly rate is applied to the number of hours worked. Where the service requires overtime work, such overtime hours are charged at the applicable overtime rates. Ancillary expenses such as flights, transport, Visa, travel papers, accommodation and the like are based on actual values and are charged at cost plus a 11% handling fee. The Purchaser acknowledges, that quoted charges will vary in accordance to actual hours and days devoted to the service and may therefore exceed original quoted estimates.
3. Where materials, parts and/or services are based on foreign currencies, quotations are based on the ruling rate of the day. Where exchange rates vary by more than 5% from the date of quotation to the date of delivery or execution of service, Krones will adjust the quoted price accordingly.

3. ORDER

1. The purchaser shall be required to complete an order form detailing the goods which are to be provided by KRONES and he is to deliver either by way of telefax, scanned document by email or hand delivery the order form to KRONES, such order form being signed by an employee authorized by the purchaser to do so. Where a purchaser is not in a position to furnish a purchase order, KRONES shall in lieu of a purchase order accept a duly signed, dated and stamped Krones Quotation which was previously submitted to the purchaser, in substitution of the purchaser’s normal order.
2. Where the purchaser obtains any service as contemplated in clause 2. hereof, it shall be understood and the purchaser expressly agrees to provide at its plant all necessary services such as water, power, steam and any other service needed as a precondition to enable KRONES to carry out any and all works purchased in terms of the purchase order.
3. Furthermore, the purchaser’s order will acknowledge possible variations of quoted prices referred to in clause 2. above, where time or exchange rates dictate such variations.

4. PRICING

1. Where goods are sourced overseas by KRONES, the purchase price indicated by KRONES is based on the exchange rates at which Kenyan commercial banks will procure foreign currency of that country, as well as on prevailing freight charges and customs duties ruling on the day on which KRONES’s quote is submitted to the purchaser.
2. Where, at the time of receipt of the goods by KRONES, exchange rates, freight charges or customs duties have varied, KRONES shall be entitled to increase its sales price accordingly.
3. In addition, where KRONES is subject to price increases by its suppliers between the date of receiving the purchaser’s enquiry and the date of delivery of the goods, such increases shall be for the purchasers account.
4. All prices are quoted ex works KRONES and exclude packaging, carriage, insurance and other incidental related charges or services not usually forming portion of the goods. Where the purchaser requires delivery of the goods to its premises, all relevant costs shall be for the purchaser’s account.
5. All pricing shall be subject to current sales tax and imposts as may be legislated from time to time and quotes are made exclusive of such tax and imposts.
6. Rates applied to services and/or labour related activities shall be based on current market rates and shall not only include labour, but shall include all ancillary expenses such as travel costs, accommodation, allowances and incidental expenses.

5. PAYMENTS

1. Unless agreed to the contrary in writing, or there being a credit facility in place, payment of the purchase price by the purchaser to KRONES shall be effected on delivery of the goods and shall be made free of exchange at KRONES’s place of business or such other place as KRONES may direct from time to time.
2. The purchaser shall not have the right to withhold or defer payment of the purchase price or any portion thereof for any reason whatsoever (even in the event that a dispute is alleged), nor shall the purchaser be entitled to set-off or deduct against the purchase price any amounts due by KRONES to the purchaser. Payment shall be made by the purchaser free of any bank exchanges and other charges or commissions.
3. Any amount not paid by the purchaser on due date shall, without prejudice to KRONES’s rights arising from such failure, bear interest from due date to date of payment at a rate equal to 2% (two per centum) above the prime overdraft rate charged by KRONES’s bankers from time to time, calculated daily in arrears on all overdue amounts. A certificate given by the said banker specifying such rate shall be conclusive proof (whether in a court of law or otherwise) of the prime overdraft rate.
4. Any dispute between KRONES and the purchaser as to the amount by which the purchase price is to be increased as contemplated in clause 4c hereof shall be referred to KRONES’s auditors and their decision shall be final.
5. In the event that the purchaser does not reside or have its place of business in the Republic of Kenya and he is in terms of any laws in force at his place of business required to withhold taxes or imposts of whatever kind, he hereby indemnifies KRONES from any such imposts and agrees that such imposts shall be for his own account.

6. RETURN OF DOCUMENTS AND RECORDS

1. All drawings, diagrams, documentation and any other information provided to the purchaser by KRONES, shall remain the exclusive property of KRONES.
2. KRONES may request the purchaser to return any material containing, pertaining to or relating to confidential information disclosed pursuant to the terms of the contract and may, in addition, request the purchaser to furnish a written statement, duly signed by a director / member or in person, to the effect that, upon such return, the purchaser has not retained in its possession or under its control, either directly or indirectly, any such material or copies thereof. As an alternative to the return of the material, the purchaser shall, at the instance of KRONES, destroy such material and furnish to KRONES a written statement, duly signed by a director / member or in person, to the effect that all such material has been destroyed. The purchaser shall comply with the request in this regard within 7 days of receipt of a request in writing from KRONES.

7. ORDER CANCELLATIONS AND GOODS RETURNS

In the event that Krones agrees to cancel an order placed by the Purchaser or to accept goods previously sold and thereafter returned by a Purchaser and which returns/cancellations are not subject to any warranty or guarantee claims, the following provisions shall apply:

1. For any cancellation or return to be recognized, Krones is to issue its written consent.
2. Goods which were custom made or are manufactured to customer specification or are not classified a standard Krones part cannot be returned to Krones.
3. Where customized goods as referred to in clause 7.b. above are in the process of manufacture and the manufacturing process is stopped at the request of the Purchaser, the Purchaser shall meet all expenses so far incurred by Krones in connection therewith.
4. Where the Purchaser returns standard goods to Krones he will be obliged to meet all attendant costs connected there with such as freight, packaging, duties as well as bank and/or finance charges, if any, as well as a handling charge of 5% (five per centum) calculated on the agreed return value of the goods.
5. The Purchaser agrees that all costs and charges listed above may be deducted from any possible refund due to him, or, if no refund accrues, Krones may invoice such costs to the Purchaser.

8. WARRANTIES

1. Save for what is set out below in this clause 6, the sale is “as is” and all warranties, whether express or implied are excluded.
2. KRONES warrants its goods and services to be free from defects in material and workmanship under normal use and service, subject to the following:
   
    
   this warranty shall:
    
   1. be limited to the period specified in the quotation/offer given to the purchaser prior to concluding the sale, but shall in any event never exceed the periods granted to KRONES by its supplier and/or original equipment manufacturer, and shall commence on the date of delivery of the goods to the purchaser and if deliveries are effected on different dates, shall apply to each item so delivered for the same periods as stated above from date of each delivery;
   2. not extend to cover any loss whether consequential or otherwise suffered by the purchaser or anyone else;
   3. oblige KRONES only to make good, repair or replace at its discretion any defective part returned to it at the expense of the Purchaser;
   4. not cover the cost of labour or travelling incurred by either KRONES or the purchaser for the purpose of or in connection with giving effect hereto;
   5. not extend to damages or defects which in the opinion of KRONES arise from or are caused by fair wear and tear, incorrect or careless handling, excessive or improper use, unsuitable operation methods, or, if the sale relates to change parts, the incorrect or unsuitable composition thereof;
   6. not extend to any components or parts of the goods which may be covered by or are subject to a warranty given by a supplier or manufacturer thereof to KRONES, and, where permissible, KRONES shall in respect thereof cede all its rights in connection thereto to the purchaser upon its request, provided a suitable indemnity is given by the purchaser to KRONES;
   7. be in lieu of any other warranty express or implied;
   8. not apply to any of the goods which have been altered, modified or repaired by anyone other than KRONES unless with KRONES’s written consent;
   9. apply only to the purchaser itself as the warranties cannot be ceded, alienated or transferred by the purchaser;
   10. be subject to the purchaser complying with all provisions contained in the service and technical manuals of the respective goods and the directions which may be given by KRONES, the supplier and/or the manufacturer of any of the components of the goods; and
   11. in any event, not endure for a period of longer than 60 days.
3. The onus of proving that any defect is covered by this warranty shall be on the purchaser.
4. In the event that the purchaser has failed to effect timeously any payment to KRONES in terms of this agreement, KRONES shall be entitled, without prejudice to any of its rights, to withhold performance in terms of any warranty referred to herein until such time as such payment has been effected. The failure by the purchaser to remedy a breach of the contract shall not in any way alter, suspend, extend or novate the warranty period.
5. No undertakings, warranties or representations given by or on behalf of KRONES as to the performance of the goods or the specification thereof or any other matter or thing relating thereto or to any other matter or question arising hereunder shall be effective, unless specifically recorded in writing and signed by an authorized representative of KRONES. Insofar as any performance figures and details may have been given by KRONES in respect of the goods, these are based on experience and are those KRONES would expect to obtain under test conditions. KRONES shall consequently not be liable for any failure to obtain such performance figures unless they have been specifically warranted in writing. The purchaser is deemed to have satisfied itself that the performance and capacity of the goods is sufficient for the purpose for which they have been acquired by the purchaser. KRONES consequently gives no warranty and makes no representations in respect of the suitability of the goods for any particular purpose, whether or not that purpose is known to KRONES.
6. The purchaser in turn warrants that it will perform all its obligations required to enable KRONES to perform in terms of the contract and that should it fail to do so, it indemnifies KRONES against all damages, losses and cost of whatever nature suffered as a result of its failure. In addition, the purchaser warrants that all information provided to KRONES is accurate and up to date and that the person supplying the information is duly authorized to do so and furthermore, that the product supplied by KRONES shall not be used or deployed outside of the scope and purpose for which it was supplied and/or designed.

9. LIMITATION OF LIABILITY

1. Under no circumstances shall the purchaser have any claim for direct, indirect consequential or special damages or loss of revenue against KRONES arising from damages, costs or injury caused by or as a result of defects in the goods, whether such defects are latent or patent or caused by or resulting from accident, fire, flood or lightning, war, state of war, act of terrorism, sabotage or any officially declared state of emergency, riots, embargoes, sanctions, boycotts, workmen, stay-aways, strikes, non-availability of materials, authority, or by any force majeure of any description, whether of the nature herein indicated or not. In addition, the purchaser indemnifies KRONES against any claims made by any third party whose claims arise from any alleged defect in the goods or in the performance by KRONES of its obligations in terms of this contract.
2. In the event that the purchaser can prove that the cause of any damage was due to the gross negligence or wilful misconduct of KRONES, then the liability of KRONES will be limited to the consideration due by the purchaser to KRONES for the products delivered in terms of the contract. Damages as limited by this clause are the purchaser’s sole and exclusive remedy.
3. Where goods are manufactured or packed or procured in accordance with the purchaser’s instructions, or where goods are supplied or provided by KRONES in accordance with any design required by the purchaser, the purchaser shall accept all responsibility for, and indemnifies KRONES against, any claim of whatsoever nature, including but not limited to claims for passing-off, infringement of any patent, copyright, trade mark or otherwise, by reason of the manufacture, packaging or distribution of the goods.
4. Where the execution of services obtained by the purchaser is disrupted, inhibited or subjects Krones or any of its employees and/or contractors to personal danger by virtue of accidents, fire, flood or lightning, war, state of war, sabotage or any officially declared state of emergency, riots, embargoes, sanctions, acts of terrorism, boycotts, workmen stay-aways, strikes, non-availability of materials, undue interference by any authority, or by any force majeure of any description, whether of the nature herein indicated or not, KRONES shall be entitled to stop any and all services in progress and to withdraw its workforce without committing a breach of contract or incurring liabilities of any kind.

10. DELIVERY

1. Unless otherwise stated to the contrary in writing, delivery of the goods shall be effected at KRONES’s stores, at such time that KRONES advises that it is ready and able to deliver. Should KRONES be prevented from providing the goods within a reasonable time by circumstances beyond its control, such as Acts of God, trade disputes, hostilities, embargoes, legislation, strikes etc., the contract of sale shall lapse in respect of the goods not delivered, but the purchaser shall be liable for any delivered portion, if any, in terms of the sale.
2. If the goods are to be delivered to the purchaser at a place other than KRONES’s stores, the carrier or person effecting such delivery shall be deemed to be the agent of the purchaser, notwithstanding that the carriage or freight or other charges in connection therewith are paid by KRONES. Delivery to such carrier or person shall be deemed to be a delivery made to the purchaser. For the purpose of this clause, proof of delivery shall be evidenced by the attendant Bill of Lading, or Airway Bill, as the case may be together with a copy of the packing documentation which details all goods delivered. If delivery of goods is effected by KRONES itself at a place designated by the purchaser, such delivery, for the purpose of this sale, shall be deemed to have been effected at KRONES’s stores as set out above.
3. KRONES’s obligation to deliver the goods shall be subject to the availability of the goods from its suppliers and equipment manufactures and time shall not be deemed to be of essence in this contract.
4. Any delivery dates advised by KRONES to the purchaser are approximate only and whilst every effort will be made by KRONES to adhere to such delivery dates, the purchaser shall not be entitled to cancel the contract or to refuse to accept delivery of the goods when they are tendered, nor shall the purchaser have any claims against KRONES, whether for damages or otherwise, arising from any late, improper or non-delivery. If no delivery date is specified, KRONES will effect delivery as soon as it conveniently able to do so.
5. Should the purchaser for whatever reason fail and/or refuse to take delivery of all or any part of the goods, KRONES shall, in its sole discretion, be entitled to suspend any further deliveries, but shall nevertheless be entitled to claim payment of the full purchase price.
6. KRONES shall be entitled to effect partial delivery of the goods.
7. Upon delivery of the goods to the purchaser, risk therein shall pass to the purchaser. Notwithstanding delivery of the goods to the purchaser, the ownership therein shall remain with KRONES until the purchaser has paid the purchase price and all associated costs in full to KRONES.
8. For the purpose of this clause, delivery shall include the completion of any work as set out in clause 2.c. hereof.

11. BREACH

1. Should the purchaser:
   1. fail to pay the amount due in terms of the sale on due date; or
   2. commit any act of insolvency, surrender the purchaser’s estate, cease to carry on business or enter into any compromise or arrangement with its creditors; or
   3. commit any other breach of these terms and conditions; or
   4. allow any judgment sounding in money against the purchaser to remain unsatisfied for a period of seven days
2. KRONES may:
   1. forthwith and without notice cancel this contract and at its sole option;
   2. recover any damages which it may have suffered which shall include the difference between the balance outstanding by the purchaser in terms of the sale and the market value of the goods as valued by an appraiser appointed by KRONES, when they are recovered by KRONES;
   3. recover possession of all goods;
   4. retain as forfeited all amounts paid by the purchaser up to the date of cancellation;
   5. recover any installments which have become due but which remain unpaid; and
   6. suspend further deliveries and/or forthwith recover the amount of the purchase price less any amounts already paid by the purchaser, together with interest (as determined above, calculated from the date of default) and any damages or losses of whatever nature suffered by KRONES; and
   7. enforce compliance by the purchaser with the terms of this sale.
3. The exercise of KRONES’s rights referred to above, shall be without prejudice to any other rights which KRONES may have in terms of this contract of in law.

12. EXPORT AND IMPORT CONTROL AND EMBARGO REGULATIONS

(1) The parties are aware that the product may be subject to export and import restrictions. In particular, there may be licensing requirements or the use of the product may be subject to restrictions abroad. You undertake to comply with the applicable legal provisions relating to export control and sanctions lists of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. This includes in particular relevant embargo regulations relating to goods, persons and use.

(2) Our performance of the contract is subject to the proviso that there are no impediments to performance due to national and international regulations of export and import law or any other statutory provisions.

(3) Any resale and transfer of the listed delivery item, directly or indirectly, to Russia or Belarus is generally prohibited and requires the prior approval by KRONES. The prohibition also extends to all subsequent or spare part deliveries for the delivery item. If buyer/recipient violates this prohibition, KRONES shall be entitled and obliged to take appropriate remedial action. By way of example only, this may include the following measures, such as claims for damages, notification to the competent authorities and/or termination of the business relationship. Any resulting costs and risks shall be borne by the buyer/recipient.

(4) Furthermore, you confirm that at this point in time

a. there is no knowledge of any future uses of the delivered goods by military customers or customers with military end uses;

b. there is no knowledge of future uses of the delivered goods in connection with NBC weapons and launchers;

c. there is no knowledge of future uses of the delivered goods in connection with the construction or operation of civil nuclear facilities;

d. there is no knowledge of any future uses of the goods supplied in connection with the violation of human rights or in connection with acts supporting terrorism.

(5) We reserve the right to require you to sign end-use statements as part of our own compliance reviews, if required by business policy decisions or legal requirements.

13. GENERAL

1. KRONES may at any time cede, transfer and assign its rights, title and interest in the contract to any person or company without the consent of the purchaser.
2. The purchaser chooses domicilium citandi et executandi for all purposes arising here from at one of its addresses shown in the relevant sales documents. Any notice to be given to the purchaser in terms hereof shall be deemed to have been given three (3) days after posting it per prepaid registered post or on the date of telefaxing by KRONES or on receipt if delivered by hand.
3. The purchaser consents to the jurisdiction of a magistrate’s court having jurisdiction for the purpose of any action to be instituted against it by KRONES arising out of this agreement, notwithstanding that such action would otherwise have been outside the jurisdiction of the magistrate’s court in view of the amount of the claim. This concession shall not preclude KRONES from proceeding in any other competent court having jurisdiction.
4. The laws of the Republic of Kenya shall apply in all respects to and shall govern this contract, its interpretation, construction and enforcement.
5. Any relaxation or indulgence granted by KRONES to the purchaser in regard to any of the terms of this contract shall not be deemed as a waiver of any of KRONES’s rights. The purchaser shall remain obliged to fulfill all conditions of this contract with due diligence.
6. In the event of KRONES instructing its attorneys to take any action or to render any services for the enforcement of its rights in terms of this contract, the purchaser shall be liable for all legal costs incurred by KRONES calculated on the attorney and own client scale, whether action has commenced or not. Insofar as KRONES may proceed in any court of law, the costs shall be calculated on the highest scale of fees applicable in that court to defend actions, whether the action is defended or not. The purchaser shall furthermore be liable for and shall pay collection commission of 10% (ten per centum) on all amounts collected by KRONES’s attorneys on behalf of KRONES pursuant hereto and also for all expenses including tracing fees incurred by KRONES in effecting its rights in terms of this contract. All amounts recovered shall firstly be allocated towards the aforesaid costs and charges, thereafter to interest and finally to capital.

General Terms and Conditions of KRONES AG Last update: [25.07.2024]