Terms and Conditions of Supply

1.1          Definitions:

                 Business Day: a day other than a Friday, Saturday, or public holiday in the United Arab Emirates, when banks in the United Arab Emirates are open for business.

                  Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.

          Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

                  Customer: the person or firm who purchases the Goods from the Supplier.

                  Delivery Location: has the meaning given in clause 4.2.

                  Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.

                  Goods: the goods (or any part of them) set out in the Order.

                  Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be].

                  Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.

                  Supplier: Al Bayader International registered in the United Arab Emirates with company trade license number [NUMBER]).

2.             Basis of contract

2.1          These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2          The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification [submitted by the Customer] are complete and accurate.

2.3          The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.[SB1] 

2.4          Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.5          A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of [20] Business Days from its date of issue.

3.             Goods

3.1          [The Goods are described in the Supplier’s catalogue [as modified by any applicable Specification] OR the Specification].[SB2] 

3.2          To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.

4.             Delivery

4.1          The Supplier shall ensure that:

(a)       each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(b)       if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.

4.2          The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.[SB3] 

4.3          Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

4.4          Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5          If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6          If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:

(a)       delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and

(b)       the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7          If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods [and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.

4.8          The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5.             Quality

5.1          The Supplier warrants that on delivery, and for a period of [12] months from the date of delivery (warranty period), the Goods shall:

(a)       conform in all material respects with their description and any applicable Specification; and

(b)       be free from material defects in design, material and workmanship.

5.2          Subject to clause 5.3, if:

(a)       the Customer gives notice in writing to the Supplier [during the warranty period] within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

(b)       the Supplier is given a reasonable opportunity of examining such Goods; and

(c)       the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost,

the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3          The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:

(a)       the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

(b)       the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c)       the Customer alters or repairs such Goods without the written consent of the Supplier;

(d)       the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.

5.4          Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.5          These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6.             Title and risk

6.1          The risk in the Goods shall pass to the Customer on completion of delivery.

6.2          Title to the Goods shall not pass to the Customer until:

(a)       the Supplier receives payment in full (in cash or cleared funds) for the Goods in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums

6.3          Until title to the Goods has passed to the Customer, the Customer shall:

(a)       store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

(b)       not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c)       maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d)       notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and

(e)       give the Supplier such information relating to the Goods as the Supplier may require from time to time.

6.4          If before title to the Goods passes to the Customer the Customer becomes subject to any breach of the Contract by the Customer, without limiting any other right or remedy the Supplier may have:

(a)       the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

(b)       the Supplier may at any time:

(i)          require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

(ii)         if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7.             Price and payment

7.1          The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.

7.2          The Supplier may, by giving notice to the Customer at any time up to thirty Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a)       any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b)       any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

(c)       any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

7.3          The price of the Goods:

(a)       excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and

(b)       excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

7.4          The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.

7.5          The Customer shall pay each invoice submitted by the Supplier:

(a)       within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and

(b)       in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

7.6          If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 9 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year from time to time.

7.7          All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8.             Limitation of liability

8.1.        The Supplier will not be liable for any indirect, special, consequential, or punitive damages (including lost profits) arising out of or relating to the Contract or the transactions it contemplates (whether for breach of contract, tort, negligence, or other form of action) and irrespective of whether the Supplier has been advised of the possibility of any such damage. In no event will the Supplier’s liability exceed the price the Customer paid to the Supplier for the specific Goods provided by the Supplier giving rise to the claim or cause of action.

8.2.        The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.3.        Nothing in in the Contract limits any liability which cannot legally be limited, including liability for:

(a)           death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b)           fraud or fraudulent misrepresentation; or

(c)           defective products under any Federal Law in the Territory.

8.4.        Subject to clause 8.3, the following types of loss are wholly excluded:

(a)       loss of profits;

(b)       loss of sales or business;

(c)       loss of agreements or contracts;

(d)       loss of anticipated savings;

(e)       loss of use or corruption of software, data or information;

(f)         loss of or damage to goodwill; and

(g)       indirect or consequential loss.

8.5.        This clause 8 shall survive termination of the Contract.

9.    Termination

9.1.        Any Party may terminate this Agreement with immediate effect and without the need for a court order, at any time, after a previous warning was given, if one Party is in breach of material contractual provisions of the Agreement in such a way that, whilst taking account of all the circumstances of the individual case, the breaching party, despite having had sufficient opportunity and time, being accepted to be twenty-one (21) days upon receipt of a written warning, has failed to remedy the breach.

9.2.        It is understood that no warning is necessary if the violation of material obligations under this Agreement is so serious that the non-breaching Party cannot reasonably be expected to continue the contractual relationship.

9.3.        Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

9.4.        On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.

9.5.        Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

9.6.        Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

10. Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this agreement by giving thirty days’written notice to the affected party.

11. General

11.1.     Assignment and other dealings.

(a)           Neither Party may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the other Party.

11.2.     Confidentiality.

(a)           Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2(b).

(b)           Each party may disclose the other party’s confidential information:

11.2.b.1.    to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 11.2; and

11.2.b.2.    as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c)           Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

11.3.     Entire agreement.

(a)           The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b)           Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.

11.4.   Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.5.     Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

11.6.     Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.7.     Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the Federal law of the United Arab Emirates.

11.8.     Jurisdiction. Each party irrevocably agrees that the courts of Dubai shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.