Terms and Conditions for the Supply of Goods (Website (Sales and Retail))

1. INTERPRETATION

“ABI”

Al Bayader International LLC/Group of Companies (Annexure A)

“Buyer”

Any person, legal entity or body corporate which purchases or orders goods from ABI

“Conditions”

The terms and conditions for the supply of goods by ABI to the Buyer, as amended or varied in writing by ABI

“Commercial Agreement”

The commercial terms as to be decided between the Buyer and ABI under the various commercial circumstances

“Goods”

All goods delivered by ABI to the Buyer or to be delivered by ABI to the Buyer.

 

Hereinafter the Buyer and ABI will collectively be referred to as “Parties” and individually a “Party”.

    2.     General

2.1.  These Terms and Conditions shall apply to all contracts for the supply of goods ABI pursuant to a Commercial Agreement between ABI and the Buyer.

2.2.  Where it is agreed that ABI shall supply goods, the goods to be supplied, the price payable and any other special terms agreed between the parties shall be set out in the Commercial Agreement. All Commercial Agreements shall be subject to these Terms and Conditions. Any clauses in these Terms and Conditions will prevail in circumstances under which there are any inconsistencies between the Commercial Agreement and these Terms and Conditions.

2.3. No changes or variations to these Terms and Conditions or any Commercial Agreement shall be effective unless agreed to in writing between the parties.

 

    3.     ORDERS

3.1  Any order placed by the Buyer shall be made by way of a Local Purchase Order.

3.2  All Local Purchase Orders should include the following:

       i) The names of all Parties

       ii) A list of the goods to be supplied

       iii) The price payable for the goods, or ABI’s up to date price list

       iv) All delivery locations

 

    4.     CANCELLATION OF ORDERS

4.1. An order accepted by ABI cannot be cancelled without the written consent of ABI (at its sole discretion).

4.2.  The Buyer agrees and accepts to take possession of the entire order placed.

4.3. If the Buyer fails to take possession of all Goods  ABI is entitled to either sell the Goods elsewhere or destroy the same and claim all reasonable costs in connection with such resale or  destruction in addition to any reasonable pecuniary damages incurred by  ABI in respect of such failure.

 

    5.     PRICE

5.1. Unless otherwise agreed in writing by the Parties, the prices of the Goods are as set out in the current price list issued from time to time by ABI and are subject to variation by ABI on 30 days’ notice.

5.2. If between the date of acceptance of an order and issue of an invoice, there is an increase in the cost to  ABI of supplying the Goods which is beyond the control of  ABI, then ABI may increase the amount of the invoice in line with the increase in cost.

5.3.  Unless ABI expressly advises in writing, the price for any Goods does not include the costs of delivery of the Goods and all costs, charges or expenses incurred by ABI in relation to delivery are payable by the Buyer.

 

    6.     PAYMENT

6.1. ABI will invoice the Buyer on delivery of the Goods [except in respect of Customized Sales Agreements under which the Buyer will be invoiced prior to manufacture of the Goods and a partial upfront payment will be required as per the invoice.

6.2. Unless otherwise agreed in writing by ABI, payment by the Buyer to ABI will be made on or before the last day of the month following the month in which the invoice was issued.

6.3. Time for payment is of the essence on the Commercial Agreement.

6.4. Where payments are overdue, ABI may, in addition to any other rights it may have, in its sole discretion, either cancel orders under Clause 15 or suspend delivery of outstanding Goods under Clause 9.

6.5. If the invoice price is not paid by the due date, then interest will accrue on that amount from the date of delivery of the Goods until the price is paid in full. Interest will be paid at a rate of 12% per annum. Interest will accrue daily and be payable on demand.

 

7.     PAYMENT DEFAULT

If the Buyer defaults in payment or breaches these Conditions then it will be liable for all costs incurred by  ABI and will indemnify the ABI against any loss, liability, charge, expense, outgoing or payment which  ABI suffers, incurs or is liable for in respect of the recovery of monies owing by the Buyer to  ABI.

 

    8.     DELIVERY

ABI agrees that:

8.1. It will endeavor to deliver the Goods in respect of each Local Purchase Order, in accordance with the Delivery Date;

8.2. Should ABI become aware of a delay in the Delivery Date, ABI will provide the Buyer with written notification of such delay. Thereafter, the Parties will agree to such reasonable extension on the Delivery Date as may be appropriate under the circumstances;

8.3. If ABI fails to deliver the Goods by the extended Delivery Date, its liability shall be limited to the reasonable costs and expenses incurred by the Buyer in obtaining replacement Goods of a similar description and quality, in the cheapest market available, less the Price of the Goods.

8.4. ABI will not be liable for any delay in the Delivery Date which is due to Force Majeure events or due to the fault of the Buyer.

8.5. If within 3 business days after the day on which  ABI attempted to make delivery of the Goods and the Buyer has not taken delivery,  ABI retains the right to resell or otherwise dispose of part or all of the Goods, while maintaining the right to claim any losses sustained by  ABI from the Buyer.

 

    9.     COLLECTION

9.1.  ABI agrees that:

9.1.1.      The Goods will be ready for collection, in accordance with the Collection Date;

9.1.2.      Should ABI become aware of a delay in the Collection Date, ABI will provide the Buyer with written notification of such delay. Thereafter, the Parties will agree to such reasonable extension on the Collection Date as may be appropriate under the circumstances;

9.1.3.      If ABI fails to provide the Goods by the extended Collection Date, its liability shall be limited to the reasonable costs and expenses incurred by the Buyer in obtaining replacement Goods of a similar description and quality, in the cheapest market available, less the Price of the Goods.

9.1.4.      ABI will not be liable for any delay in the Collection Date which is due to Force Majeure events or due to the fault of the Buyer.

9.2. The Buyer agrees that:

9.2.1.      Upon the Collection Date, the Buyer will collect the entire Order or whatever instalments agreed in the Commercial Agreement from ABI’s location as agreed in the Commercial Agreement

9.3. If the Buyer fails to collect the Order in accordance with Clause 9.2.1. above, ABI reserves the right to:

a.     Send all goods to the Buyer without prior notice and at the sole expense of the Buyer; or

b.     Discard the stock at the expense of the Buyer; or

c.      Resell it to any other customer and to Use it in any mean without asking a permission from the Buyer.

 

    10.  Risk

Risk in the Goods passes to the Buyer on delivery of the Goods or on dispatch of the relevant invoice whichever is the earlier and from that time the Buyer assumes all risk of loss and damage to the Goods including without limitation all loss or damage in the course of unloading the Goods following delivery.

 

    11.  Title to Goods

 

11.1.             Notwithstanding any other provisions in these Conditions and notwithstanding that the Buyer has possession of the Goods, title to any and all Goods supplied by  ABI will remain with  ABI and no legal or equitable interest or property in the Goods whatsoever will pass to the Buyer until the Buyer has paid the full invoice price for all Goods supplied by  ABI under all invoices.

11.2.             Until title passes the Buyer must:

a.     refrain from encumbering the Goods;

b.     store, mark and keep appropriate records for the Goods so that they can at all times be identified and distinguished as the property of ABI and in particular must refrain from mixing the Goods with any Goods owned by the Buyer or any other person;

c.      allow ABI full and free access to the Buyer’s premises where the Goods are located to retake possession of such Goods if the Buyer is in any way in breach of these Conditions;

d.     not dispose of the Goods unless all of the following conditions are satisfied:

       i.         the Goods are disposed of to a bona fide sub-purchaser in the ordinary course of the Buyer’s business;

     ii.         The Goods are utilized in accordance with the ordinary course of the Buyer’s business;

    iii.         no event as specified in clause 10(a), (b) or (c) has occurred in respect of the Buyer; and

    iv.         the Buyer maintains records of all disposals of the Goods and permits inspection of the records by ABI promptly upon request; and

11.3.             The Buyer indemnifies ABI against any claim, action, damage, loss, liability, cost, expense or payment which ABI suffers, incurs or is liable for in respect of ABI’s exercise of its rights.

 

10. Termination by ABI

Without prejudice to any of its other rights, powers or remedies, ABI may cancel any order for the delivery of Goods and terminate any contract governed by these Conditions if:

a.     the terms of payment for any Goods delivered to the Buyer by ABI have not been strictly adhered to by the Buyer;

b.     the Buyer defaults under any of its obligations under these Conditions; or

c.      the Buyer becomes insolvent, commits an act of bankruptcy or, being a company, a liquidator, provisional liquidator, receiver, receiver and manager, administrator or official manager is appointed in respect of the Buyer, a mortgagee goes into possession of the Buyer’s assets or business, an application is made to appoint a liquidator or to have the company wound up, the Buyer is made subject to the supervision of a court or enters into a scheme of arrangement with its creditors or if anything analogous occurs in respect of the Buyer, in which case,  ABI will be released from all liability under the Contract.

ABI will be entitled to payment for all Goods delivered up to the effective date of termination. Termination of a Contract is without prejudice to the rights of ABI accruing up to the date of termination.

    12.  Intellectual Property

The supply of Goods to the Buyer does not constitute a transfer of any intellectual property rights in the Goods or any part thereof. The Buyer must not do anything inconsistent with or in infringement of such intellectual property rights.  ABI does not warrant that the supply by it and the use by the Buyer of the Goods does not and will not infringe the intellectual property rights of any third party.

    13.  ABI’s Obligations

13.1.             Notwithstanding any other provision of these Conditions, if the Buyer breaches a term of a Contract, ABI is not bound to perform its obligations under that Contract until the breach is remedied by the Buyer.

13.2.              ABI is not liable for any failure to observe its obligations under these Conditions where such failure is wholly or substantially due to a Force Majeure event, which includes any cause beyond the control of ABI, including strike, industrial action, war, sabotage, terrorist activity, national emergency, blockade or governmental action, inaction or request, pandemics and act of God.

    14.  SPECIFICATIONS

To the extent that the Goods are to be manufactured in accordance with a specification provided by the Buyer (Schedule 2), the Buyer shall indemnify ABI against all liabilities, costs, expenses, damages and losses (including 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  ABI in connection with any claim made against  ABI for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with  ABIs use of the Specification. This Clause 14 shall survive termination of the Agreement.

    15.  WARRANTY

15.1.             ABI warrants:

(i)              subject to any other clause of this Agreement, good title to, and the unencumbered use of the Goods;

(ii)            that the Goods are manufactured by ABI and conform with ABI’s specifications therefore and shall be free of defects in materials and workmanship.  ABI will make good by the supply of a replacement part or parts, of any defects which, under proper use, care and maintenance, appear in the Goods and which are reported to  ABI within 6 calendar months after their delivery (the “Warranty Period“) and which arise solely from faulty materials or workmanship: provided always that defective items are returned to  ABI at the Buyer’s cost carriage and insurance prepaid within the Warranty Period. Repaired or replacement items will be delivered by ABI at ABI’s cost to the Buyer. Goods replaced in accordance with this Clause 15.1. shall be subject to the foregoing warranty for the unexpired portion of the Warranty Period or for ninety days from the date of their return to the Buyer, whichever expires later.

15.2.             Notwithstanding Clause 15.1,  ABI shall not be liable for any defects caused by: fair wear and tear; materials or workmanship made, furnished or specified by the Buyer; non-compliance with  ABI’s storage, installation, operation or environmental requirements; lack of proper maintenance; any modification or repair not previously authorized by  ABI in writing.  ABI’s costs incurred in investigating and rectifying such defects shall be paid by the Buyer upon demand. The Buyer shall at all times remain solely responsible for the adequacy and accuracy of all information supplied by it.

15.3.             Subject to Clause 15.1, the foregoing constitutes ABI’s sole warranty and the Buyer’s exclusive remedy for breach thereof. No representations, warranties or conditions of any kind, express or implied, shall apply as to satisfactory quality, merchantability, fitness for any particular purpose or any other matter with respect to any of the Goods.

15.4.              ABI warrants that it will ensure that at all times it has and maintains all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.

    16.  LIMITATION OF LIABILITY

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

    17.  CONFIDENTIALITY

 Each Party may furnish (“Disclosing Party”) Confidential Information to the other Party (“Receiving Party”) as it deems necessary or helpful for the purposes of fulfilling their obligations under this Agreement. A Receiving Party shall not use Confidential Information of the Disclosing Party for purposes other than in direct relation with the purposes of this Agreement. The Receiving Party shall treat the Disclosing Party’s Confidential Information with at least the same degree of care as it would use in respect of its own confidential information of like importance, but in any event a reasonable level of care.

    18.  Force Majeure

 ABI  shall not be liable for any delay or failure to perform any of its obligations under this Agreement if the delay or failure results from events or circumstances beyond its reasonable control, including but not limited to acts of God, pandemics, strikes, lock outs, accidents, war, fire, flood or industrial disputes, and  ABI  shall be entitled to a reasonable extension of its obligations.

    19.  Relationship of Parties

Nothing in this Agreement shall be construed as establishing or implying any partnership or joint venture between the Parties and nothing in this Agreement shall be deemed to construe either of the Parties as the agent of the other.

    20.  Assignment

ABIABI shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of ABI.

    21.  Severability

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

    22.  Waiver

No failure by ABI to enforce any of these Terms and Conditions shall constitute a waiver of its rights hereunder.

    23.  Notices

Any notice to be given by either Party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Local Purchase Order or such other address as such Party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.

    24.  No third parties

Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.

    25.  Entire Agreement

This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written.

    26. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the Federal law of the United Arab Emirates and the parties hereby submit to the exclusive jurisdiction of the Dubai courts.

 

 Annexure 1

“Group of Companies” means the following companies and their subsidiaries, branches and affiliates and any new company to be established to form part of this group.

  1. H & H Group of Companies DMCC, JLT, Dubai, UAE
  2. Al Bayader International DMCC. JLT, Dubai, UAE
  3. Al Bayader International FZE. Jabel Ali Free Zone, Dubai, UAE
  4. Al Bayader International LLC. Sharjah, UAE
  5. Al Bayader International LLC. Abu Dhabi, UAE
  6. Al Bayader International LLC. Al Ain, UAE
  7. Al Bayader International LLC. RAK, UAE
  8. Al Bayader International LLC. Fujairah, UAE
  9. Al Bayader Plastic Ind. Co. LLC. Sharjah, UAE
  10. H M H Bags Packaging Materials & Paper Trading LLC, Dubai, UAE
  11. Al Bayader International LLC. Oman
  12. Al Bayader International LLC. Qatar
  13. Al Bayader Pack LLC. Qata