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CONDITIONS OF CONTRACT FOR PURCHASE AND SUPPLY GOODS

1. DEFINITIONS

“Affiliate Company” means in relation to the Purchaser, on or after entry into the Contract, any subsidiary of the  Purchaser, or any holding company controlling the Purchaser and any other subsidiary of that holding company.

“Conditions” means the terms and conditions of contract for purchase of goods stated herein.

“Contract” means the Purchase Order together with the conditions and schedules which shall constitute the entire contractual agreement between the Purchaser and Vendor

“Defects Liability Period” means the period for notifying defects as stated in the Main Contract or as otherwise notified to the Vendor by the Purchaser.

“Delivery Address” means the delivery address set out in the Purchaser Order.

“Delivery Date” means the date specified by the Purchaser for the delivery of the Goods in the Purchase Order.

“Goods” means the plant, equipment, materials or other tangible goods or things (including services) to be supplied as specified in the Purchase Order.

“Main Contract” means any contract between the Purchaser and a third party, the purpose of which the Goods are required.

“Payment Terms” means the terms of payment as set out in the Purchase Order.

“Purchaser” means the person, firm or corporation placing an order for the Goods and shall where appropriate also mean such person, firm or corporation for whom the the Goods are being ordered.

“Purchaser’s Code of Conduct” means the Purchaser’s code of conduct as provided to the Vendor [and available for inspection at (www.aquaplex.ae) or any other address notified by the Purchaser to the Vendor]

“Purchase Order” means the Purchaser’s order for Goods as set out in the purchase order form.

“Vendor” means the person, firm or corporation with whom an order for the Goods is placed.

2. TERMS AND CONTRACT

2.1. The terms of the Contract (including the Conditions) are to the exclusion of any other terms that the Vendor seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2. The Purchase Order constitutes an offer by the Purchaser to purchase the Goods in accordance with the Contract, and the Purchase Order shall be deemed accepted on the earlier of:

(i) The Vendor issuing a written acceptance of the Purchase Order; or

(ii) The Vendor doing any act consistent with fulfilling the Purchase Order, at which point the Contract shall come into existence.

2.3. Except as set out in these Conditions, no changes shall be made to the Contract, including the introduction of any additional terms and conditions, unless such changes are otherwise agreed to by the Purchaser in writing.

2.4. No communication from the Purchaser’s servants or agents shall be of contractual effect or relied on as a representation, condition or warranty unless confirmed in  writing by the Purchaser and all the Vendors conditions of sale however communicated are hereby expressly excluded unless specifically and expressly incorporated.

2.5. The Vendor waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Vendor that is inconsistent with the Contract.

3. STANDARD OF GOODS

3.1. The Vendor shall ensure that the Goods shall:

(i) correspond with their description and any application specification; and

(ii) be of satisfactory quality and fit for purpose (including for the purposes of the Main Contract).

4. VENDOR'S DRAWINGS AND MANUALS

4.1. The Vendor shall without additional cost to the Purchaser, supply all required drawings, whether needed for information only, approval or final record, operation instruction, maintenance manuals, fabrication reports, test certificates or other such documents at the times and in the number of copies as specified in the Purchase Order or any attachments thereto, to a standard and detail necessary to ensure the proper installation, operation, maintenance and repair of the goods. By approving any of the Vendor’s drawings and details as herein before mentioned, the Purchaser shall in no way be deemed to have assumed any responsibility for any design criteria or the accuracy of any design detail.

5. COMPLIANCE WITH LAWS

5.1. In performing its obligations under the Contract and in relation to the Goods, the Vendor will comply with applicable government codes, laws and regulations or customs in the territory in which the Goods are to be used. Before delivery of the Goods, the Vendor will have the Goods stamped with whatever markings are so required.

5.2. The vendor shall 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 the Contract and in respect of the supply of the Goods to Purchaser.

6. VENDOR WARRANTIES

6.1. All Goods furnished by the Vendor shall be in accordance with the Purchaser’s specification or instructions and shall be designed and manufactured to the highest standards and of best quality incorporating first class workmanship and materials throughout.

6.2. Notwithstanding any other obligations imposed hereunder, and as a minimum obligation, if any part of Goods does not meet any required specification, or is found defective, or if any defect or fault occurs in any of the Goods whether due to design (if furnished by Vendor), material, workmanship, or operating characteristics of the Goods, any time within the Defects Liability Period, the Vendor shall at his own expense, promptly make such alteration, repairs and replacements as are necessary, so that the said part conforms to the specifications and fulfils the preceding guarantees to the Purchaser’s satisfaction. If the fault or failure to function properly cannot be corrected, the faulty item shall be removed by or at the expense of the Vendor and/or the Vendor shall, without cost to the Purchaser, promptly furnish the satisfactory item which completely fulfils the specification and requirements of the  PO/Contract.

7. IDEMNITY

7.1. The Vendor shall indemnify the Purchase and any Affiliate Company against all liabilities, cost, expenses, damages and losses (including liability under the Main Contract), which the Purchaser or any affiliate Company may incur by reason of any breach of his Contract or of any applicable law or regulation by the Vendor.

7.2. The Vendor shall indemnify the Purchaser and any Affiliate Company against any loss, including but not limited to indirect and consequential losses, loss of profit, loss of reputation, penalties, damage or injury to persons or property arising as a result to defective workmanship, unsatisfactory quality of the Goods or failure to comply with Purchaser’s specifications and instructions or any claim for which the Purchaser or any affiliate Company shall be held responsible at law.

8. DELIVERY

8.1. It is an express condition that the stipulations as to the delivery time are of the essence of the Contract and the Vendor guarantees delivery of all the Goods at the places and at the times stated. If the vendor delivers Goods after the Delivery Date, the Purchaser may reject the goods. The Purchaser may however, at no extra cost, defer the Delivery Date or the point of delivery by giving reasonable notice in writing to the Vendor.

8.2. Unless the Purchase expressly instructs otherwise, the Vendor will deliver all goods to the Delivery Address. Unless expressly stated in the terms of this Contracts, the Vendor may assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance.

9. INSPECTION OF GOODS AND PACKAGING

9.1. All goods and packaging are to be made available for inspection at all reasonable hours and full facilities are to be afforded to the Purchaser or its agents for such purpose at no extra cost to the Purchaser. The Vendor is to pay for and carry out such tests and supply such certificates in connection herewith as may be specified in the Contract or Main Contract.

9.2. By inspecting any of the Goods or packing, the Purchaser shall in no way be deemed to have assumed any responsibility for their accuracy or compliance with any laid down standard and the Vendor shall be considered to be an expert with regard to all rules and regulations relating specifically to such of the Goods as may be of an hazardous or unusual nature.

9.3. The Purchaser may reject any of all Goods which do not confirm to the applicable requirements. At the Purchaser’s option, and in addition to any other remedy under this Contract or at law, the Purchaser may (a) return the non-conforming goods to the Vendor for a refund or credit: (b) require the Vendor to replace the non-conforming goods so they meet the applicable requirements.  The Purchaser’s payment to the Vendor for Goods prior to rejection of such Goods for non-conformance will not be deemed acceptance by the Purchaser.

10. UNAUTHORISED CHARGES

10.1. The Purchaser shall not accept any charges for preparation, packing, boxing, crating or any other charges applicable to the point of delivery, unless specifically provided for in the quotation accepted by stating it in PO/Contract.

10.2. In the case of Goods forwarded or tran-shipped, unloaded or otherwise handled by the Purchaser’s employees or agents, the cost thereof will be reimbursed to the Purchaser unless otherwise agreed.

11. PRICE

11.1. No variation in the Contract price will be accepted without the Purchaser’s prior written approval. Invoices must be sent to the head office shown on the face of the Purchase Order. The Vendor will reimburse the Purchaser all costs and expenses incurred resulting from failure to comply with this clause.

11.2. The Purchaser reserves the right to deduct or set off from any monies due, or becoming due to the Vendor, any monies due from the Vendor to the Purchaser in respect of Goods supplied or rendered by the Purchaser on behalf of the Vendor in completing this contract including, but not limited to, as a result of defects in the Goods supplied or delays in supplying the Goods, and any other sums payable by the Vendor to the Purchaser in respect of Goods supplied or rendered by the Purchaser on behalf of the Vendor in completing this Contract and any other sums payable by the Vendor to the Purchaser hereunder or any amounts the Vendor owes the Purchaser or any affiliate Company.

12. TITLE AND RISK

12.1. The title and risk in the Goods shall pass to the Purchaser on completion of the delivery. Until completion of the delivery has taken place, title and risk shall remain with the Vendor.

13. PAYMENT

13.1. The Vendor’s invoices will be paid according to the Payment Terms. Time in connection with payment will be calculated from the date of the Purchaser’s receipt of the Goods. If documents require corrections, the time of the payment will be calculated from the date of receipt by the Purchaser of the Vendor’s corrected documents. Notwithstanding the Payment Terms, the Purchaser is not obliged to make any payments to the Vendor until the Vendor has signed and returned a copy of these Conditions to the Purchaser.

14. TERMINATION

14.1. The Purchaser may terminate the Contract in whole or in part at any time, for any reason, by giving the Vendor seven (7) days written notice. The Purchaser shall pay the Vendor for all goods delivered as at the date notice is served on the vendor save that the Purchaser shall not be obliged to pay more than can be recovered in respect thereof under the Main Contract. The Purchaser will have no further payment obligation to the Vendor as a result of or in connection with any termination.

14.2. Notwithstanding clause 14.1, the Purchaser may terminate the Contract with immediate effect and without the incurrence of any penalty or other charge whatsoever by giving written notice to the Vendor if:

(i) The Vendor is in breach of the Contract and such breach is not capable or remedy; or

(ii) The Vendor is in material breach of the Purchaser’s Code of Conduct;

(iii) The Vendor is in breach of this Contract and such breach has not been remedied within seven (7) days of the Purchaser giving the Vendor written notice requiring the same; or

(iv) The Vendor takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business, or taking any step or action in connection with the Vendor being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business, or the Vendor suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or the Vendor’s financial position deteriorates to such an extent that in the Purchaser opinion the Vendor’s capability to adequately fulfil its obligation under the Contract has been placed in jeopardy; or

(v) The Vendor assigns, transfer or sublets the Contract or any part thereof in contravention of clause 16 herein and in addition the Purchaser shall be at liberty to take possession of all plans, equipment, materials and any other documentation that is held by or on behalf of the Vendor.

14.3.  Notwithstanding clause 14.1, the Purchaser may suspend or cancel the Contract in whole or in part by written notice to the Vendor. In the event of suspension or cancellation of the Contract the Purchaser shall make payment to the Vendor of all Goods delivered by the Vendor, prior to such cancellation, subject to the payment terms and clause 11 of these Conditions save the Purchaser shall not be obliged to pay more than has been recovered in respect thereof under the Main Contract by the Purchaser. In the event of suspension of the Main Contract for a period in excess of 180 days, either party may elect to cancel this Agreement by serving the other party with fourteen (14) days written notice.

15. PATENTS

15.1. The Vendor shall fully indemnify the Purchaser against any action, claim, demand, costs, charges or expenses arising from or incurred by reason of any infringement of any letters patent, registered design, or trade name by the use or sale of Goods, and against all costs and damages which the Purchaser may incur in any action for such infringement, or for which the Purchaser may become liable in any such action. In the event of a claim being made, or action brought against the Purchaser, arising out of the matters referred to in his Clause, the Vendor shall be promptly notified thereof, and shall, at his own expense, conduct all negotiations for the settlement of the same and any litigation that may arise therefrom. The Purchaser may, at the request of the Vendor, afford all available assistance for any such purpose and shall be repaid any expense incurred in so doing by deduction from Vendor’s account.

16. ASSIGNMENT

16.1. Neither the Contract or any part thereof shall be assigned, transferred or sublet by the Vendor except by the prior written approval of the Purchaser.

17. SUBCONTRACTING

17.1. The Vendor may not be subcontract any or all of its rights under the Contract without the prior written approval of the Purchaser. If the Purchaser approves any subcontracting, the Vendor shall remain responsible for all the acts and omissions of its subcontractors as if they were his own.

18. CONFIDENTIALITY

18.1. A party (receiving party) shall keep in strict confidence all confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contracts. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.

18.2. The Vendor shall not, without the prior written approval of the Purchaser, publicize or otherwise disclose the name of the Purchaser or the destination or description of the goods or services supplied in connection with the Purchase Order and shall treat the terms and conditions and existence of the Contract as confidential.

19. ENTIRE AGREEMENT

19.1. The contract constitutes the entire agreement between the Vendor and the Purchaser and supersedes and extinguishes all previous agreements, promises, assurance, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

20. WAIVER

20.1. Except as set out in Conditions, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not: waive that or any other right or remedy; or prevent or restrict the further exercise of that or any other right or remedy.

21. SEVERANCE

21.1. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

22. NOTICES

22.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, commercial courier. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the party’s registered address, if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

23. COMPLIANCE

23.1.  Each of the Vendor and the Purchaser agrees to pay, promise to pay, or authorize payment of any money or anything value, whether directly or indirectly, to any person (whether a government official or private individual) for the purpose of illegally or improperly obtaining any benefit including but not limited to the payment of any commission or fee in connection with the Contract or inducing any government official or to make a decision or to illegally or improperly assist in obtaining or retaining business, or to take any other improper action, in connection with the Contract or the sale of Goods, or to establish or maintain any undisclosed or unrecorded funds or assets or cause the making of any artificial entries in any books and records in connection with any Goods supplied under the Contract.

23.2. The Vendor acknowledges that it shall operate in accordance with the Purchaser’s Code of Conduct.

24. GOVERNING LAW

24.1. This agreement shall be governed by the construed in accordance with the laws of the Emirate of Dubai and UAE Federal Laws.

24.2. The seat, or legal place, or arbitration shall be DIFC, DUBAI.

24.3. The number of arbitrators shall be THREE.

25. DISPUTES

25.1. If a dispute arises out of or in connection with this agreement or the performance, the parties shall follow the procedure set out in this clause:

(a) The Sales Manager of Vendor and Procurement Manager of Aquaplex shall attempt in good faith to resolve the Dispute within 30 days;

(b) If the process in (a) does not resolve the dispute, the dispute shall be referred to the CEO of the Vendor and Managing Director of Aquaplex who shall attempts in good faith to resolve it; and

(c) If the process in (b) above does not resolve the dispute, either party may commence formal legal proceedings without further notice.

25.2. Any disputes arising out of or in connection with Contract, including any question regarding its existence, validity or termination, shall be subject to the exclusive jurisdiction of the DIFC Courts. The parties expressly submit to the exclusive jurisdiction of the DIFC Court and if, in breach of this clause, a party commences a proceeding in the courts of any other jurisdiction, including any other courts of the United Arab Emirates, it will fully indemnify the other party for all legal costs incurred in defending such proceedings.

25.3. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Arbitration Rules of the DIFC – LCIA ARBITRATION CENTRE, which Rules are deemed to be incorporated by reference into this clause.


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