Conditions of contract for purchase and supply goods
“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.
- 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.
- 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).
- 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.
- 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.
- 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.
7.1. 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.
8.1. 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.
- 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.
- 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.
11.1. 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.
- 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.
13.1. 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.
14.1. 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.
15.1. 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.
16.1. 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.
17.1. 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.
18.1. 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.
- 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.
20.1. 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.
21.1. 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.
22.1. 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.
23.1. 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.
- 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.
25.1. 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.
Terms and conditions for the supply of goods and services
In these Conditions the following definitions apply:
Business Day means a day other than Friday, Saturday and public holidays when banks generally are open for non-automated business in the UAE;
Customer means the person/s or firm who purchases Goods and/or Services from the Supplier;
Conditions means the terms and conditions set out in this document;
Confidential Information means any commercial, financial or technical information, information relating to products, plans, know how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to this Contract;
Contract means the agreement between the Supplier and the Customer for the sale and purchase of Goods and/or Services, incorporating these Conditions;
Delivery Location means the address for delivery of the Goods and/or Services as set out in the Purchase Order/Contract;
Force Majeure means an event or sequence of events beyond the supplier’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to an act of God, fire, rain or storm, earthquake or other natural disaster; failure in production or production equipment; demands or requests of Government authorities; war, riot, strikes, diplomatic blockade, labor shortages or civil unrest; interruption or failure of supplies of power, fuel, water, raw materials, transport, equipment or telecommunications service or material required by for performance of the Contract);
Goods means the goods set out in the Purchase Order and to be supplied by the Supplier to the Customer;
Intellectual Property Rights means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, domain names and all similar rights;
Order means the Customer’s order for, and specification of the Goods and/or Services from the Supplier, as set out in the Customer’s written acceptance of the Supplier’s quotation for the supply of Goods and/or Services;
Supplier means Aquaplex FZE, P. O. Box 123039, Sharjah, U.A.E., its affiliates, subsidiaries and assigns etc.;
Services means the services, supplied by the Supplier to the Customer as set out in the Specification below;
Specification means the description or specification of the Goods and/or Services set out in the Order and provided by the Customer.
- Basis of Contract
2.1 These terms and conditions apply and shall, along with the Order and the Supplier’s acceptance, constitute the complete Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract and are hereby expressly rejected by the Supplier.
2.3 No variation of these Conditions or to an Order, or to a quotation from the Supplier will be binding unless expressly agreed in writing and executed by a duly authorized signatory on behalf of the Supplier/Customer.
2.4 Each Order by the Customer to the Supplier will be deemed to be an offer to purchase Goods and/or Services and subject to the Conditions.
2.5 The Supplier reserves the right at all times to reject any Order, in whole or in part, at its sole discretion.
2.6 Any quotation by the Supplier for the provision of Goods and/or Services will be deemed to be:
2.6.1 an invitation to treat (and shall not be an offer) by the Supplier to supply Goods and/or Services on and subject to the Conditions; and
2.6.2 will be valid within the time limit set out therein.
2.7 A Contract will be formed upon the earlier to occur of:
2.7.1 Written acceptance by the Supplier of the Customer’s Order;
2.7.2 Supplier has started the execution of the Customer’s Order; and/or
2.7.3 The execution of a specific written agreement by both the Supplier and the Customer.
2.8 Upon the formation of a Contract as outlined in clause 2.7, no variation of the terms or cancellation of an Order may be made by the Customer without the written agreement of the Supplier.
2.9 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The price for the Goods and/or Services will be as set out in the Supplier’s quotation or in default of such provision will be calculated in accordance with the Supplier’s standard scale of charges in force on the date of formation of the Contract.
3.2 The price includes standard packaging. In the event the Customer requires packaging other than the standard provided by the Supplier, then further packages charges will apply.
3.3 The price is payable as set out in the Supplier’s quotation. It is understood and agreed by the Customer that the Price is exclusive of any value added tax (“VAT”), or similar tax, which shall be added thereon as applicable.
3.4 The Supplier reserves the right to increase the price for any undelivered Goods and/or Services with suitable justifications:
3.4.1 by giving  days’ written notice to the Customer, such increase to take effect in respect of any relevant Goods and/or Services delivered after the expiry of such notice; or
3.4.2 with immediate effect by written notice to the Customer, where such increase arises as a consequence of any increase in the direct cost to the Supplier of supplying the relevant Goods and/or Services which is due to any factor beyond the control of the Supplier.
- Charges and Payment
4.1 The Supplier will invoice the Customer for Goods and/or Services in the manner agreed upon in the Order.
4.2 The Customer will pay all invoices:
4.2.1 in full, without deduction or set-off in the manner agreed upon in the Supplier’s quotation, and where VAT is charged, the Customer will pay the amount of VAT upon receipt of a valid tax invoice from the Supplier.; and
4.2.2 to the Supplier’s nominated bank account as specified by the supplier or in PDCs as agreed by the supplier with the Customer.
4.3 Where sums due hereunder are not paid in full by the due date:
4.3.1 the Supplier may, without limiting its other rights, charge interest on such sums at twenty four percent (24%) a year compounded annually, and
4.3.2 interest will accrue on a daily basis, and apply on the unpaid amount from the due date for payment until actual payment in full, whether before or after judgment of any court deliberating in the matter.
4.4 In the event that invoices are not paid within the agreed timeframe, we reserve the right, without any obligation whatsoever, to temporarily suspend deliveries and /or withdraw from the supply agreement.
- Credit limit
The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
6.1 The Goods will be:
6.1.1 delivered to, accepted and received by the Customer, his carrier or his duly appointed representative at the Delivery Location specified in the Order, or
6.1.2 made available for collection by the Customer at the premises set out in the Order. The Customer will collect the Goods within the period specified in the Order.
6.2 The Goods will be deemed delivered:
6.2.1 if delivered by or for the Supplier under clause 6.1.1, on arrival of the Goods at the Delivery location
6.2.2 if collected by the Customer under clause 6.1.2, on completion of loading at the Supplier’s premises.
6.3 The Goods may be delivered by instalments. Any delay (within reason) in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
6.4 Each delivery of the Goods will be accompanied by a delivery note stating:
6.4.1 the date of the Order;
6.4.2 the relevant Customer and Supplier details;
6.4.3 the product numbers and type and quantity of Goods in the consignment and specifications as mentioned in the order;
6.4.4 any special handling and other instructions; and
6.4.5 The Supplier will use its reasonable endeavors to meet delivery dates but such dates are approximate only, and time of delivery is not of the essence.
6.5 If the Customer fails to accept delivery of or collect the Goods as provided in clause 6.1.1 or
6.1.2 on the date or within the period set out in the Order:
6.5.1 delivery of the Goods will be deemed to have occurred on the date set out in the order
6.5.2 the Supplier will store and insure the Goods pending delivery, and the Customer will pay reasonable storage and insurance charges.
6.6 If, 10 Business Days after the due date for delivery or collection, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods. The supplier will:
6.6.1 deduct reasonable storage charges and costs of resale; and
6.6.2 invoice the Customer for any shortfall of the resale price below, the price payable by the Customer for the Goods.
- Inspection, Notification of Defects and Damages
7.1 The Customer shall inspect the Goods delivered for quality and specification and, in the event of a non-conformity to the quality or specifications, shall notify the Supplier in writing within 5 Days of delivery or before actual installation whichever happens earlier.
7.2 No replacement will be made, nor any claim or compensation paid, by Supplier to Customer if materials are found defective after the period referred to in clause 7.1.
7.3 In the event that the Supplier, in its sole discretion, finds defects as set out in clause 7.1, the Supplier shall issue a credit note at the rate invoiced. Replacement items will be provided on the same conditions as the returned defective Goods.
7.4 The Customer shall provide the Supplier with access to the defective Goods prior to commencement of remedial work.
- Returned Goods
8.1 The return of Goods shall be at the Supplier’s sole discretion.
8.2 In the event that the Supplier, at its sole discretion decides to accept return of the Goods, the return of undamaged standard Goods are subject to following Restocking Fee:
Period of Sale Handling Charges (percentage of invoiced value)
0 to 3 months – 15%
4 to 6 months – 30%
7 to 12 months – 45%
8.3.1 Purchase Orders issued for larger diameters (200mm / 8” & above) and specifically fabricated items once received will not be treated as cancelled/ cannot be returned once delivered.
8.3.2 Specially ordered products, fabricated products, items as stated in clause 8.3.1 above will not be cancelled under any circumstances even with a “Restocking Fee”. It is important, therefore, that you check carefully that the offered product(s) meet your requirements and conform fully to your project specifications.
- Title and risk
9.1 Risk in the Goods will pass to the Customer on delivery under clause 6.1.
9.2 Title to the Goods will pass to the Customer once the Supplier has received payment in full for the Goods.
9.3 Until title to the Goods has passed to the Customer, the Customer will:
9.3.1 store the Goods separately from all other material in the Customer’s possession;9.3.2 take all reasonable care of the Goods and keep them in reasonable condition;
9.3.3 insure the Goods:
(i) with a reputable insurer
(ii) from the date of delivery
(iii) against all risks
(iv) for an amount at least equal to the purchase price + 10%
(v) noting the Supplier’s interest on the policy;
9.3.4 ensure that the Goods are clearly identifiable as belonging to the Supplier;
9.3.5 not remove or alter any mark on or packaging of the Goods;
9.3.6 inform the Supplier as soon as possible if it becomes subject to any of the events set out in clause 16.1;
9.3.7 provide the Supplier such information concerning the Goods as the Supplier may request from time to time.
9.4 The Customer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clause 16.1 is or is likely to occur.
9.5 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clause 16.1, the Supplier may require the Customer at the Customer’s expense to deliver the Goods to the Supplier.
- Supply of Services
10.1 The Supplier shall provide the Services to the Customer in accordance with the Specification in all material respects.
10.2 The Supplier shall use all reasonable endeavors to meet any performance dates for the Services specified in Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
10.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
10.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
10.5 The Customer shall ensure that any representative of the Supplier providing the Services is provided with the necessary access to the site and all reasonable safety obligations are observed.
11.1 The Supplier warrants that, for a period of 12 months from delivery or in case of delay in taking delivery by the Customer, from the date delivery was scheduled to take place (the Warranty Period), the Goods will:
11.1.1 conform in all material respects to their description and to any applicable Specification;
11.1.2 be free from material defects in design, material and workmanship;
11.2 The Supplier will, at its option, repair, replace or refund the price of defective Goods, provided that and subject to clause 11:
11.2.1 the Customer informs the Supplier in writing during the Warranty Period and promptly on discovery that some or all of the Goods do not comply with clause 11.1;11.2.2 the Customer gives the Supplier a reasonable opportunity to examine the defective Goods;
11.2.3 the Customer returns the defective Goods to the Supplier at the customer’s own expense.
11.3 The Conditions will apply to any Goods repaired or replaced under clause 11.2.
11.4 The Supplier will not be liable for any failure of the Goods to comply with clause 11.1:
11.4.1 where such failure arises by reason of fair wear and tear, could be expected to arise in the normal course of use of the Goods, willful damage, negligence, or abnormal working conditions;
11.4.2 to the extent caused by the Customer’s failure to comply with the Supplier’s instructions as to: (i) storage, installation, commissioning, use or maintenance of the Goods, or (ii) good practice in relation to the storage, installation, commissioning, use or maintenance of the Goods (iii) overstressing, overloading, operating media, construction work or building ground;
11.4.3 to the extent caused by the Supplier following any design or specification or requirement of the Customer in relation to the Goods;
11.4.4 where the Customer or any third party repairs or alters any Goods without the Supplier’s prior written agreement or uses other than original spare parts; or
11.4.5 where the Customer uses any of the Goods after notifying the Supplier that it does not comply with clause 11.1
11.5 Except as set out in this clause 11:
11.5.1 the Supplier gives no warranty in relation to the Goods; and
11.5.2 the Supplier does not warrant the characteristics in the technical documents such as drawings, descriptions, illustration and data on dimensions, performance and weight, references to standards, which may be subject to change.
- Obligations of the Customer
12.1 The Customer will:
12.1.1 place all Orders on the terms of the Conditions and ensure that the contents of any Order are complete and accurate;
12.1.2 ensure that the Specification which it provides is complete and accurate and contains all information the Supplier may require;
12.1.3 co-operate fully with the Supplier in relation to delivery or collection of the Goods;
12.1.4 strictly adhere to the payment terms set out in the Supplier’s quotation.
12.1.5 prepare the Customer’s premises for the supply of the Services;
12.1.6 obtain and maintain all necessary licenses, permissions and consents which may be required for the Services before the date on which the Services are to start;
12.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
12.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
12.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause; and
12.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
13.1 Neither party will be liable for loss of data, any form of indirect, consequential or special loss, or any loss of or failure to realize expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect, and, in each case, however arising.
13.2 Other than as set out above, the Supplier limits its liability (however arising) in respect of or in connection with the Goods in any installment, and otherwise in connection with this Contract, to the price paid by the Customer of defective products.
14 Confidentiality and Intellectual Property
14.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other’s Confidential Information as required to perform the Contract.
14.2 This clause 14 will remain in force three years after termination of the Contract.
14.3 All technical documents such as drawings, descriptions, illustration and data on dimensions, performance and weight, references to standards shall remain the exclusive property of the Supplier and may only be used for the agreed purposes or as the Supplier may consent.
14.4 All intellectual property rights in or arising out of or in connection with the Services shall be owned by the Supplier.
- Force Majeure
15.1 The Supplier will not be liable if they are delayed in or prevented from performing its obligations due to Force Majeure.
15.2 If Force Majeure event continues for a period of 3 months, Supplier is entitled to withdraw from the Contract without the Customer having any right to compensation.
16.1 The Contract may be terminated forthwith at any time by the Supplier on written notice to the Customer if:
16.1.1 the Customer commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or is not remedied within 15 days of written notice to do so;
16.1.2 the Customer suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;
16.1.3 the Customer negotiates with its creditors for rescheduling of its debts or passes a resolution for winding-up or for the appointment of an administrator, or a liquidator;16.1.4 there is a material change in the management, ownership or control of the Customer;
16.1.4 the Customer suspends trading, ceases to carry on business, appears or threatens to do either;
16.2 Without limiting its other rights or remedies, the Supplier may immediately suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment.
16.3 On termination of the Contract for any reason:
16.3.1 the Customer will immediately pay all invoices of the Supplier then outstanding, along with the interest as per clause 4.3;
16.3.2 the Supplier will, invoice the Customer for all Goods delivered or provided but not yet invoiced and the Customer will pay such invoice within 15 Business Days by way if a CDC/PDC, as may have been agreed;
16.3.3 the accrued rights and liabilities of the parties will not be affected; and
16.3.4 any clause which expressly or by implication are to survive termination will do so.
17.1 No set-off
All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless the Customer is compelled by law to deduct or withhold any such amounts, in which case it will pay to the Supplier such additional amount as will ensure that the Supplier is paid the full amount it would have received but for such deduction or withholding.
The parties are independent businesses and not principal and agent, partners, or employer and employee.
If any part of these Conditions is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Conditions and the remaining provisions of the Conditions will otherwise remain in full force.
Notices under this Contract must be in writing and sent to the persons and addresses set out in the Order and Supplier’s acceptance. They may be given, and will be deemed received:
17.4.1 by registered mail or courier: two Business Days after dispatch;
17.4.2 by airmail: seven Business Days after posting;
17.4.3 by hand: on delivery;
17.4.4 by e-mail: on delivery.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
The terms of the Conditions prevail over those of the Order.
17.7 Entire Agreement
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
This Contract will bind and benefit each party’s successors and personal representatives.
17.9 Governing Law, Jurisdiction and Disputes
17.9.1 This agreement/Invoice 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 laws of the Emirate of Dubai and UAE Federal Laws.
17.9.2 Each party irrevocably agrees that the courts of DIFC shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement/Invoice or its subject matter or formation.
17.9.3 If a dispute arises out of or in connection with this Agreement/Invoice or the performance, the parties shall follow:
(a) A Manager of Aquaplex FZE (the seller) and Procurement Manage (of the Customer) 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 Aquaplex FZE and the Managing Director (of the Customer) who shall attempt 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.
17.9.4 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, whose rules are deemed to be incorporated by reference to this clause.
17.9.5 The seat, or Legal place, or arbitration shall be DIFC, Dubai.
17.9.6 The number of arbitrators shall be THREE.