- Definitions
“MAXELL INDUSTRIES”, means a legal entity purchasing Products and/or Services under the Contract.
“Contract”, means the agreement (including these General Terms and Conditions) made in writing (e.g. via an offer, purchase/sales order and order acknowledgment) between the Seller and MAXELL INDUSTRIES for the provision of Products and/or Services.
“Contract Price”, means the Price for the Products and/or Services set forth in the Contract.
“Intellectual Property Rights”, means all patents, copyrights, design rights, trademarks, trade names, service marks, logos, trade secrets, domain names, know-how and business processes and methods, confidential information and any other proprietary rights or form of intellectual property (whether registered or unregistered) capable of protection under the law, and including applications for the grant of any such rights.
“Days” means any day other than a Friday, or official public holiday in the United Arab Emirates/Middle East.
“Products”, means the products, equipment, parts or other goods (including software) purchased or ordered in terms of the Purchase Order, and includes, where applicable, work to be done or services to be rendered, in terms of the Purchase Order;
“Purchaser”, means MAXELL INDUSTRIES LLC, named in the Purchase Order
“Seller” means the party to whom the Purchase Order is addressed.
2. Offer And Acceptance
2.1 No orders other than a Purchase Order signed by an authorized signatory of the Purchaser shall be valid.
2.2 Unless the Seller, within 14 days of receipt of the Purchase Order advises the Purchaser to the contrary by letter, telefax or e-mail it shall be deemed to have accepted the Purchase Order, including these conditions, without qualification.
3. Contract Price
3.1 Unless specifically agreed to in writing, it is agreed that the Purchase Order is binding on the Parties on condition that the price of the goods will be that as recorded on the Purchase order by the Purchaser.
3.2 Price Validity – Price fixed / firm till the completion of the supplies for the Project.
3.3 Taxes and duties as applicable
3.4 Price basis- FOR Delivery at Site / Purchaser store Unloading and Material Handling shall be in supplier scope.
3.5 Transport insurance as deemed necessary based on the products and service- Supplier to ensure the prelim check with Purchaser for the same to understand the scope and act accordingly
4. Rental or Hire Charges
4.1. Unless specifically agreed to in writing, it is agreed that the rental or hire charges as stated within the Purchase Order is binding on the Parties, and are deemed to be fixed and all-inclusive for the duration of the rental / hire period.
4.2 Unless specifically provided for within the Purchase Order the said rental or hire charges shall be inclusive of transportation, delivery and removal, of all costs and expenses associated with the installation and operation of the plant or equipment, insurance costs and fuel charges.
4.3 If specifically required for within the Purchase Order for the Supplier to provide person(s) (hereafter referred to as “operators”) to operate the plant and equipment, the Supplier shall provide operators with the necessary skills, expertise and competencies to operate them during the times as stipulated within the purchase order. The Supplier shall ensure that the operators hold at all times the necessary required licenses, permits and or certificates for the operation of the plant and equipment. Not with standing anything to the contrary, the Purchaser may at any time request the Supplier to remove or replace an operator who it considers, at its sole discretion, not adequately operating the pant and or equipment.
5. Delivery
5.1 The Seller undertakes to deliver the Goods at the place and to the person specified by the Purchaser in the Purchase Order.
5.2 Time shall be of essence in regard to the Delivery if the Goods
5.3 Delivery is to be effected, as far as is reasonably possible, from local stocks with prior acceptance from Purchaser.
5.4 A delivery note, reflecting the correct Purchase Order Number, signed by the Purchaser, its employee, agent or representative shall constitute proof, on its mere production, that the Goods delivered there-under are in accordance with the quantity reflected thereon. Good delivered to constructions sites if any under the instruction of purchaser, Supplier to ensure the acknowledgement is to be taken from the prior approved person ensuring a slip of POD (proof of Delivery) is submitted with no comments to purchaser.
5.5 Should a delivery note not reflect the correct Purchase Order Number, the Purchaser may, at its discretion and reserving all other rights it may have, not take delivery of the Goods. The Seller shall be liable for all costs consequent to such election.
5.6 Unless otherwise stated, the rates in the Purchase Order are inclusive of all charges including, but not limited to, customs duties, clearance of goods from port and delivery of goods to the place specified in the Purchase Order.
6. Warranty
The Seller warrants and represents that all Goods purchased in terms of the Purchase Order shall be free of patent or latent defects, liens, claims or any other encumbrances and that such Goods shall be fit in every respect etc. for the purpose for which they are intended by the Purchaser.
7. Risk
7.1. In case of below defaults in delivery/repair/replacement, Purchaser reserves the right to purchase/rectify/replace from other source at the cost and consequences to Supplier.
a) Supplier fails to proceed with the Supply of equipment/materials with due diligence as required under this contract even after being required in writing to do so by Purchaser or abandons the contract without any valid reason, or
(b) Fails to execute and perform the contract diligently or any of its other obligations under the contract in accordance with the terms & conditions of this Agreement and the Contract despite written notice to this effect by Purchaser, or
(c) Incurs prolonged delay in execution and performance of the contract, exhausts the maximum Delay Damages applicable to the contract and fails to make any progress in the performance of the contract which is not due to any force majeure or reasons attributable to Purchaser or the End user, or
(d) Refuses or neglects to remove and replace defective materials or make good any defective work after being directed in writing to do so by Purchaser or the End user, or
(e) Is in material breach of this Agreement and the Contract.
(f) Commits an act of bankruptcy or enters into a deal or arrangement with his creditors or being a company goes into liquidation, (other than a voluntary liquidation for the purposes of reconstruction).
7.2. All risk of any loss or damage to the Goods, whether such a loss or damage be total or partial, from whatsoever cause arising, shall remain with the Seller until delivery of the Goods.
7.3 All risk of any loss or damage to rented or hired vehicle(s), plant and or equipment, whether such a loss or damage be total or partial, from whatsoever cause arising, shall remain with the Seller at all times.
8. Goods Defective In Workmanship/Specification
The Purchaser shall, at its option and at the cost of the Seller either repair, replace or substitute Goods sold or delivered and proven to be defective, the fact and extent of which the Purchaser shall be the sole judge.
9. Standards & Quality
The Goods shall be of the standard, quality and type set out in the Purchase Order. Should no specification, patent, sample or drawings be specified or provided, the Goods shall be of proper and sound quality, fit for the purpose for which they are intended by the Purchaser and shall be further subject to the satisfaction and approval of the Purchaser.
10. Discrepancies
10.1 Should it appear to the Seller that there are contradictions, discrepancies or conflict in any way relating to or arising out of the Purchase Order, the matter shall be referred by the Seller to the Purchaser for clarification prior to the Seller accepting the Purchase Order.
10.2 The parties shall then endeavor to resolve such contradiction, discrepancy or conflict in a manner acceptable to both parties.
11. Breach
In the event of the Seller on the one hand or the Purchaser on the other hand (“the defaulting Party”) committing a breach of any provisions of this agreement, then save where the payment of money is concerned, and where no notice shall be required to be given by any party to the other, the party which is not so in breach (“the aggrieved Party”) shall be obliged to give the defaulting party written notice to remedy the breach. If the defaulting party fails to comply with that notice within 7 (seven) days of receipt then the aggrieved party shall be entitled to cancel this agreement or claim specific performance, in either event without prejudice to the aggrieved party’s right to claim damages. The foregoing is without prejudice to such other rights as the aggrieved party may have at law or in terms of this agreement.
12. Assignment
The Seller shall not cede or assign a Purchase Order or any part thereof, or any share of interest therein, or entrust the performance of any work related thereto to any person without the prior written consent of the Purchaser.
13. Seller’s Duties
13.1 The Seller shall furnish the Purchaser with all the necessary and reasonable information and documentation as in law it may be obliged to give in regard to any hazards and risks in the Goods.
13.2 The Seller shall furnish the Purchaser with full details as to the health and safety measures the Purchaser should effect in regard to the handling, storage and disposal of the Goods.
13.3 Commissioning support & adequate training with manuals shall be provided as per Purchaser/ Customer requirement for the good and services sold. Price for the same shall be inclusive.
14. Packaging
In the absence of any special written agreement to the contrary, all packaging shall be deemed to be included in the Purchase Price and shall be the property of the Purchaser. Packing and covering, to ensure the safe transport and delivery of the Goods, shall be proper and effective and the Seller shall be responsible for packing the Goods in such a manner as to ensure protection against loss or damage in transit due to faulty packing. The Purchaser shall be entitled to recover from the Seller any loss or damage which the Purchaser suffered arising from or connected with the failure to comply with this clause.
15. Force Majeure
Should the Seller be delayed in or prevented from making a delivery and/or rendering a service and/or executing any work owing to force majeure, act of God or any cause whatsoever beyond the Seller’s control, the Seller shall not be liable for any loss or damage resulting there from but shall appraise the Purchaser thereof within 7 (seven) days of the occurrence of such an event.
16. Intellectual Property
The Seller indemnifies the Purchaser against any claims which might be made against the Purchaser for the infringement or unauthorized use of patent rights, trademarks, copyrights, design or intellectual property rights shall be payable by the Seller. The Seller hereby agrees that the Purchaser or any person whom the Purchaser appoints, shall have the free and unrestricted right to repair or replace any broken or worn part of any Goods notwithstanding that such Goods are subject to any patent, trade mark, design or copyright. The Seller expressly warrants that it has the authority to grant this unrestricted right to the Purchaser, or any person whom the Purchaser appoints.
17. Invoices And Payment
17.1 Invoices and statements shall be submitted monthly after delivery of relevant Goods, and be sent by the Seller directly to the Purchaser at the Invoice Address and shall state the Purchase Order Number which appears on the face of the Purchase Order, together with all the original supporting documentation duly signed by the nominated MAXELL INDUSTRIES representative.
17.2 If the Purchaser orders Goods by reference to part numbers set out in the Purchase Order, the Seller shall specifically refer to such part number in all its invoices for any such Goods sold and delivered to the Purchaser.
17.3 The Seller’s statements shall be made out on delivery but not later than the 25th of the month, and financial invoices shall be forwarded so as to reach the Purchaser by not later than the last day of the month, failing which payments of any invoices received after this date may be deferred without prejudicing the Purchaser’s right to deduct any settlement discount stipulated in the Purchase Order.
17.4 If VAT is payable in relation to a Taxable Supply, the supplier must provide the buyer with a valid tax invoice for the Taxable Supply before the payment is due. The buyer will only be required to pay the supplier for the VAT component if provided with a valid tax invoice.
18. Charges At Point Of Discharge
Unless otherwise provided in the Purchase Order al charges at points of dispatch, such as weighing, loading, sheeting, storage and demurrage, shall be borne by the Seller.
19. Price Adjustment
19.1 The Purchase Price and rates stipulated in the Purchase Order will be fixed and not subject to adjustment. Where a price adjustment is considered at the discretion of the Purchaser the following conditions will apply:
19.1.1 Such claims must be submitted by the Seller in writing at least 45 days prior to the proposed date of the adjustment by the Seller;
19.1.2 The Purchaser shall not be liable for any adjustment whatsoever beyond the Delivery Date and/or date of completion stipulated in the Purchase Order;
19.1.3 Notwithstanding anything contained in the Purchase Order, acceptance of any claim for the adjustment of the Purchase Price shall be at the sole discretion of the Purchaser;
19.1.4 No purchase price shall be effective until accepted in writing by the Purchaser and confirmed under an amendment to the Purchase Order.
20. Insurance
20.1 During the duration of this agreement the Seller shall be insured against the following risks at its own cost.
20.1.1 Any liability for damages payable at law for injury or death to any of its employees.
20.1.2 Against liability in respect of any loss or damage of its assets or vehicles or plant or equipment used by the Seller, or rented or hired by the Purchaser and provided by the Seller, for the purpose of executing the Purchase Order, which without limiting the generality of the foregoing, includes any hired vehicles, plant or equipment and temporary site accommodation and the contents thereof.
All the insurances must include a waiver of subrogation against the Buyer, its affiliates, employees, directors, successors and assigns, and other parties employed by the Buyer on the project or premises where the services or goods are provided.
20.2 The Supplier shall indemnify and hold harmless the Purchaser, its affiliates, employees, directors, successors and assigns, from and against any losses and claims in any way related to these insurance obligations, and or the failure on the part of the Supplier to maintain the insurances required under these terms and conditions.
21. Exports / Imports Payments
21.1 In the case of export/import, the Seller shall do all that is necessary, including obtaining all documentation, permits and pay all duties/taxes;
21.1.1 To enable the Goods to be exported from origin or imported into the country of destination and;
21.1.2 To enable payment to be effected in accordance with the Purchase Order.
22. Overriding Effect
The Purchase Order shall override all terms and conditions stipulated, incorporated or referred to by the Seller in any document or negotiations and shall be the only document recording the Parties respective rights and obligations in terms thereof.
23. Variation
No amendment or variation of these conditions of purchase and sale and the Purchase Order shall be of any force or effect unless recorded in writing and confirmed under a signed amendment of this Purchase Order on behalf of the Purchaser by an authorized signatory.
24. Relaxation Not Waiver
No relaxation or indulgence of these conditions by the Purchaser in favor of the Seller shall be construed as a waiver of the Purchaser’s rights.
25. Governing Law
The rights and obligations of the Parties shall be governed by the law of the United Arab Emirates.
26. Interpretation
26.1 In this agreement, unless the context required otherwise:
26.1.1 Words importing any one gender shall include the other two genders.
26.1.2 The singular shall include the plural and vice versa.
26.1.3 A reference to natural persons shall include created entities and vice versa.
26.1.4 Any word or expression defined in clause 1 shall, if expressed in the singular, include the plural and vice versa and cognate expression shall have a corresponding meaning.
26.1.5 Clause headings have been inserted for convenience only and shall not be used for or assist or effect the interpretation of this agreement.