Commercial (Terms & Conditions)

1. INTERPRETATION

1.1                Definitions:

Business Day	a day (other than a Friday, Saturday or public holiday) when banks in the UAE are open for business.
Conditions	the terms and conditions set out in this document as amended from time to time in accordance with clause 11.2.
Contract	the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Terms and Conditions.
Customer	the firm who purchases the Goods from the Supplier
Delivery Location	has the meaning specified in clause 4.2.
Force Majeure Event	an event or circumstance beyond a party’s reasonable control, including but not limited to acts of God, acts of war, terrorism, riots, revolutions, or strikes.
Goods	the goods (or any part of them) set out in the Order.
Order	the Customer’s order for the Goods, as set out in the Customer’s purchase order form attached to these Conditions under Schedule 1.
Specification	any specification of the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
SAIF	Sharjah Airport Free Zone in the UAE.
Schedule	the schedules attached to these Conditions.
Supplier	Lomas ME (FZE) registered with the Sharjah Airport Free Zone in the UAE with license number 17792 and a registered address at 250 M2 Warehouse Q3-107, PO. Box 121499
UAE	United Arab Emirates.
Warranty Period	has the meaning specified in clause 5.1.

1.2    In this Agreement, unless the context otherwise requires:

1.2.1        each gender includes the other;

1.2.2        the singular includes the plural and vice versa;

1.2.3        any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

• references to these Conditions shall include its appendices;
• references to legislation include any modification or re-enactment thereof before the date of these Conditions;
• references to ‘law’ include any legislation, constitution, decree, or other legislative measure;
• references to time shall mean UAE time, unless otherwise stated.
• references to writing or written includes emails.

• If any provisions in the Schedules conflict with any of the other provisions of these Conditions that are not contained in the Schedules, the provisions of these Conditions that are not contained in the Schedules shall take precedence.

2. THE TERMS AND CONDITIONS

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

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

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

2.4               The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

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

2.6               A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.

3. GOODS

• The Goods are those described in the Specification.

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

4. DELIVERY

4.1               The Supplier shall ensure that:

• each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, if and where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
• if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact should be clearly stated on the same delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.

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

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

4.4                Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods, which may be caused by (for illustration purposes only):

4.4.1       a Force Majeure Event;

4.4.2       the Customer’s failure to provide the Supplier with adequate delivery instructions;

• the Customer’s failure to provide the Supplier with any other instructions that are relevant to and may affect the supply of the Goods;
• fault of any third party including but not limited to courier company and customs; and
• an issue with the Delivery Location.

4.5                If the Supplier fails to deliver the Goods at all, its liability shall be strictly limited to the costs and expenses incurred by the Customer which have a close consequential link with obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.

4.6                If the Customer fails to accept delivery of the Goods within three (3) Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:

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

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

4.7              If ten (10) Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery and the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

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

5. QUALITY

5.1               Subject to clause 5.3 below, the Supplier warrants that on delivery, and for a period of twelve (12)months from the date of delivery (“Warranty Period“), the Goods shall:

5.1.1        conform in all material respects with their description and any applicable Specification; and

5.1.2        be free from material defects in design,material and workmanship.

5.2               Subject to clause 5.3 below,the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:

5.2.1        the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty setoutinclause5.1;

5.2.2        the Supplier is given a reasonable opportunity of examining such Goods; and

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

• The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause1, unless the material defect is latent, and such warranty shall expressly exclude, any of the following non-exhaustive set of events:

5.3.1        the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2.1;

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

5.3.3        the defect arises as a result of the Supplier not following any drawing, design or Specification supplied by the Customer;

5.3.4        the Customer alters or repairs such Goods without the written consent of the Supplier;

5.3.5        the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; or

5.3.6        the Goods differ from their description as a result of changes made to ensure they comply with the applicable laws.

5.4            These Conditions shall apply to Goods originally supplied by the Supplier and repaired or replaced under the Warranty provisions.

6. TITLE AND RISK

6.1           The risk in the Goods shall pass to the Customer at the point when the carrier takes possession of the goods.

6.2            The ownership of the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case ownership of the Goods shall pass at the time of payment of all such sums; and

6.3            Until ownership of theGoods has passed to the Customer, the Customer shall:

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

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

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

6.3.4       notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.1;and

6.3.5       give the Supplier such information relating to the Goods as the Supplier may require from time totime.

7. PRICE AND PAYMENT

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

7.2           The price of the Goods excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

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

7.4            The Customer shall pay the invoice in full and in cleared funds within thirty (30) days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.Time for payment is of the essence.

7.5            If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7.6            The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

8. TERMINATION

8.1            Without limiting its other rights or remedies, the Supplier may terminate these Conditions with immediate effect by giving written notice to the Customer if:

8.1.1        the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fifteen (15) days of that party being notified in writing to do so;

8.1.2        the Customer 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, if thestep or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

8.1.3       the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

• the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in

• Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under these Conditions or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.1.1 to clause 8.1.4 above, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for
• Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment agreed between the Supplier and the Customer.
• On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and
• Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of
• Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and

9. LIMITATION OFLIABILITY
   • Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
     • death or persona linjury caused by its negligence ,or the negligence of its employees, agents or subcontractors (as applicable); or
     • fraud or fraudulent
   • Subject to clause 1 above:
     • the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract ,tort (including negligence),breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract and these Conditions; and

9.2.2        the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the full price of the Goods.

10. FORCE MAJURE

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for four(4)weeks, the party not affected may terminate this Contract by giving fourteen (14) Business Days written notice to the affected party.

11. GENERAL

11.1         Assignment and otherdealings

11.1.1      The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

11.1.2      The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

11.2         Variation

11.2.1      The Supplier is entitled to amend these conditions as and when it believes is necessary by providing the Customer with ten (10) Business Days written notice

11.2.2    No variation of these Conditions shall be effective unless it is in writing and signed by the parties (or their authorized representatives).

11.3         Waiver

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

11.3.2      No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

11.4         Severance

If any provision or part-provision of these Conditions 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 or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.

• Notices

11.5.1      Any notice or other communication given to a party under or in connection with these Conditions shall be in writing, addressed to that party at its registered office (if the Customer 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, sent by post or other, commercial courier, or email.

11.5.2      A notice or other communication shall be deemed to have been received:

11.5.2.1          if delivered personally, when left at the addresses provided under clause 11.5.3 below;

11.5.2.2          if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;

11.5.2.3          if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or,

11.5.2.3          if sent by email, one Business Dayaftertransmission.

11.5.3     A notice or other communication delivered personally shall be sent to the following registered addresses:

11.5.3.1          Customer

Address:[INSERT ADDRESS]

11.5.3.2          Supplier

Address: Sharjah Airport Free Zone at 250 M2 Warehouse Q3-107, PO. Box 121499

11.5.4      The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

11.6         Governing law and Jurisdiction

11.6.1      Any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Conditions or its subject matter or formation, shall be governed by and construed in accordance with UAE laws.

11.6.2      Each party irrevocably agrees that the Sharjah Courts shall have exclusive jurisdiction to settle any dispute or claim (including non-­ contractual disputes or claims) arising out of or in connection with these Conditions or its subjec tmatter or formation.