Terms & Conditions
1. Definitions and Interpretation
In these Conditions, unless the context otherwise requires, the provisions in this Clause 1 (Definitions and Interpretation) apply:
1.1 Definitions
Applicable Currency has the meaning given to that term in Clause 7.5.
Business Day means any day (other than Friday or Saturday) on which banks are open for general business in the United Arab Emirates. Conditions means these terms and conditions as amended from time to time in accordance with Clause 17.10.
Contract means the contract between the Supplier and the Customer for the supply of Goods in accordance with these Conditions.
Confidential Information means all information, in whatever form (including information given orally or in writing),
(a) relating to the terms and conditions or subject matter of the Contract;
(b) relating to the parties, including business transactions, customers, suppliers, commercial or financial arrangements (including operations, product information, Intellectual Property Rights, the marketing of goods and services or future projects) of the parties, of which a party becomes aware in its capacity as a party to the Contract from any other party which is either marked as “confidential” or by its nature is intended to be for the knowledge of the other party or that would be regarded as confidential by a reasonable business person,
but does not include information which:
(a) is public or which is made public by or with the consent of the parties;
(b) is identified in writing at the time of delivery as non-confidential by a party or any of its advisers
(c) is known by a party before the date the information is disclosed to it in accordance with the Contract or is lawfully obtained by that party after that date from a source which, to the party’s knowledge, is unconnected with the party and which has not been obtained in breach of and is not subject to any obligation of confidentiality.
Contract Price means the price for each type of Goods to be supplied, as set out in the Order.
Customer means the person or firm who purchases Goods from the Supplier.
Delivery means the delivery of the Goods (as specified in an Order) in accordance with Clause 4.
Delivery Costs means the Supplier’s charges for delivery of the Goods to the Delivery Location, plus any other costs of insurance or carriage of, and import duties payable, on the Goods.
Delivery Date means the date notified by the Supplier to the Customer. Pursuant to Clause 4.3.
Delivery Location means the location for the delivery of the Goods specified in the Order in accordance with Clause 2.2, or such other location as may be agreed between the parties.
Force Majeure Event means the occurrence of any of the following events or circumstances which are beyond the reasonable control of a party and which could not have been prevented by the exercise of reasonable care and skill of a party:
(a) any act of state or exercise of sovereign, judicial or executive prerogative by any government or public authority, including expropriation, nationalisation or compulsory acquisition or acts claimed to be justified by the executive;
(b) any act of God;
(c) any natural disaster or unusual or extreme weather conditions, including earthquake, lightning, flooding, fire, hurricane, typhoon, tidal wave, storm, volcanic eruption, chemical or radioactive contamination; and
(d) any act of war, armed hostilities, invasion, armed conflict, revolution, civil commotion, terrorism or the threat of terrorism.
Goods means the goods (or any part of them) specified in the Order.
Initial Payment has the meaning given to that term in Clause 7.2.
Insolvency Event means where a party becomes insolvent or fails generally to pay its debts as they become due and payable or has a general assignment for the benefit of its creditors, or suffers any similar arrangement with its creditors or the entry of a judgment of insolvency against it or the filing of a petition for relief under applicable bankruptcy, insolvency, or similar debtor relief laws or any other similar proceedings in any relevant jurisdiction affecting that party.
Intellectual Property Rights means rights, title and interest in and to:
(a) any patents, trade marks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests, whether registered or unregistered; and
(b) the benefit of all applications and rights to use such assets, and all other similar rights which may subsist in any part of the world now or in the future, and including any related licences and sub-licences of the same granted by it or to it.
Manufacturer means the relevant manufacturer of, and owner of the Intellectual Property Rights in, the Goods.
Online Order means an order for Goods made on the Supplier’s website in accordance with Clause 2.
Order means an order for Goods submitted by the Customer in accordance with Clause 2, including Online Orders.
Specifications means the specifications for the Goods published by the manufacturer of the Goods and made available on either the manufacturer’s website, product packaging or promotional materials.
Supplier means FCLT-E Products Trading FZC, a limited liability company incorporated in the Hamriyah Freezone, with commercial licence number 18825.
Territory means the country of the Delivery Location and any other country agreed in writing between the Customer and the Supplier.
1.2 Interpretation
(a) a reference to:
(i) words denoting any gender includes any other gender;
(ii) a person includes any individual, firm, company, corporation, association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
(iii) AED are references to the lawful currency of the United Arab Emirates; USD are references to the lawful currency of the United States of America; SAR are references to the lawful currency of Saudi Arabia; OMR are references to the lawful currency of Oman; KD are references to the lawful currency of Kuwait; and BD are references to the lawful currency of Bahrain;
(iv) Clauses are to clauses of these Conditions;
(v) the Contract or other documents includes that Contract or document as amended, varied, novated, supplemented or replaced from time to time;
(vi) “include”, “including”, “in particular” and words of similar effect indicate examples only and shall not be deemed to limit the general effect of any preceding words;
(vii) a “party” or “parties” means the Customer or the Supplier, or both of them (as the case may be) and includes their respective successors in title, permitted assigns and permitted transferees;
(b) the headings in these conditions are for ease of reference only;
(c) words in the singular include the plural and in the plural include the singular;
(d) capitalised terms used in these Conditions have the meanings set out in Clause 1.1; and
(e) no rule of contract interpretation applies to the disadvantage of one party merely because that party was responsible for the preparation of the Contract or these Conditions or the inclusion of the provision in the Contract or these Conditions
2. Basis of Contract
2.1 An Order constitutes an offer by the Customer to purchase Goods in accordance with these Conditions.
2.2 Each Order (other than Online Orders) shall:
(a) be given in writing;
(b) specify the Applicable Currency;
(c) specify the type and quantity of Goods ordered; and
(d) specify the Delivery Location in the Territory to which the Goods are to be delivered.
2.3 Online Orders, shall specify the Applicable Currency, type and quantity of Good ordered and Delivery Location.
2.4 Each Order shall be deemed to be a separate offer by the Customer to purchase Goods on the terms of these Conditions, which the Supplier shall be free to accept or decline at its absolute discretion.
2.5 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
2.6 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 law, trade custom, practice or course of dealing.
2.7 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.
2.8 At any time within 48 hours of submitting an Order and prior to dispatch of the Goods, the Customer may amend or cancel an Order by written notice to the Supplier. If the Customer amends or cancels an Order, its liability to the Supplier shall be limited to payment of all costs reasonably incurred by the Supplier in fulfilling the Order up until the date of receipt of the notice of amendment or cancellation, except that where the amendment or cancellation results from the Supplier’s failure to comply with its obligations under the Contract the Customer shall have no liability to the Supplier.
2.9 Goods supplied to the Customer are for its own use and consumption only, and shall not be resold by the Customer to any third party, whether within or outside the Territory.
3. Conformity and Quality of the Goods and Customer Training
3.1 The Supplier warrants that the Goods supplied pursuant to the Contract shall:
(a) are free of any material defect;
(b) conform to the Specifications; and
(c) comply with applicable laws and regulations in the Territory.
3.2 All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) other than the warranties set out in Clause 3.1, are excluded from these Conditions to the fullest extent permitted by law. The Supplier’s only liability to the Customer if the Goods fail to comply with the warranties is as set out in Clause 3.1.
3.3 The Supplier shall, at its own cost, make available to the Customer one or both of the following (at the sole discretion of the Supplier):
(a) pre-recorded videos by the Manufacturer, its US distributor of the Goods or the Supplier; or
(b) competent employees of the Supplier at the premises of the Customer, at a time convenient to the Supplier and the Customer,
in each case to instruct the Customer in the use and application of the Goods.
4. Delivery
4.1 The Supplier shall deliver and unload the Goods to the Delivery Location.
4.2 The Supplier shall be under no obligation to deliver the Goods unless and until payment of the Initial Payment for the Goods specified in the Order is received by the Supplier in full and the Supplier notifies the Customer in writing that the Initial Payment has been received.
4.3 Following acceptance of an Order and receipt of the Initial Payment in full the Supplier shall notify the Customer in writing of the proposed Delivery Date by which the Goods ordered are to be delivered.
4.4 All Delivery Dates are approximate only, and the date and time of delivery are not of the essence.
4.5 Delivery of an Order shall be complete on its arrival and unloading at the Delivery Location.
4.6 The Supplier shall obtain and maintain in force all licences, permissions, authorisations, consents and permits needed to supply the Goods in accordance with the terms of the Contract
4.7 The Supplier shall be responsible, at its cost, for packing the Goods ready for delivery.
4.8 The Supplier shall be responsible for arranging for the transportation of the Goods to the Delivery Location.
4.9 The Customer shall be responsible for all Delivery Costs and such Delivery Costs shall be included in the Supplier’s invoice in addition to the Contract Prices for the Goods specified in the Order.
4.10 Delays in the delivery of an Order shall not entitle the Customer to:
(a) the Order shall nonetheless be deemed to have been delivered at 9.00am on the date of attempted delivery; and
(b) the Supplier may store the Order until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.12 Each delivery of Goods shall be accompanied by a delivery note from the Supplier showing the Order number, the date of the Order, the type and quantity of Goods included in the Order.
4.13 The parties agree that if, in respect of an Order, the Supplier delivers up to and including 20% more or less than the quantity of Goods ordered, the Customer shall not be entitled to reject the Order, but:
(a) where excess Goods are delivered the Supplier will, if requested by the Customer, remove the excess Goods at the sole cost of the Supplier; or
(b) otherwise, a pro rata adjustment shall be made to the Order invoice.
5. Acceptance
5.1 The Customer may reject any Goods delivered to it that do not comply with Clause 3.1, or, subject always to Clause 4.13, if the quantity and type of Goods does not conform to the Order, provided that notice of rejection is given the Supplier:
(a) in the case of the quantity and type of Goods delivered failing to conform with the Order, at the time of attempted delivery; or
(b) otherwise within five Business Days of Delivery,
and only if none of the events in Clause 5.2 apply.
5.2 The Supplier shall not be liable for a Goods’ failure to comply with the warranty set out in Clause 3.1 in any of the following events:
(a) the Customer makes any further use of those Goods after giving notice in accordance with Clause 5.1;
(b) the defect arises because the Customer failed to follow the Supplier’s or the manufacturer’s oral or written instructions for the storage, application or use of the Goods;
(c) the Customer alters those Goods without the written consent of the Supplier;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.3 If the Customer rejects Goods under Clause 5.1 then, subject always to Clause 5.2, the Customer shall be entitled to require the Supplier to replace the rejected Goods.
5.4 Once the Supplier has complied with the Customer’s request, it shall have no further liability to the Customer for the rejected Goods’ failure to comply with Clause 3.1.
5.5 The terms of the Contract shall apply to any replacement Goods supplied by the Supplier.
6. Contract Prices
6.1 The Contract Prices are exclusive of amounts in respect of VAT. The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier any additional amounts in respect of VAT as are chargeable on a supply of Goods.
6.2 The Contract Prices inclusive of the costs of packaging, but exclusive of all other Delivery Costs, which shall be included as an additional charge in the Supplier’s invoice and paid by the Customer.
7. Payment
7.1 The Supplier shall submit its invoice to the Customer for each Order on or at any time after confirming its acceptance of the Order in accordance with Clause 2.2(a).
7.2 Unless otherwise agreed in writing between the parties, 100% of the invoiced amount shall be payable within 5 days of the date of the invoice payment of which shall be a condition of the acceptance of the Order and Delivery of the Goods with payment to be made to a bank account nominated in writing by the Supplier from time to time.
7.3 If the Customer reasonably disputes any amount claimed by the Supplier under an invoice, the Customer will notify the Supplier specifying the reasons for the dispute. Payment of the disputed portion will be withheld until settlement of the dispute. The Customer will pay the undisputed portion of the invoice.
7.4 All payments payable to the Supplier by the Customer under the Contract shall become immediately due and payable on termination of the Contract for any reason.
7.5 All amounts due under the Contract shall be paid in AED, USD, SAR, OMD, KD or BD (Applicable Currency).
8. Taxes
8.1 The Contract Price and any amounts payable under the Contract are exclusive of value added tax or any governmental taxes, duties, fees and levies.
8.2 If a payment due from the Supplier under the Contract is subject to tax (whether by way of direct assessment or withholding at its source), the Customer shall be entitled to receive from the Supplier such amounts as shall ensure that the net receipt, after tax, to the Customer in respect of the payment is the same as it would have been were the payment not subject to tax.
9. Title and Risk
9.1 Title in the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and all other amounts (including Delivery Costs) that are due to the Supplier from the Customer in relation to the relevant Order.
9.2 Risk in the Goods shall pass to the Customer on Delivery.
10. Compliance with Laws
10.1 In performing its obligations under the Contract, the Customer shall and shall procure that each member of its group comply with all applicable laws, statutes, regulations and codes from time to time in force.
11. Intellectual Property Right Claims
11.1 If any third party makes any claim against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the supply or use of the Goods (Claim), the Customer shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier;
(c) give the Supplier, the Manufacturer and their respective professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense to assess the Claim); and
(d) be deemed to have given the Supplier, or, in the Supplier’s sole discretion, the Manufacturer, sole authority to avoid, dispute, compromise or defend the Claim.
11.2 Nothing in this Clause 11 shall restrict or limit the Customer’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
12. Termination and Suspension
12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
(a) commits a material breach of any term of the Contract which breach is not capable of remedy or (if such breach is capable of remedy) fails to remedy the breach within a period of 30 days after being notified in writing to do so;
(b) fails to pay any undisputed amount due under the Contract (including the Initial Payment) on the due date for payment, and fails to remedy this default within 30 days of being notified of the same by the other party;
(c) is the subject of an Insolvency Event; or
(d) suspends or ceases, or indicates that it is about to suspend or cease, carrying on all or a substantial part of its business.
12.2 Without affecting any other right or remedy available to it, the Supplier may suspend delivery of the Goods, or any 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 the Contract on the due date for payment, including the Initial Payment, or the Customer becomes subject to any of the events listed in Clause 12.1(c) or Clause 12.1(d) or the Supplier reasonably believes that the Customer is about to become subject to any of them.
12.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving notice to the Customer if its right to distribute the Goods in the Territory or to the Customer is terminated.
12.4 Upon termination or expiry of the Contract for any reason:
(a) each party shall return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it or a member of its group in connection with the supply of the Goods under the Contract;
(b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) Clauses which expressly or by implication have effect after termination or expiry shall continue in full force and effect.
13. Limitation of Liability
13.1 This Clause 13 sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other for:
(a) any breach of the Contract however arising;
(b) any use made or resale of the Goods by the Customer, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
13.2 Nothing in the Contract shall limit or exclude the liability of either party for:
(a) death or personal injury resulting from negligence; or
(b) fraud or fraudulent misrepresentation.
13.3 Without prejudice to Clause 13.2 neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any: loss of profit; loss of goodwill; loss of business; loss of business opportunity; loss of anticipated saving; or special, indirect or consequential damage suffered by the other party, or any product liability that arises under or in connection with the Contract.
13.4 Without prejudice to Clause 13.2 or Clause 13.3, the Supplier’s total liability arising under or in connection with an Order made under the Contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the aggregate Contract Price of all Goods supplied in such Order.
14. Confidentiality
14.1 Each party agrees to keep all Confidential Information confidential and not to disclose it to anyone or to use it, except as permitted by Clauses 14 (Confidentiality) and 15 (Announcements), and to ensure that all Confidential Information is protected with security measures and a degree of care that it would apply to its own confidential information.
14.2 Any party may disclose or use Confidential Information if and to the extent that:
(a) it is necessary to enable that party to enter into, perform or enjoy the full benefit of the Contract;
(b) the other party has given prior written approval;
(c) it is required or requested to be disclosed by any court of a competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law;
(d) it is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
(e) it is made to any of its affiliates and any of their officers, directors, employees, professional advisers, auditors or partners, provided that any such person if informed in writing of its confidential nature; or
(f) it is made to a person to whom it assigns or transfer all or any of it rights and/or obligations under the Contract, provided that prior to such disclosure or use of such Confidential Information, the disclosing party shall promptly notify the other party of any proposed or required disclosure or use.
14.3 Each party agrees (to the extent permitted by law and regulation) to inform the other party upon becoming aware that Confidential Information has been disclosed in breach of this Clause 14 (Confidentiality).
14.4 The obligations in this Clause 14 (Confidentiality) are continuing and shall survive and remain binding on each party for a period of 60 months from the date of expiry or termination of the Contract.
14.5 On termination or expiry of the Contract, any party which has received Confidential Information shall promptly on demand by the party which provided the Confidential Information:
(a) return any written records (irrespective of the format) of Confidential Information in its possession and control (without keeping any copies) to the party which provided the information;
(b) destroy all analyses, notes or other documents prepared by it (or their officers, employees, agents or advisers) if they contain, reflect or derive from any such Confidential Information;
(c) delete any Confidential Information in its possession or control from any computer or other device, its IT network and hard disks or other storage means associated with any computer equipment owned or controlled by the relevant party; and
(d) on request supply a certificate signed by one of its directors confirming that the requirements of this Clause 14 (Confidentiality) have been fully complied with, except where any party which has received Confidential Information is required by law to retain such information, in which case, that party shall:
(e) notify the other party in writing of the requirement to retain Confidential Information, giving details of the documents and/or materials that it must retain; and
(f) retain only one copy that it may use for such purposes only and subject to the confidentiality obligations in this Clause 14 (Confidentiality).
15. Announcements
15.1 Subject to Clause 15.2, no party shall make, or permit any person to make, any announcement or other communication concerning the existence or provisions of the Contract without the prior written approval of the other parties (such consent not to be unreasonably withheld or delayed). The parties shall consult on the timing, contents and manner of release of any announcement or communication concerning the existence or provisions of the Contract.
15.2 Clause 15.1 shall not apply where a party is obliged to make any announcement or other communication concerning the existence or provisions of the Contract by law or any governmental or regulatory authority or the rules of any stock exchange on which the shares of any party are listed, but the party with an obligation to make an announcement or communication shall promptly notify the other parties and shall consult with the other parties to the extent reasonably practicable before complying with such obligation.
16. Force Majeure
16.1 The Supplier shall not be in breach of the Contract and shall not be liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event and if the period of delay or non-performance continues for more than 30 days, the Supplier may terminate the Contract by giving 14 days written notice to the Customer.
17. General
17.1 Further assurances: Each party shall, and shall use reasonable endeavours to procure that any third party shall, execute and perform all such documents, acts and things as the other party may reasonably require for the purpose of giving the full benefit of the Contract.
17.2 Notices: Any notice or other communication to be made under or in connection with the Contract (each, a Notice) shall be made in writing and in the English language. Any Notice will only be effective if delivered by hand, email, or courier.
17.3 When Notices become effective: Any notice to be made under or in connection with the Contract will only be effective on receipt and shall be deemed to have been received:
(a) at the time of delivery, if delivered by hand or courier;
(b) if sent by email, on the date a delivery receipt is received by the sender in respect of the notice or other communication, unless a return mail is received by the sender within that one hour period stating that the addressee’s email address is wrong or that the message cannot be delivered, provided that any notice received after 5pm on a Business Day or on any day that is not a Business Day shall be deemed to have been received on the next Business Day.
17.4 No assignment: Neither party may assign any of its rights, or transfer by novation any of its rights and obligations under, or grant any security over, hold on trust or otherwise transfer the benefit of the whole or any part of, the Contract.
17.5 Sub-contracting: The Supplier may sub-contract or delegate in whole or part the performance of any of its obligations under the Contract without the prior written consent of the Customer.
17.6 Counterparts: The Contract may be entered into in any number of counterparts, and this has the same effect as if the signatures were on a single copy of the Contract. Electronic signatures shall be valid and binding to the same extent as original signatures.
17.7 Waiver: No failure or delay by either party to exercise any right or remedy provided under the Contract or by law shall operate as a waiver of it nor shall it prevent or restrict the further exercise of it or any other right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict any other or further exercise of it, or any other right or remedy. Any waiver of a breach of the Contract shall not constitute a waiver of any subsequent breach.
17.8 No partnership or agency: Nothing in the Contract shall be deemed to constitute a partnership between the parties or constitute either party the agent of the other party.
17.9 No employer/employee relationship: Nothing in the Contract is intended to, or shall be deemed to, establish a relationship of employer and employee between the parties.
17.10 Variation: No variation or waiver of the Contract shall be effective unless in writing and signed by or on behalf of each of the parties.
17.11 Partial invalidity: If, at any time, any provision of the Contract is or becomes illegal, invalid or unenforceable under the law of any jurisdiction:
(a) the legality, validity or enforceability of the remaining provisions shall not be affected or impaired; and
(b) the provision shall apply with whatever deletion or modification is necessary so that the provision is legal valid, binding and enforceable and gives effect to the commercial intention of the parties; and
(c) to the extent it is not possible to delete or modify the provision under Clause 17.11(b), then that provision (or part of it) shall be deemed not to form part of the Contract.
17.12 Costs: Each party shall bear all costs incurred by it in connection with the preparation, negotiation and entry into of the Contract.
17.13 Whole agreement: The Contract contains the whole agreement between the parties relating to the subject matter of the Contract and supersedes any previous written or oral agreement between the parties in relation to such matters.
17.14 Non-reliance: Each party agrees and acknowledges that, in entering into the Contract,
(a) it is not relying on any representation, warranty or undertaking not expressly incorporated in it;
(b) it is sophisticated and knowledgeable in the matters contained in the Contract and has acted in their own interests; and
(c) it has been represented by its own legal counsel.