GENERAL TERMS AND CONDITIONS OF PURCHASE
DEFINITIONS AND INTERPRETATION
In these terms and conditions (“these Terms”) the following have the meanings set out below:
“Charges” is defined in clause 8.1.
“Company” means TOBACCO PRODUCTS INTERNATIONAL FZ-LLC (A company incorporated in the RAK Economic Zone, Ras Al Khaimah, UAE under licence number RAKIA16FZI06114290 and with its registered address at F6 Street, RAKIA Free Zone, Al Jazeera Al Hamra, Ras Al Khaimah, United Arab Emirates) (including its divisions, subsidiaries, affiliates and trading partners and the divisions, subsidiaries, affiliates and trading partners of its holding company);
“Contract” is defined in clause 2.1;
“Deducted Amount” is defined in clause 11.1.1;
“Deliverables” means the Goods and/or Services identified in the Purchase Order;
“Delivery Location” means the place identified in the Purchase Order in relation to the provision of the Deliverables;
“Goods” means all the goods, materials, equipment and parts provided by the Supplier to the Company as detailed in the Purchase Order;
“Intellectual Property Rights” includes any copyright, design rights, patents, inventions, logos, business names, service marks and trademarks, internet domain names, rights in databases, data, source codes, reports, drawings, specifications, know how, business methods and trade secrets, applications for registration, and the right to apply for registration, for any of these rights and all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world;
“Laws” means all applicable laws, ordinances, writs, orders, regulations, by-laws, permits, judgments and orders of any competent court, governmental agency or municipal authority in the United Arab Emirates or such other jurisdiction the Deliverables are being delivered in;
“Material” means any material brought into existence as part of, or for the purpose of producing the Order, and includes but is not limited to documents, equipment, information or data stored by any means;
“Order” means an order for the supply of Deliverables in accordance with the Purchase Order;
“Party” means a party to the Contract;
in relation to the Supplier, any of its employees, Subcontractors (including Subcontractors’ Personnel), agents and representatives involved either directly or indirectly in the performance of the Order;
in relation to the Company, any of its past or present officers, employees, agents or representatives; and
in relation to a Subcontractor, any of its employees, agents or representatives involved either directly or indirectly in the performance of the Order.
“Purchase Order” means individual purchase orders as may be issued by the Company to the Supplier in respect of the Order which shall be subject to the Contract;
“Services” means the work identified in the Purchase Order to be performed by the Supplier in accordance with the Contract;
“Site” means the Company’s premises identified in the Purchase Order;
“Subcontractor” means any person engaged by the Supplier in accordance with clause 18 to perform all or any part of the Order on behalf of the Supplier;
“Supplier Default Notice” is defined in clause 16.2;
“Supplier” means the Party (as identified in the Purchase Order) responsible for providing the Order;
“Value Added Tax” means any value added tax calculated in accordance with the VAT Act; and
“Value Added Tax Act or VAT Act” means the Federal Decree-Law No. (8) of 2017 on Value Added Tax (as amended), including any similar tax which may be imposed in place thereof from time to time.
In these Terms, unless the context otherwise requires:
if any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party, notwithstanding that it is only in the interpretation clause, effect shall be given to it as if it were a substantive provision in the body of these Terms;
in these Terms a Party includes a reference to that Party’s successors in title and assigns allowed at law;
any reference in these Terms to:
“business hours” shall be construed as being the hours between 07h30 and 17h00 on any business day. Any reference to time shall be based upon United Arab Emirates Standard Time;
“days” shall be construed as calendar days unless qualified by the word “business“, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the United Arab Emirates from time to time;
“law” means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law;
“person” means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality; and
“writing” means legible writing and in English and excludes any form of electronic communication.
the words “include” and “including” mean “include without limitation” and “including without limitation“. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;
the words “shall” and “will” and “must” used in the context of any obligation or restriction imposed on a party have the same meaning;
words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout these Terms;
unless otherwise provided, defined terms appearing in these Terms in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning;
a reference to any statutory enactment shall be construed as a reference to that enactment as at the effective date of these Terms and as amended or substituted from time to time;
unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day;
if the due date for performance of any obligation in terms of these Terms is a day which is not a business day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately succeeding business day;
where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;
the rule of construction that these Terms shall be interpreted against the Party responsible for the drafting of these Terms, shall not apply;
the expiration or termination of these Terms shall not affect such of the provisions of these Terms as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
no provision of these Terms shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a party to these Terms;
any reference in these Terms to “this agreement” or any other agreement or document shall be construed as a reference to these Terms or, as the case may be, such other agreement or document, as amended, varied, novated or supplemented from time to time; and
in these Terms the words “clause” or “clauses” and “annexure” or “annexures” and “schedule” or “schedules” refer to clauses and annexures or schedules to these Terms.
EVIDENCE OF CONTRACT AND PRECEDENCE OF DOCUMENTS
The Contract consists of the following documents:
the Purchase Order;
these Terms; and
any express written agreement from the Company which is attached to, or incorporated by reference in, the Purchase Order or these Terms.
THE COMPANY IS NOT CONTRACTUALLY BOUND UNTIL A FORMAL PURCHASE ORDER IS PLACED BY THE COMPANY AND THEN ONLY TO THE EXTENT OF THE ISSUES SPECIFICALLY COVERED BY THAT PURCHASE ORDER.
If any of these Terms of the Contract conflict with or contradict each other, those terms will over-ride each other in the following order of priority:
any express written agreement from the Company;
the Purchase Order; and then
The Contract contains the entire agreement between the Company and the Supplier with respect to its subject matter and supersedes all prior communications and negotiations between the Company and the Supplier in this regard, unless those communications expressly form part of the Contract.
No terms or conditions submitted by either Party that are in addition to, different from or inconsistent with those contained herein or in the Purchase Order, including, without limitation, the Supplier’s printed terms and conditions, and any terms and conditions contained in any Supplier’s quotation, invoice, purchase order acknowledgment, confirmation, acceptance, bill of lading or other instrument, shall be binding upon either Party unless specifically and expressly agreed to in a writing signed by duly authorised representatives of both Parties.
THE COMPANY ONLY PURCHASES DELIVERABLES ON THESE TERMS.
IF THE SUPPLIER ACCEPTS THE COMPANY’S PURCHASE ORDER IT WILL BE ON THESE TERMS AND NO OTHER STANDARD TERMS.
The Purchase Order number stated in the Purchase Order shall be indicated clearly on all documentation and packaging.
All Purchase Orders placed on the Supplier for the Deliverables shall be on an official printed purchase order of the Company (to be send by EDI or e-mail).
The performance of any part of the Contract will be deemed to be acceptance of the conditions stated herein, regardless of any inconsistency in the Supplier’s own small print.
If the Supplier wishes to reject the Company’s Purchase Order and make a counter-offer, the Supplier must reply to the Company’s Purchase Order in words explicitly and clearly indicating rejection.
EQUALLY, IF THE SUPPLIER MAKES A COUNTER-OFFER WHICH IS NOT CLEARLY LABELLED AS SUCH OR AS A REJECTION OF THE COMPANY’S PURCHASE ORDER, NO SUBSEQUENT BEHAVIOUR OF THE COMPANY, IN ACCEPTING THE ORDER, CAN BE TAKEN TO IMPLY ANY ACCEPTANCE BY THE COMPANY OF THAT COUNTER-OFFER.
THESE TERMS CAN ONLY BE CHANGED, OR OTHER TERMS AGREED, IN WRITTEN CORRESPONDENCE SIGNED BY A DIRECTOR OR OTHER SENIOR OFFICER OF THE COMPANY. NO SUBSEQUENT BEHAVIOUR OF THE COMPANY, IN ACCEPTING THESE TERMS FROM THE CLIENT WITH PROPOSED AMENDMENTS, CAN BE TAKEN TO IMPLY ANY ACCEPTANCE BY THE COMPANY OF THOSE PROPOSED AMENDMENTS.
THESE TERMS ARE AVAILABLE FROM THE COMPANY ON REQUEST AND ARE POSTED ON THE COMPANY’S WEBSITE.
PERFORMANCE BY SUPPLIER
The Supplier must deliver the Order in accordance with these Terms of the Contract and in consideration of the payment of the Charges by the Company.
WARRANTIES AND LIABILITY
The Supplier warrants, represents and undertakes on an ongoing basis that:
the quantity and quality for the Deliverables will be those set out in the Purchase Order and in accordance with the Company’s specifications. The Deliverables will be of the highest standard reasonably to be expected in the market for that kind of Deliverables;
any Goods will be new and free from defects in materials and workmanship;
any Deliverables will comply with all statutory requirements and regulations, and with all normally applicable quality standards, relating to their sale or supply;
all claims made by the Supplier about any Deliverables, and all apparently serious claims in the Supplier’s advertising and promotional material, are correct and can be relied upon;
any Services will be performed by appropriately qualified and trained Personnel; and
neither the sale and supply of any Deliverable, nor its proper use by the Company for an intended purpose, will breach any property rights in or about that Deliverable, including intellectual property rights, of any other person.
All warranties, conditions and other terms implied by statute or common law in the Company’s favour will apply to any Deliverables purchased from the Supplier.
THE SUPPLIER WILL INDEMNIFY AND KEEP INDEMNIFIED THE COMPANY IMMEDIATELY UPON THE COMPANY’S WRITTEN DEMAND AGAINST ANY COST, CLAIM, EXPENSE OR LIABILITY ARISING FROM ANY RISK FOR WHICH THE SUPPLIER IS RESPONSIBLE UNDER THE CONTRACT.
If the Supplier fails to comply with any obligation under the Contract, the Company will be entitled, at its discretion, to reject any Deliverable and the Supplier will not be entitled to receive payment for that Deliverable.
If any Deliverables were bought or obtained by the Supplier from a third party then any benefits or indemnities that the Supplier holds from that other party, in respect of those items, will be held on trust for the Company.
To the extent permitted by Laws and for the benefit of the Company, the Supplier consents, and must use its best endeavours to procure that each author of Material consents in writing, to the use by the Company of Material, even if the use may otherwise be an infringement of their Intellectual Property Rights.
The Supplier will insure itself, and keep insured until the Order is delivered, against all normal insurance risks relevant to the Order, on terms and for amounts consistent with normal business prudence.
The Supplier will maintain relevant industry qualifications, permits and licences.
The Supplier will provide copies of such qualifications, permits and licences to the Company upon request.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE CONTRACT, THE TOTAL AGGREGATE LIABILITY OF THE COMPANY, IN RESPECT OF A CLAIM OR CLAIMS ARISING IN TERMS OF THE CONTRACT (WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE HOWSOEVER) WILL BE LIMITED TO THE TOTAL CHARGES ALREADY PAID TO THE SUPPLIER IN TERMS OF THE PURCHASE ORDER OR PURCHASE ORDERS IN QUESTION THAT GAVE RISE TO THE CLAIM OR CLAIMS.
The fees and charges (“Charges”) means the aggregate amount payable by the Company to the Supplier in relation to the Order.
The Charges will be as specified in the Company’s Purchase Order and, unless otherwise stated, will be:
fixed and invariable and not subject to adjustment unless otherwise stated in the Purchase Order;
exclusive of any applicable Value Added Tax in accordance with the VAT Act (which will be payable by the Company subject to the receipt of a valid tax invoice);
inclusive of all expenses incurred by the Supplier in relation to the provision of the Order, including, without limitation, travel expenses and subsistence expenses, and of any duties or levies other than Value Added Tax; and
payable in US$.
The Company will be entitled to any discount for prompt payment, bulk purchase or the like normally granted by the Supplier in comparable circumstances.
If the Company is reliant on the Supplier for any supplies of maintenance, training, spare parts, consumables or other goods, rights or services, to benefit fully from the Goods (“Follow-on Deliverables”), then the Supplier will provide those Follow-on Deliverables or procure them to be provided, for at least 12 (twelve) months following supply, at fair and reasonable prices.
VALUE ADDED TAX
The Parties agree that:
Value Added Tax is payable on certain supplies of Goods and/or Services;
all charges and amounts payable by one Party to another under the Contract are stated exclusive of Value Added Tax; and
for each taxable supply under or in connection with the Contract:
the Supplier will be entitled to charge the Company for any Value Added Tax payable by the Supplier in respect of the taxable Order;
the Company must pay to the Supplier the amount of the Value Added Tax at the same time as the relevant charge applicable to the Order becomes payable under the Contract; and
the Supplier must provide a valid tax invoice to the Company in respect of the taxable Order.
The Company may:
deduct from any moneys due or becoming due to the Supplier pursuant to clause 10 the following amounts (“Deducted Amount”):
all debts and moneys due from the Supplier to the Company;
all liabilities which the Company may have paid, suffered or incurred and which the Supplier is liable to bear, pay or reimburse to the Company; and
the cost of remedying any defective or damaged Goods; or
without prejudice to the Company’s rights pursuant to any other provision of the Contract, if the Supplier fails to perform any of its obligations under the Contract, without notice withhold payment of all or part of any amounts payable to the Supplier under the Contract, until the matter has been remedied.
The Company must notify the Supplier of the details of any amounts withheld or deducted pursuant to clause 11.1.
NO MINIMUM PURCHASE OR EXCLUSIVITY
Nothing in the Contract obliges the Company to request or acquire any minimum level of orders/supply from the Supplier.
The Contract is not evidence of, nor does it create, an exclusive relationship between the Company and the Supplier in respect of any orders/supply.
HEALTH, SAFETY AND ENVIRONMENT
This clause 13 applies to the extent the Supplier or any of its Personnel are required to be on, or near the vicinity of, the Site for the purposes of the Order.
The Supplier agrees to comply, and to ensure that its Personnel comply, with:
the Company’s health and safety policies and procedures in place from time to time (copies of which will be provided to the Supplier upon written request); and
all relevant health, safety and environmental legislation and Laws in force from time to time.
Without limiting any other provision of the Contract, the Supplier must familiarise itself with the work area and any potential hazards prior to commencing work.
The Supplier will observe the principles of ecologically sustainable development where its activities and operations affect the environment.
The Supplier will ensure that it does not pollute, contaminate or damage the environment and keep the Company’s premises clean and tidy and free of refuse during the performance of the Services.
Nothing in this clause 13 limits or removes any obligation or duty imposed on the Supplier or any of its Personnel, whether under the Contract or otherwise, to secure or have regard to the health and safety of any of its Personnel.
Notwithstanding any other term of the Contract, in the event of any breach of this clause 13, the Company may:
require the Supplier, Supplier’s Personnel and/or any other person to leave the Site immediately; and
require the Supplier and/or any of its Personnel to remove any material or substance from the Site, and the Supplier must, at its own cost, ensure such request is immediately complied with and take all possible action to ensure the protection and safety of all works, personnel and the environment.
The Company may suspend performance of, or cancel, or suspend and then at any subsequent time cancel, the Contract without any liability to the Supplier, if:
the Supplier passes a resolution for its winding-up or a court of competent jurisdiction makes an order for the Supplier to be wound up or dissolved or the Supplier is otherwise dissolved;
an administrator is appointed or an administration order is made in relation to the Supplier or a receiver or an administrative receiver is appointed over, or an encumbrancer takes possession of or sells the whole or part of the Supplier’s undertaking, assets, rights or revenue;
the Supplier is unable to pay its debts or is deemed unable to pay its debts in the reasonable discretion of the Company;
the Supplier enters into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them or takes steps to obtain a moratorium or makes an application to a court of competent jurisdiction for protection from its creditors; or
adopts a resolution to voluntarily begin with business rescue proceedings or is placed under business rescue proceedings by a competent court.
Any right of cancellation or suspension under this section is additional to any rights available to the Company under the law of any relevant jurisdiction.
TERMINATION FOR CONVENIENCE
If Goods have been offered to the Company by the Supplier as is, or if they are, standard or stock items, the Company can, by notice to the Supplier, at any time up to delivery cancel the commitment to buy the Goods.
Any other commitment to receive and pay for the Goods may be cancelled by the Company as follows:
the Company will be bound to reimburse the Supplier for all irrecoverable costs incurred, or unavoidably committed, by the Supplier up to the point of cancellation. By “costs” is meant for this purpose the direct costs to the Supplier, to an aggregate amount not exceeding 50% (fifty percent) of the purchase price for the cancelled commitment.
The Company will be entitled to the benefit of the part-finished Goods in question.
In addition to any other rights it has under the Contract, the Company, acting in good faith, may at any time terminate the Contract or reduce the scope or quantity of the Services by notifying the Supplier in writing. If the Company issues such a notice, the Supplier must stop or reduce work in accordance with the notice, comply with any directions given by the Company and mitigate all loss, costs (including the costs of its compliance with any directions) and expenses in connection with the termination or reduction in scope.
The Company shall only pay to the Supplier the proportion of the Charges payable in respect of the work done and /or Services performed by the Supplier up to the date of termination, to a maximum of 50% (fifty percent) of the Charges less any payments already made, and any reasonable costs incurred by the Supplier that are directly attributable to the termination, if the Supplier substantiates these amounts to the satisfaction of the Company.
If the Supplier breaches any term of the Contract, the Company may serve a notice of default (“Supplier Default Notice”) on the Supplier containing the information specified in clause 16.2 below.
A Supplier Default Notice must:
either require that the breach be remedied within a specified period of not less than 14 (fourteen) days after service of the Supplier Default Notice on the Supplier or state that the breach is incapable of remedy; and
state that if the breach is not remedied within the period specified in the Supplier Default Notice or is incapable of remedy, then the Company may by further notice to the Supplier do one or more of the following:
elect wholly or partly to suspend payment under the Contract until the breach has been remedied by the Supplier;
take such action as the Company deems necessary to cure the breach (the cost of such action so taken by the Company being recoverable from the Supplier as a debt due to the Company by the Supplier); or
terminate the Contract or any part of it with effect from a specified date.
Notwithstanding these Terms of any Supplier Default Notice, no action taken by the Company under this clause 16 will prejudice the existence of any of its rights and remedies under the Contract which the Company may have as a result of the relevant breach.
The Supplier may not assign any of its rights or obligations under the Contract without the prior written consent of the Company, which consent the Company may grant or withhold in its absolute discretion.
The Supplier must not subcontract the whole or part of any work in relation to the Order without consent in writing by the Company, which consent the Company may grant or withhold in its absolute discretion.
The Supplier will be liable to the Company for the acts and omissions of any Subcontractors as if those were the acts or omissions of the Supplier. The Supplier remains fully responsible for the performance of these Terms of the Contract, notwithstanding any subcontract or consent on the Company’s part to a subcontract.
If any provision of the Contract is held unenforceable, then such provision will be modified to reflect the Parties’ intention. All remaining provisions of the Contract shall remain in full force and effect.
Any waiver by the Company of any rights under the Contract will not constitute a general waiver of those or other rights.
Any written notice under these Terms will be deemed to have been sufficiently served if such notice was hand delivered to the relevant address stated on the Purchase Order, or if sent by fax then on receipt by the sender of a transmission control report from the despatching machine indicating that the transmission has been made without error, or if sent by e-mail (but in this case only on evidence of successful transmission and only if the parties have regularly communicated on contract matters by that e-mail route).
ANTI-CORRUPTION AND BRIBERY
Both Parties represent and affirm that (i) they will comply with all applicable Laws relating to anti-bribery and anti-corruption and (ii) they will not promise, offer, give or receive bribes or corrupt actions in relation to the procurement or performance of the Contract. For the purposes of this clause, ‘bribes or corrupt actions’ mean any payment, gift or gratuity, whether in cash or kind, intended to obtain or retain an advantage, or any other action deemed to be corrupt under the applicable Laws.
COMPLIANCE WITH LAWS
The Supplier must ensure that it and all Subcontractors comply with all relevant Laws in connection with the Order and all its obligations under the laws of the United Arab Emirates.
This Agreement will in all respects be governed by and construed under the laws of Ras Al Khaimah. The Parties hereby consent and submit to the exclusive jurisdiction of the Courts of Ras Al Khaimah in any dispute arising from or in connection with this Agreement.