TERMS AND CONDITIONS FOR THE SALE OF GOODS BY ASHTON MULITPLEX ENTERPRISES
1. Definition & interpretation:
(1.1) Contract – means any contract between AME and the customer for the sale and purchase of goods, incorporating these conditions.
(1.2) Customer – means the person, firm or company purchasing the goods from AME.
(1.3) Goods – means any goods agreed in the contract to be supplied to the customer by AME (including any part or parts of them)
(1.4) AME – means Ashton Multiplex Enterprises LLC whose registered office is at Oud Metha, Dubai, UAE.
2. Basic Supply:
(2.1) Subject to any variation under condition 2.2 the contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the customer purports to apply under any purchase order, confirmation of order, specification or other document)
(2.2) These conditions apply to all AME sales and any variation to these conditions and any representations about the goods shall have no effect unless expressly agreed in writing by an authorized officer of AME. The customer acknowledges that it has not relied on, and shall have no right or remedy in respect of, any statement, promise, assurance, warranty or representation made or given by or on behalf of AME which is not set out in the contract or otherwise agreed in writing by an authorized officer of AME.
(2.3) Each order or acceptance of a quotation for goods by the customer from AME shall be deemed to be an offer by the customer to buy the goods subject to these conditions and which offer AME be free to accept or reject at its sole discretion.
(2.4) Any quotation is valid for a period of 30 calendar days (or as specified on the quotation) only from its date, provided that AME has not previously withdrawn it by notice in writing to the customer.
(2.5) The customer shall Check any acknowledgment of order by AME and any subsequent correspondence to ensure that the specifications for goods are as requested by the customer and the customer shall advice AME immediately in the event of any discrepancies.
(2.6) No order that has been accepted by AME, may be cancelled by the customer except at the sole discretion of AME and agreed in writing by an authorized officer of AME and on terms that the customer shall indemnify AME in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by AME as a result of cancellation.
3. Intellectual property:
(3.1) Any samples, drawings, descriptive matter, specifications and advertising issued by AME and any descriptions or illustrations contained in AME catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods described in them. They shall not form part of the contract and this is not a sale by sample.
(3.2) Any error or omission in any sales literature, quotation, order confirmation, invoice or other document issued by AME shall be subject to correction without liability on the part of AME.
(3.3) AME reserves the right to make any changes in the specification of the goods ordered which are required to conform with any applicable safety, quality or other statutory requirements.
(4.1) on request by the customer AME will provide a quotation in writing in AED unless otherwise stated.
(4.2) AME reserves the right at any time prior to deliver to the customer to increase the price of the goods to reflect any increases in cost due to factors beyond its control or any changes in delivery dates, quantities or specifications which is requested by the customer or due to fluctuations and alterations in currency exchange rates.
(5.1) The conditions at the destination will be that of hard road. AME reserves the right for its drivers and carriers to refuse to take their vehicles on to the destination if in the opinion of the driver or carrier the conditions at the destination are such as to constitute a danger to the vehicles, the goods or to any persons or property AME reserves the right to charge for additional transport costs caused by reasons beyond their control.
(5.2) in accordance with incoterms, where the customer is responsible for the loading and unloading of the goods, the customer shall provide adequate and appropriate equipment and manual labor at the destination for the loading and unloading of the goods and the customer shall indemnify AME against all claims whatever arising from such loading and unloading operations.
(5.3) any delivery date or period given by AME in the order confirmation are intended to be an estimate.
(5.4) subject to the other provisions of these conditions AME shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profit, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay entitle the customer to terminate or rescind the contract unless such delay exceeds 180 calendar days.
(5.5) if AME delivers to the customer a quantity of goods of more or less than the agreed order quantity, the customer shall not be entitled to object or reject the goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata contract rate. Any goods representing an over delivery and not paid for by the customer must be returned to Ashton Multiplex Enterprise. AME will pay for the cost of transporting any goods so returned.
(5.6) AME may deliver the goods by separate installments. Each separate installment shall be invoiced and paid for in accordance with the provisions of the contract.
(6.1) The quantity of any consignment of goods as recorded by AME on dispatch from AME (or its manufacturers) place of business shall be conclusive evidence of the quantity received by the customer on delivery unless the customer can provide conclusive evidence proving the contrary within three business days in writing to AME.
(6.2) AME shall not be liable for any non-delivery of goods (even if caused by AME negligence) unless the customer gives written notice to AME of the non-delivery within three business days of the date when the goods would in the ordinary course of events have been received.
(6.3) any liability of AME for non-delivery of the goods shall be limited to replacing the goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice for such goods.
7.Ownership & Risk:
(7.1) The goods are at the risk of the customer from the time of delivery in accordance with condition 5 or if the customer fails to take delivery of the goods, the time when delivery should have been rendered in such manner.
(7.2) legal and beneficial ownership in the goods shall not pass to the customer until AME has received payment in full in cash or cleared funds all sums due to it in respect of the goods and all other sums which are or become due to AME from the customer on any account including interest on any overdue amounts and all collection costs and expenses relating to such overdue sums.
(7.3) Until ownership of the goods has passed to the customer, the customer shall:
(7.3.1) store the goods (at no cost to AME) separately from all other goods of the customer or any third party in such a way that they remain readily identifiable as AME property.
(7.3.2) subject to condition 7.5, not destroy, deface or obscure any identifying mark or packaging on or relating to the goods.
(7.3.3) maintain the goods in satisfactory condition and keep them insured on AME behalf for their full price against all risks to the reasonable satisfaction of AME. On request the customer shall produce the policy of insurance to AME.
(7.4) if the goods or any part thereof are incorporated in or used as material for or in manufacturing other products before payment in full to AME ownership in the whole of such products shall vest in and remain with AME until such products have been sold and all AME rights hereunder in relation to the goods and/or the proceeds of sale thereof shall extend to such products. AME rights hereunder shall be in addition to any and all other rights it may have against the customer at law or in equity.
(7.5) The customers rights to possession of the goods shall terminate immediately if:
(7.5.1) the customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory)
(7.5.2) the customer suffers or allows any execution, whether legal or equitable, to be levied on hi/its property or obtained against him/it, or fails to observe or perform any of his/it obligations under the contract or any other contract between AME and the customer, or is unable to pay its debts.
(7.6) AME shall be entitled to recover payment for the goods notwithstanding that ownership of any of the goods has not passed from AME.
(7.7) the customer grants AME, its agents and employees an irrevocable license at any time to enter any premises where the goods are or may be stored in order to inspect them, or, where the customers rights to possession has terminated, to recover them.
(7.8) where AME is unable to determine whether any goods are the goods in respect of which the customers rights to possession has terminated, the customer in the order in which they were invoiced to the customer.
(8.1) AME shall invoice the customer for the price of the goods in accordance with condition 4. AME should invoice the customer on dispatch of the goods (or, where the goods are to be provided in installments, on dispatch of each installment) unless otherwise agreed in writing by an authorized officer of AME.
(8.2) no payment shall be deemed to have received until AME has received cleared funds.
(8.3) the customer shall make all payments due under the contract in full. In the event that the customer disputes the payment of all or part of an invoice the customer shall immediately give notice to AME in writing stating the nature of the dispute, the amount disputed and provide reasonable supporting evidence of such dispute. The parties shall negotiate in good faith to resolve any dispute. Where only part of an invoice is disputed, the customer shall pay the undisputed part of the invoice on or before the due date for payment. In the event that any disputed sum shall be determined by a court or subsequently agreed by the customer to be payable, the customer shall pay interest on such sum in accordance with condition 8.7 calculated from the date the payment should have been made.
(8.4) without prejudice to any other right or remedy that it may have, if the customer fails to pay AME any sum due pursuant to the contract, AME may charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate.
(9.1) the customer acknowledges and accepts that the credit limit may be reduced and/or increased at any time on written notice by an authorized officer at AME.
(9.2) AME is entitled on written notice to terminate the contract or suspend the supply of goods to the customer with immediate effect in the event that the customer exceeds any credit limit and/or is in breach pf any provisions in connection with the contract.
(9.3) the customer warrants that all financial and other information provided to AME prior to entering into the contract is true and accurate and not misleading. The customer undertakes to immediately notify AME in writing in the event any circumstances arise that may affect the ability of the customer to fulfil its obligations in accordance with the contract.
10.Return of Goods:
AME at its sole discretion and subject to the prior arrangement of a director of AME, may accept the return of any standard goods, provided the customer returns them at his own risk and expense to the distribution center nominated by AME, in their original packaging and in a resalable condition, and treat the contract in relation to such returned goods as cancelled on payment by the customer of a cancellation fee of 33 % of the original invoiced value of the returned goods. The parties confirm that this represents a genuine pre-estimate of the loss that AME would suffer in the event of such cancellation of the contract. AME reserves the right to inspect any standard goods the customer wishes to return, prior to AME agreeing to accept their return.
(11.1) AME warrants that (subject to the other provisions of these conditions) goods shall, on delivery, correspond with their specification.
(11.2) AME shall not be liable for any breach of any of the warranties at condition 11.1 unless;
(11.2.1) the customer gives written notice of the defect to AME within three business days of delivery and AME issues prior authorization for the return of faulty or damaged goods.
(11.2.2) the customer returns such goods at the customers cost to AME within ten business days of the date of notification of such defect for AME to examine the goods.
(11.3) AME shall not be liable for a breach of any of the warranties in condition 11.1 if:
(11.3.1) the customer makes any further use of such goods after giving such notice.
(11.3.2) the defect arises because the customer failed to follow AME oral or written instructions as to the storage or use of the goods.
(11.3.4) the customer alters or repairs such goods without the written consent of AME
(11.3.5) any defect arising from fair wear and tear, willful damage, negligence, failure to follow AME instructions or alteration of the goods without AME approval.
(11.4) no liability of AME shall arise in connection with condition 11.1 if the total price for the goods has not been paid by the due date for payment.
(11.5) subject to condition 11.2, condition 11.3 and 11.4, if any of the goods do not conform with any of the warranties in condition 11.1 AME shall at its option repair or replace such goods (or the defective part) or refund the price of such goods at the pro rata contract rate.
(11.6) if AME complies with condition 11.5 it shall have no further liability for a breach of any of the warranties in condition 11.1 in respect of such goods.
(11.7) if the customer does not notify AME with condition 11, the customer shall not be entitled to reject the goods, no liability for such defect or failure shall arise, and the customer shall be bound to pay the price as if the goods had been delivered in accordance with the contract.
(12.1) AME shall be entitled to terminate the contract on notice with immediate effect:
(12.1.1) if the customer shall be in breach of any of its obligations in connection with the contract and in the case of breach capable of remedy, shall not have remedied the same within 14 business days after being notified in writing of such breach.
13.Storage, Fixing, Health & Safety:
Nothing is these condition, nor any compendiums, brochures, price lists, instructions, method statements or other documents or designs issued by or on behalf of AME shall create or be deemed to create any obligation, whether expressed or implied on AME.
14.Limitation of Liability:
AME shall not be liable to the customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential or any claims for indirect or consequential loss, damage or liability whatsoever (howsoever caused) which arise out of or in connection with the contract.
All legal notice between the parties about the contract shall be in writing in the English language and delivered by hand, recorded delivery, commercial courier or sent by fax. Communication is in writing, signed by the authorized officer of the party scanned and sent as a pdf document by email.
The customer shall not without the prior written consent of AME assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any of its rights or obligations under the contract.
(17.1) each right or remedy of AME under the contract is without prejudice to any other right or remedy of AME whether under the contract or not.
(17.2) failure or delay by AME in enforcing or partially enforcing any provision of the contract shall not be construed as a waiver of any of its rights under the contract.
18. Force Majeure
A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to, acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event.