HABRAH FOOD & BEVERAGES TRADING CO. L. L. C.
GENERAL TERMS AND CONDITIONS OF SALE
1. GENERAL - SCOPE OF APPLICATION
1.1. Subject to the terms and conditions of as set forth below, the parties agree that Buyer will purchase from Seller, and Seller will sell and provide to Buyer, certain Goods as Buyer may from time-to-time request. Goods and related commercial terms as well as the engagement of Seller to perform any service, including tolling, distribution, and co- packing will be described in, agreed to and confirmed in a purchase order, confirmation order, delivery instruction, receipt, acknowledgment or similar document (written or electronic) sent by Buyer to Seller (each, a “Purchase Order” as defined below), which shall be deemed to exclude any terms or conditions different from or in addition to those contained in these Terms and Conditions, and each such Purchase Order that is confirmed by Seller by issuance of a pro forma invoice to Buyer shall become a part of and subject to the Agreement, as defined below, even if Seller’s pro forma invoice or Buyer’s Purchase Order (as the case may be) is not signed by Buyer.
1.2. In the event that a Purchase Order purports to contain terms and conditions different from or in addition to those contained in the these Terms and Conditions, whether or not such different or additional terms or conditions would materially alter the content of these Terms and Conditions if given effect, such different or additional terms and conditions are hereby expressly rejected by Seller, and Seller and Buyer agree that such different or additional terms or conditions shall have no force or effect. If a verbal or constructive contract between Buyer and Seller is established through performance, course of dealing, or other conduct of the parties, the terms and conditions of such contract shall be documented in writing as soon as practicable and included with these Terms and Conditions as an addendum, which shall prevail over any conflicting or additional term or condition.
1.3. Definitions:
1.3.1 “Seller” shall mean HABRAH FOOD & BEVERAGES TRADING CO. L.L.C thereof supplying or agreeing to supply Goods (as defined below) to Buyer (as defined below). More specifically, the Seller shall be identified by the name and address of the HABRAH FOOD & BEVERAGES TRADING CO. L.L.C entity appearing on the pro forma invoice issued to Buyer.
1.3.2 “Buyer” shall mean the party purchasing or agreeing to purchase Goods from Seller hereunder.1.3.3 “Terms and Conditions” means these General Terms and Conditions of Sale, as the same may be amended from time to time at Seller’s sole discretion.
1.3.4 “Goods” shall mean certain agricultural and food products offered for sale by Seller and purchased by Buyer.
1.3.5 “Purchase Order” shall mean the method by which Buyer submits a written offer to purchase Goods from Seller. Purchase Order may include, where applicable, a document submitted via third-party online platform through which Seller offers Goods for sale, a formal document submitted to Seller by Buyer on Buyer’s letterhead, an email sent to Seller’s sales representative by Buyer’s representative requesting to purchase Goods, confirmation order, delivery instruction, receipt, acknowledgment, or similar document (in hard copy or electronic), and the like.
1.3.6. “Agreement” shall mean the relevant Purchase Order, Seller’s Pro Forma Invoice issued by way of acceptance of such Purchase Order, and these Terms and Conditions, between Buyer and Seller.
1.3.7. “Inspection Period” shall mean the period of time in which the Buyer shall inspect the Goods to identify any alleged nonconformity of Goods, including any off-condition Goods, shortage, or any other discrepancy or situation which may impair the value of the Goods, or which may justify payment of less than the invoiced amount. This period of time shall be limited to forty-eight (48) hours following tender of delivery of the Goods.
1.3.8. “Relevant Jurisdiction” shall mean the jurisdiction of organization, incorporation, or formation of the Seller which issued the pro forma invoice forming a part of the Agreement.
1.3.9. “Applicable Laws and Standards” shall mean laws, rules, statutes, ordinances, regulations, codes, standards, or licensing requirements that are now or hereafter promulgated by any local, state, and federal governmental authority or agency that governs or applies to their respective duties and obligations hereunder and with any and all rules and/or standards that are now or hereafter promulgated by any accrediting or administrative body that governs or applies to their respective duties and obligations hereunder.
1.3.10. “Force Majeure Event” shall mean any cause or circumstance (or combination thereof) which renders Seller wholly or partially unable to perform its obligations hereunder and which are not within the reasonable control of Seller, and shall include without limitation acts of God, war, riots, civil insurrections, cyclones, hurricanes, floods, fires, explosions, earthquakes, natural disasters, lightning, storms, chemical contamination, epidemics, pandemics or plagues, acts or campaigns of terrorism or sabotage, blockades, embargoes, trade restrictions, acts of any governmental authority, strikes and other labor difficulties, shortage of raw materials (including, without limitation, shortage resulting from inadequate livestock, poultry or seafood supply or from grade changes resulting from variations in livestock, poultry or seafood supply), breakdown, shortage or non-availability of transportation facilities or equipment, and other events or circumstances beyond Seller’s reasonable control.
1.3.11. “Product Recall” shall mean any product recall is a notice from governmental agency or a food producer to return, discard, or destroy Goods following the discovery of safety issues associated with the Goods that might endanger consumers.
1.3.12. “Packaging Specifications” shall mean written specifications provided by Buyer to Seller for packaging Goods prior to shipment.
1.3.13. “Packaging Materials” shall mean bags, canisters, boxes, or other like materials required to package the Goods prior to shipment, pursuant to the Packaging Specifications provided by Buyer to Seller.
1.3.14. “Trademarks” shall mean any word, phrase, symbol, design, or a combination of such identifiers.
1.3.15. “Seller’s Intellectual Property” shall mean patents, trademarks, copyrights, or other intellectual property rights, as well as improvements or creations or other intellectual property developed during the course of the relationship between Buyer and Seller.
1.3.16. “Seller’s Confidential Information” shall mean any confidential disclosures, including product specifications, pricing, financial data, formulae, samples, research, goods plans, goods, services, suppliers, customers, inventions, processes, and proprietary marketing and business systems information, or other proprietary information furnished by Seller to Buyer.
2. PURCHASE ORDERS; CREDITWORTHINESS; QUANTITY
2.1. Seller shall not be bound by any Purchase Order until Seller expresses in writing its acceptance of such Purchase Order by issuance to Buyer of an invoice.
2.2. Acceptance by Seller of a Purchase Order in whole or in part shall not obligate Seller to provide future deliveries of Goods not reflected in such Purchase Order.
2.3. Seller shall be entitled to accept a Purchase Order placed by Buyer within a period of three (3) days of Seller’s receipt of the Purchase Order. Buyer’s Purchase Order shall constitute an irrevocable offer for the duration of such period. Seller’s acceptance of any Purchase Order shall be subject to Buyer’s furnishing to Seller of evidence, at the time of order, of adequate creditworthiness (or credit support) as determined by Seller. If Buyer’s purchasing arrangement with Seller under the Agreement contemplates or necessitates more than one shipment of Goods, Buyer shall, as and when requested by Seller, furnish such evidence of adequate creditworthiness (or credit support) in advance of, and as a condition of Seller’s obligation to make, each such shipment.
2.4. Ordered weight/box count is shipped at plus or minus 3% at Seller’s option unless otherwise specified by Seller in writing.
3. PRICES; CLEARANCE OF GOODS; FEES
3.1. Unless otherwise stipulated in the pro forma invoice, the prices and all other monetary amounts referred to in the Agreement must be paid in the currency set forth in the pro forma invoice, regardless of any fluctuations in the currencies of other countries.
3.2. Unless otherwise expressly agreed in writing between Buyer and Seller, all prices quoted by Seller to Buyer are exclusive of applicable taxes, duties and levies, such as sales, use, import, value-added and excise taxes upon or with respect to the sale, purchase, use, receipt, or shipment of the Goods, all of which shall be borne and paid by Buyer.
3.3. Following the acceptance of a Purchase Order pursuant to Section 2.1 hereof, no decrease or discount in the pricing for the Goods shall be binding unless agreed to by Seller in writing.
3.4. Unless otherwise expressly agreed in writing between Buyer and Seller, Buyer (or a licensed customs broker or other agent engaged by it on Buyer’s behalf and at Buyer’s sole expense) shall act as importer of record in any country of import and all customs, consular fees and other taxes, duties, fees, and other costs connected with them, wherever levied, shall be borne and paid by Buyer.
4. PAYMENT TERMS; SELLER’S RIGHTS
4.1. Payment terms are reflected in each pro forma or commercial invoice tendered by Seller to Buyer.
4.2. All remittances must be submitted according to the terms of the pro forma invoice. Payments by Buyer shall be made in the currency accounted in the pro forma invoice and be made without deduction, withholding or setoff. Payments may be made by wire transfer to a bank account the details for which shall be provided by Seller in the pro forma invoice. Bills of exchange and cheques, if the pro forma invoice permits payment by such means, shall be considered as payment only after redemption/cashing by Seller and shall not be subject to any obligation on Seller’s part of presentment, protest or notice of dishonor.
4.3. If any payment to Seller is not made when due, then Seller shall be entitled to:
4.3.1. demand interest thereon (calculated from the due date of payment to the actual date such payment, together with such interest, is received) at an annual rate (but with interest accruing on a daily basis) equal to the lesser of (a) eighteen percent (18%) per annum, and (b) the maximum rate permitted under applicable laws of the Relevant Jurisdiction.
4.3.2. suspend all performance relating to the relevant Purchase Order and/or other Purchase Orders from Buyer until such overdue payment, together with applicable interest hereunder, is received in full by Seller; and
4.3.3. assert all claims against Buyer arising from the respective or other transactions as set forth in these Terms and Conditions.
4.4. BUYER SHALL IMMEDIATELY NOTIFY SELLER OF ANY MATERIAL FACTS THAT RELATE TO BUYER’S INABILITY TO ABILITY TO PERFORM ON ITS CURRENT OR FUTURE OBLIGATIONS TO SELLER.
4.5. If, at any time after Seller’s acceptance of any Purchase Order from Buyer hereunder, Seller obtains knowledge of facts evidencing a material deterioration of Buyer’s financial condition and circumstances, which in Seller’s estimation adversely affects Buyer’s ability to perform its current or future obligations to Seller (including, without limitation, the levying of any attachment or other process upon any of Buyer’s assets; the initiation by or against Buyer of any bankruptcy, insolvency, reorganization, moratorium or similar proceedings; the appointment of a receiver, administrator, conservator or similar official for Buyer; the entry into voluntary or involuntary liquidation of Buyer; or the admission by Buyer of its inability, or any threat by Buyer to cease, to carry on its business or to pay its debts as they become due), then Seller shall be entitled to demand from Buyer provision of suitable collateral security or letter of credit within a reasonable period of time. ANY CREDIT GRANTED TO BUYER MAY, IN THE SOLE DISCRETION OF SELLER, BE REDUCED OR WITHDRAWN AT ANY TIME, NOTHWITHSTANDING ANY PREVIOUSLY APPROVED PAYMENT TERMS TO THE CONTRARY. SELLER RESERVES THE RIGHT TO WITHHOLD, SUSPEND, OR STOP IN TRANSIT ANY SHIPMENT SHOULD ANY DOUBT ARISE AS TO BUYER’S CREDIT OR FINANCIAL RESPONSIBILITY.
4.6. Seller reserves the right to alter, modify, or discontinue the Goods and change its warranty, support, or other policies, without notice and without any obligation to Buyer.
5. SUPPLY; ACCEPTANCE OF GOODS
5.1.The Purchase Order shall be delivered to the Seller by one of the following ways: by e-mail: sales1@habrah.com or sales2@habrah.com sales3@habrah.com or by telephone nombers.: +971 50 215 4822 or +971 50 292 1544 or +971 50 215 4423;
5.2.The Buyer shall place the Orders using its corporate e-mail addresses.
5.3.The Buyer’s Order shall be deemed accepted only after the execution of the Proforma Invoce (Sales Order).
5.4.The Products shall be deemed shipped as at transfer thereof to the representative of the Buyer. The shipment date shall be the acceptance date of the Products by the representative of the Buyer set forth in shipment documents.
5.5 Delivery dates are based on Seller’s best estimate, are subject to production limitations and availability of goods, and hence are not guaranteed. The inability of Seller to fill an order within the delivery period requested by Buyer does not entitle Buyer to claim damages or release Buyer from its obligations under the Agreement, including its obligation to place orders, make payments, and take subsequent deliveries.
5.6 If the Agreement provides for multiple deliveries over a period exceeding one (1) month, then Seller shall not be obligated to deliver in any thirty (30) day period more than approximately equal monthly quantities in relation to the total amount of Goods covered by the Agreement, and Seller may make shipments of the total amount of Goods in such equal monthly quantities.
5.7 Buyer shall take delivery of the Goods during the delivery period reflected on the pro forma or commercial invoice tendered by Seller to Buyer.
5.8 If Buyer is unable or refuses to accept delivery of Goods, then Buyer shall also pay any increased duties, fees, storage fees, demurrage, taxes or other charges or tariffs resulting from any delivery delay.
5.9 If Buyer is unable or refuses to accept delivery of Goods, then Seller, at its discretion and in addition to any other rights or remedies, may at Seller’s option:
5.9.1 impose a finance charge each month on all Goods which have not been timely accepted for delivery by Buyer by the 30th day subsequent to the specified delivery period in an amount of eighteen percent (18%) per annum of the cost of the Goods;
5.9.2 store the Goods until Buyer takes possession of them, at which time Buyer shall be liable for all costs and expenses resulting therefrom (including but not limited to the cost of storage and insurance); and/or
5.9.3 cancel the Order.
5.10 In the event the Agreement is deemed or interpreted to be an installment contract, the failure of Seller to ship or deliver an installment when due shall not substantially impair the value of the Agreement as a whole and will not constitute a breach of the Agreement as a whole. In the event of any non-delivery of an installment by Seller, Buyer’s exclusive and sole remedy shall be limited to delivery of the Goods constituting such installment as soon as Seller can arrange reasonably to do so.
5.11 If Buyer is responsible for providing the means of transport for delivery, then:
5.11.1 the forwarder’s receipt shall be considered sufficient evidence for delivery in accordance with the Agreement; and
5.11.2 if Buyer fails to provide such transport within the time provided hereunder for the same, Seller’s obligation to deliver the Goods shall be deemed discharged and satisfied by Seller’s storing and insuring the Goods at the expense and risk of Buyer.
5.12. The risk of accidental loss or damage to the Products shall be borne by the owner thereof
5.13. Ownership of the Products shall be transferred to the Buyer at the time of fulfilment of Seller’s obligations for the transfer of the Products the representative of the Buyer.
6. FORCE MAJEURE
6.1 If a Force Majeure Event occurs that prevents Seller from performing any one or more obligations hereunder, then Seller shall be excused from performing such obligations for so long as such Force Majeure Event persists plus a reasonable re-starting period.
6.2 Seller shall with reasonable promptness notify Buyer of the occurrence of such Force Majeure Event and how long Seller expects it to last.
6.3 If Force Majeure Event occurs that prevents Buyer from performing any one or more obligations hereunder, then Buyer shall with reasonable promptness notify Seller of the occurrence of such Force Majeure Event and how long Buyer expects it to last.
6.4 If such Force Majeure Event persists unabated for more than sixty (60) days, or if as a result of such events, later performance becomes impossible or unreasonable for Seller, then Seller shall, upon written notice to Buyer, be entitled to terminate the unperformed portions of the Agreement (with respect to the affected Purchase Order(s)) without penalty or further liability in respect thereof.
7. SHIPPING INSTRUCTIONS; INCOTERMS®; LIEN; ROUTING; TITLE AND RISK OF LOSS
7.1. Buyer shall furnish in writing, or accept Seller’s (as applicable), complete shipping terms at the time of order, and Seller shall have no obligation to make shipment or delivery in the absence thereof. If Buyer’s purchasing arrangement with Seller under the Agreement contemplates or necessitates more than one shipment of Goods, Buyer must arrange for multiple shipments in advance of, and as a condition of Seller’s obligation to make, each such shipment.
7.2. Unless otherwise specified by Seller in writing, and subject to Section 3 above, the Incoterms® (2022) applicable to each shipment of Goods shall be CPT (Place of Destination). In the event of a conflict between this Section 7 and the Incoterms® (2022) set forth in the pro forma invoice, the pro forma invoice shall control.
7.3. Until the unpaid pro forma invoice price under the Agreement, and any other amounts payable by Buyer to Seller, are paid in full, Seller shall have a lien on the Goods for the unpaid amounts. Buyer hereby grants to Seller a security interest in the Goods to secure payment of such amounts.
7.4. Unless otherwise provided by Buyer in writing, and agreed to by Seller in writing, the routing of shipments to the port of discharge and carrier selection will be at Seller’s option.
7.5. Title to the Goods and risk of loss or damage passes to Buyer upon Seller’s delivery of the Goods in accordance with Incoterms (2022) CPT (Place of Destination) or, alternatively, the applicable Incoterms® (2022) specified in the Seller’s pro forma or commercial invoice.
8. PRODUCT RECALL
8.1. In the event of a Product Recall affecting the Goods, Buyer shall immediately cease using the Goods upon receipt of notice from Seller.
8.2. Seller’s sole obligation in the event of a recall of any Goods shall be to replace Goods subject to the Product Recall.
8.3. Seller shall pass through to Buyer any remedies available in the event of a Product Recall of third-party Goods.
8.4. The foregoing shall be Buyer’s sole and exclusive remedies with respect to any Product Recall issue.
9. LIMITED WARRANTIES
9.1. With respect to the Goods to be delivered hereunder, subject and without prejudice to the other provisions of this Section, Seller warrants directly to Buyer as follows, in each case as of the time of shipment of the Goods hereafter made by Seller (all of the following are hereinafter collectively referred to as the “warranties”):
9.1.1. Seller has the right to convey title to the Goods.
9.1.2. The Goods are not adulterated or misbranded, as such terms (or their equivalents) are defined by applicable laws and regulations governing the processing and labelling of such Goods in the country of origin thereof, provided that no guarantee concerning misbranding is given if Goods are delivered under a label designed or furnished by Buyer.
9.2. EXCEPT FOR THE WARRANTIES SPECIFICALLY PROVIDED IN SECTION 10.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL EXPRESS OR IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS) WITH RESPECT TO THE GOODS ARE DISCLAIMED AND EXCLUDED BY SELLER.
9.3. If the sale is based upon a sample, the sample shown by Seller to Buyer was for demonstrative purposes only, and Seller makes no warranty that the Goods delivered shall conform to the sample; conformity of the Goods to the sample is not a part of the basis of the bargain between Seller and Buyer.
9.4. If asserting a claim for nonconforming Goods, Buyer must preserve the goods intact under proper refrigeration and afford Seller or its agent the opportunity to inspect the Goods before they have been further handled, processed, disposed of, or otherwise dealt with.
9.5. Buyer’s exclusive remedy for shipment of nonconforming Goods, including for breach of warranty, is expressly limited, at Seller’s option to:
9.5.1. Replacement of such Goods, in which case Seller shall be afforded a commercially reasonable time within which to ship replacement Goods to the same Purchase Order delivery location at no additional cost to Buyer or to a different location designated by Buyer, provided that Buyer pays any additional costs in connection with such different location;
9.5.2. Credit or refund of the purchase price of such Goods, less any applicable discounts, rebates or credits.
9.6. Buyer shall, at Seller’s option and direction, either:
9.6.1. ship all allegedly nonconforming Goods, at Seller’s expense and risk of loss, to a location designated by Seller; or
9.6.2. dispose of allegedly nonconforming Goods in a manner mutually acceptable to Buyer and Seller, with all reasonable costs of such disposition to be borne by Seller.
9.7. As soon as possible, but in any event no later than forty-eight (48) hours following tender of delivery of the Goods (Inspection Period), Buyer will provide via telephone (followed by written notification as soon as possible thereafter) or email notification to Seller of any alleged nonconformity of Goods, including any off-condition Goods, shortage, or any other discrepancy or situation which may impair the value of the Goods, or which may justify payment of less than the invoiced amount. Such notification shall be made by Buyer to Seller’s sales representative through whom Buyer purchased the Goods to which such claim relates. If notice is not so made within the Inspection Period, then Buyer shall for all purposes be deemed to have accepted the Goods as conforming in all ways and will submit to Seller full payment therefor on or before the agreed-upon date. Within seven (7) days after initial notification of a claim, if any, Buyer shall submit to Seller a detailed written confirmation of such claim and shall attach copies of all documents or other supporting evidence relevant thereto. Any such correspondence provided for in this Section must be submitted to the aforementioned sales representative in accordance with Section 23 hereof. Any payment for less than the invoiced amount must be authorized in writing in advance by Seller. Seller’s acceptance of a partial payment from Buyer shall not constitute approval, admission or acceptance of Buyer’s claim or constitute a waiver of any of Buyer’s obligations or Seller’s rights.
9.8. THE AFORESAID REMEDIES, INCLUDING REPLACEMENT, CREDIT OR REFUND, AT SELLER’S DISCRETION, ARE EXPRESSLY AGREED TO BE THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY.
10. LIMITATION ON ACTIONS
NO ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
11. INDEMNIFICATION
Buyer shall indemnify, defend and hold harmless Seller and its related parent, subsidiaries, and affiliated companies, successors and assigns, and each of their respective officers, directors, employees, and agents from and against any and all claims, losses, damages, costs, and expenses (including attorney’s fees and amounts paid in settlement in good faith) which may be suffered or incurred as a result of any claim, demand, suit, proceeding or cause of action arising in any manner from: (i) any acts or omissions by Buyer or its representative, arising out of or relating to Buyer’s purchase, handling, transportation, export, re-export, re-transfer, import, possession, use, demonstration, marketing, sale, storage fees, demurrage, disposition, distribution or maintenance of the Goods; (ii) any statements, representations (whether oral, written, expressed, or implied), suppression of information, or failure to disclose information of any kind by Buyer or its representative with respect to Goods different or in addition to the applicable Goods warranty provided by Seller; (iii) the improper use or disclosure of Seller’s Intellectual Property; (iv) any intentional misconduct or negligent act or omission of Buyer, its related parent, subsidiaries, affiliated companies, successors, assigns, officers, directors, employees, or its agents; (v) any contractual obligation assumed by Buyer toward a third-party; (vi) any misuse, mishandling, or modification of Goods by Buyer or its related parent, subsidiaries, affiliated companies, successors, assigns, officers, directors, employees, or its agents; or (vii) Buyer's failure to comply with any law applicable to these terms or the performance of Buyer's obligations hereunder.
12. COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS AND PMI’S GLOBAL TRADE POLICY
12.1 Buyer and Seller shall at all times and at their own expense: (i) strictly comply with all applicable laws, rules, regulations, ordinances and governmental orders, now or hereafter in effect, relating to its performance of the Agreement, including, without limitation, trade sanctions, export, and import laws and regulations; (ii) pay all fees and other charges required by such laws, rules, regulations and orders; and (iii) maintain in full force and effect all licenses, permits, authorizations, registrations and qualifications from all applicable governmental departments and agencies to the extent necessary to perform its obligations hereunder. If requested by Seller, Buyer will sign written assurances and other export or import related documents, as may be required under applicable trade sanctions, export, or import laws and regulations.
12.2 Any Goods or technical information provided under the Agreement may be subject to U.S. export controls and trade sanctions laws and regulations of similar import of other countries. Buyer and Seller agree to comply with all applicable trade sanctions, export controls, and import laws and regulations and to obtain any required licenses or item classification to export, reexport, or import deliverables. Buyer and Seller agree not to export, re- export, divert, or transship the Goods to persons on the applicable U.S. restricted parties lists or to any embargoed or terrorist supporting countries as specified in the U.S. Export Administration Regulations (EAR) and the U.S. Foreign Assets Control Regulations (FACR) without prior required authorization. Buyer and Seller will not use deliverables for prohibited nuclear, missile, or chemical biological weapon end uses, or other end uses prohibited under the EAR.
12.3 Buyer will advise Seller in writing within three (3) calendar days of its actual or perceived non-compliance with applicable trade sanctions, export controls, and import laws and regulations.
12.4 Buyer hereby acknowledges, represents, warrants, and covenants that it has read, understood, and will comply with all applicable provisions of PMI’s Global Trade Compliance Policy, incorporated herein and made a part hereof by this reference, and set forth in full on Seller’s website at www.pmifoods.com/en/company/compliance.
12.5 Buyer acknowledges that Seller is subject to the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and anti- bribery and anti-corruption laws in various other jurisdictions. Buyer agrees that it will (a) comply in all respects with such laws, including the comparable laws of all jurisdictions where it or its related parent, subsidiaries, affiliated companies, successors, assigns, officers, directors, employees, or its agents are conducting business, (b) provide written certification of its compliance with the foregoing when asked by Seller, and (c) cooperate with Seller and its designees at Buyer's expense in any inquiry or investigation of Buyer or its agents regarding their conduct or alleged conduct relating to compliance or failure to comply with any of the foregoing or any other Applicable Laws and Standards.
13. BUYER’S USE OF GOODS
13.1. Buyer represents and warrants that it shall use and sell all Goods ordered herein in accordance with Applicable Laws and Standards.
13.2. Except as expressly stated in the Agreement or in the Seller’s specifications, Seller makes no promise or representation that the Goods shall conform to any other Applicable Laws and Standards.
13.3. Buyer shall be exclusively responsible for ensuring compliance with all Applicable Laws and Standards associated with its intended use and disposition of the Goods.
14. CONFIDENTIALITY
14.1. Seller’s Confidential Information is the sole property of Seller and are submitted in confidence upon the understanding and agreement by Buyer that Seller’s Confidential Information shall not be disclosed or furnished to any third party nor used by Buyer in whole or in part for any purpose except as agreed in writing by Seller.
14.2. This obligation of confidentiality shall not apply to information that is in the public domain, independently developed without use of Seller’s Confidential Information or that is received from third parties not under an obligation of confidentiality or required to be disclosed by law or regulation.
14.3. Unless otherwise expressly agreed in writing, Buyer acknowledges the existence of Seller’s Intellectual Property and (b) the furnishing of information or related documents or other materials by Seller to Buyer does not grant nor transfer any license in or to Seller’s Intellectual Property to Buyer.
15. ETHICAL SOURCING
It is Seller’s policy to purchase goods and services that are produced and delivered under conditions that uphold fundamental human rights; do not involve the abuse or exploitation of any persons; are grown, produced, manufactured, and sold in accordance with the laws of the country of origin; and minimize negative impacts on the environment.
16. BUYER’S DEFAULT
16.1. An event of default under the Agreement (which shall also constitute a material breach hereof) shall occur if Buyer:
16.1.1. fails to furnish shipping instructions as and when required hereby;
16.1.2. fails to supply evidence of adequate creditworthiness (or credit support) as and when required hereby;
16.1.3. refuses to accept any shipment of conforming Goods properly tendered;
16.1.4. fails to provide suitable security as and when required by Section 4.4 hereof;
16.1.5. fails to make any payment or portion thereof when due;
16.1.6. cancels a Purchase Order; or
16.1.7. fails to perform in any other respect according to its obligations as set out in the Agreement
16.2. In the event of such default by Buyer, Seller may, in its discretion, treat such default as (a) a total breach of the entire Agreement, or (b) a breach only as to the individual shipment or installment in question. In addition to any other rights or remedies which Seller may have at law or in equity, Seller may:
16.2.1. cancel the Agreement and retain any amounts paid by Buyer through the date of such cancellation;
16.2.2. terminate the Agreement as to the portion thereof as to which the default exists or as to any unshipped balance, or both; and/or
16.2.3. resell, after ten (10) days’ notice to Buyer, any of the Goods which have been shipped and which Buyer has wrongfully failed or refused to accept and receive from Buyer the difference between the Agreement price therefor and the price obtained upon resale if the latter be less than the former, as well as any incidental loss and expense incurred by Seller.
17. LIABILITY FOR DAMAGES
17.1. Notwithstanding any other provision of the Agreement, except as set forth below, Seller’s aggregate liability to Buyer for damages arising under or in relation to the Agreement and any related Purchase Order, whether arising under the law of tort, contract or otherwise, shall not exceed the aggregate amount of all fees and costs actually paid to Seller by Buyer hereunder with respect to the relevant Purchase Order; provided that the foregoing limitation of liability shall not apply to damages arising from intentional misconduct, willful misconduct, or gross negligence on the part of Seller or its employees, personnel, and agents (to the extent acting within the scope of such employment or agency). Any liability of Seller to Buyer arising under the law of tort in connection with the Agreement or any other contract concluded pursuant hereto, shall be limited to acts that constitute intentional misconduct, willful misconduct, willful misconduct, or gross negligence on the part of Seller or its employees, personnel, and agents (to the extent acting within the scope of such employment or agency).
17.2. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, LOSS OF PROFITS, DAMAGE TO GOODWILL OR REPUTATION AND/OR DEGRADATION IN VALUE OF BRANDS, TRADEMARKS, TRADENAMES, SERVICE NAMES OR SERVICE MARKS), WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, FAILURE TO WARN OR STRICT LIABILITY), CONTRIBUTION, INDEMNITY, SUBROGATION OR OTHERWISE, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO SELLER IN ADVANCE OR COULD REASONABLY HAVE BEEN FORESEEN BY SELLER. BUYER ASSUMES ALL RISKS AND LIABILITIES FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE USE OR SUBSEQUENT SALE OF THE GOODS, WHETHER IN WHOLE OR IN PART AND WHETHER ALONE OR IN COMBINATION WITH OTHER GOODS.
18. LANGUAGE; GOVERNING LAW; RELEVANT JURISDICTION
18.1. These Terms and Conditions are prepared in the English language, and the English language shall control all interpretations, disputes, and adjudications pertaining thereto.
18.2. The Agreement shall be governed by and construed in accordance with the internal laws of the Relevant Jurisdiction, as though the Agreement were to be wholly performed in the Relevant Jurisdiction without regard to any conflicts of laws principles thereof that would result in the application of the laws of another jurisdiction.
18.3. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THE AGREEMENT OR THE DOCUMENTS RELATED HERETO, NOR TO ANY DISPUTE OR CLAIM ARISING UNDER OR RELATED TO THE AGREEMENT.
19. DISPUTE SETTLEMENT
19.1. Compliance with the procedure for extrajudicial settlement of claims before legal action shall be mandatory for the parties.
19.2. Any dispute, disagreement or claim arising out of or in connection with this Contract, including those relating to performance, breach, termination or invalidity thereof, shall be settled by the courts of the Dubai International Financial Centre, the UAE in accordance with its Rules in effect at the time of conclusion of the Contract. Applicable law shall be the UAE substantive law. Language of arbitration shall be English.
19.3. The dispute shall be considered by 3 (three) arbitrators assigned in accordance with the Rules of Dubai International Financial Centre, the UAE.
19.4. The Parties agree that the decision of Dubai International Financial Centre, the UAE shall be final and binding on them and undertake to comply with such decision voluntarily within the period specified in this decision.
19.5. This arbitration clause is accepted by the parties voluntarily.
19.6. All costs associated with dispute settlements by the courts shall be borne by unsuccessful party.
20. ASSIGNMENT
20.1. Buyer may not assign any of its rights hereunder or delegate any performance under the Agreement, without the express prior written consent of Seller. Seller may assign its rights under the Agreement upon notice to Buyer:
20.1.1. to a business entity directly or indirectly acquiring all or substantially all of Seller’s assets or Seller’s capital stock or other equity interests;
20.1.2. to a business entity with which a parent, subsidiary, or other affiliate (at any level) of Seller merges, amalgamates or consolidates; or
20.1.3. to a parent, subsidiary, or other affiliate (at any level) of Seller.
20.2. Without limiting Section 22.1, Seller may assign or transfer to any person, with or without notice to Buyer, all or any part of Seller’s right to payment of any amount payable by Buyer under or in connection with the Agreement.
20.3. Subject to the foregoing, the Agreement will be binding upon and inure for the benefit of Buyer and Seller and their respective heirs, administrators, executors, successors, and permitted assigns.
20.4. The Agreement is made solely for the benefit of Buyer and Seller, and no provision of the Agreement shall confer upon third parties any right or remedy.
21. ADDITIONAL TERMS AND CONDITIONS
21.1. The Buyer shall pay all bank charges and fees, including those of transit banks, associated with the performance of this Contract before the funds are credited to the Seller’s account.
21.2. Any amendments and additions to this Contract shall be valid if made in writing and signed by authorized representatives of both Parties.
21.3. In case of execution of the Contract in counterparts via fax or e-mail address: info@habrah.com the Buyer undertakes to send two (2) original counterparts of the Contract by express mail to the Seller’s address: Al Barsha Business Center Building, 2nd Floor, Office 232, Al Barsha 1, Dubai, UAE hereof within five (5) business days from the date of signing of the Contract. The Seller shall send to the Buyer one (1) counterpart of the Contract signed on its part within five (5) business days from the date of receipt of the original Contract counterparts signed by the Buyer.
21.3.1. Facsimiles and/or scanned copies of this Contract, Annexes and additional agreements, as well as orders, invoices, notices, claims, etc. signed by both Parties shall have legal effect of the original until the Parties exchange the original documents.
21.4. All correspondence and other documents, as well as amendments to this Contract or Specifications submitted by telex, fax or e-mail and confirmed by sending a response by the other Party, shall be also considered valid.
21.5. The Contract may be early terminated by the Seller or the Buyer, if it has no arrears in payment for the accepted Products, by a written notice to the other Party not less than 30 days prior to the intended date of termination.
22. SEVERABILITY
22.1. If any provision of the Agreement is found by any arbitral body or court of competent jurisdiction to be invalid or unenforceable, in whole or in part, such invalidity or unenforceability shall not affect the other provisions of the Agreement which shall remain in full force and effect.
22.2. If any provision of the Agreement is so found to be invalid or unenforceable but would cease to be invalid or unenforceable if some part of the provision were modified or deleted, the provision in question shall apply with such minimum modification or deletion as may be necessary to make it valid and enforceable.
23. AMENDMENT, WAIVER AND CUMULATIVE REMEDIES
23.1. No amendment to or modification of the Agreement shall be effective unless such amendment or modification is contained in a written instrument duly executed by or on behalf of Seller. Seller reserves the right to add to, modify, supersede, alter, or revoke these Terms and Conditions upon written notice to Buyer.
23.2. The rights and remedies provided by the Agreement may be waived only in writing and specifically, and any failure to exercise or any delay in exercising a right or remedy by either party shall not constitute a waiver of that right or remedy or of any other rights or remedies. A waiver of any breach of any of the terms of the Agreement or of a default under the Agreement shall not constitute a waiver of any other breach or default and shall not affect the other terms of the Agreement.
23.3. Except as otherwise provided in the Agreement, the rights and remedies provided by the Agreement are cumulative and are not exclusive of any rights or remedies provided at law or in equity.
24. INDEPENDENT CONTRACTOR
Seller shall perform its obligations hereunder as an independent contractor, and nothing contained herein shall be construed to create a partnership, agency, joint venture, or employment relationship between Seller, its employees, or agents on one hand, and Buyer, its employees, or agents on the other hand. Seller shall retain discretion and control with respect to the manner and means of providing Goods hereunder.
25. ENTIRE AGREEMENT
24.1. The Agreement constitutes the entire agreement and understanding between the parties in respect of the matters dealt with herein and supersedes any previous agreement between the parties relating to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination.
24.2. Buyer acknowledges and agrees that in entering into the Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than as expressly set out in the Agreement.
26. AUTHORITY
Each party hereto represents and warrants that it has the power and authority to enter into the Agreement and to perform its obligations hereunder.