Barton Engineering FZE
Terms and Conditions of Trading
BUYER: means the person, firm or the company entering into the Contract to purchase the goods and/or Service from the Seller.
CONDITIONS: means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
CONTRACT: means the contract for the purchase and sale of Goods and/or Services.
DELIVERY DATE: means the earlier of the time of actual delivery of the Goods or, if the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, the date that the Seller notifies the Buyer that the Goods are ready for delivery or, as the case maybe, the Seller tenders delivery of the Goods or, if the Buyer wrongfully fails to allow the performance of the Services, the date that the Seller notifies the Buyer that it is in a position to perform the Services.
GOODS: means the goods (including any installment of the Goods or any parts for them) which the Seller is to supply in accordance with these Conditions.
SELLER: means BARTON ENGINEERING FZE.
SERVICES: means the Services which the Seller is to supply in accordance with these Conditions.
TOOLING: includes patterns, tooling & dies.
WRITING: Includes telex, cable, facsimile transmission, electronic mail and comparable means of communication.
2.1 These Conditions shall govern the Contract to the exclusion of any other terms and conditions.
3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) and for giving the Seller any necessary information relating to the contract within a sufficient time to enable the Seller to perform the Contract. Where the Goods are to be supplied to the Buyer’s specification, the Buyer warrants that the Goods are capable of production.
3.2 The quantity, quality and description of and any specification for the Goods and/or the description of the Services shall be those set out in the Seller’s quotation (if accepted by the Seller).
3.3 The Seller reserves the right to make any changes in the specification of the Goods or Services which are required to conform with any applicable safety or other statutory or legal requirements or, where the Goods or Services are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
4.1 The price shall be the Seller’s quoted price, or where no price has been quoted or a quoted price is no longer valid, the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export, the Seller’s export price list shall apply in the absence of a price quoted by the Seller. All prices quoted are valid for 30 days or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without notice.
5.1 The Seller shall be entitled to invoice the Buyer for the price on or at any time after the Delivery Date.
5.2 The Buyer shall pay the price without any deduction or set-off (save as set out in this condition 5.2) on or before the last day of the month following the Delivery Date and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer and/or the Services have not been performed. The time of payment of the price shall be of the essence of the contract.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy, the Seller shall be entitled to;
5.4 The Seller may without notice set off any sums from time to time owed to the Buyer in or towards the satisfaction of all and any liabilities of the Buyer to the Seller whether or not under this Contract.
5.5 The Seller shall have a general lien over all goods and property of the buyer (whether worked on or not) in the possession of the Seller for all unpaid debts due from the Buyer and the Seller reserves the right upon the expiration of fourteen days written notice to dispose of such good or property and to apply the proceeds of sale (net of costs of sale) towards the payment of such debts.
6. DELIVERY AND PERFORMANCE
6.1 The Buyer shall be responsible for the unloading of Goods and where the Seller or its employees or agents carries out or assist the Buyer in such unloading. The Buyer shall indemnify and keep indemnified the Seller against all liabilities including without limitation all loss, costs, damages, charges and expenses from such unloading.
6.2 Any dates quoted for delivery of the Goods or performance of the Service are approximate only and the Seller shall not be liable for any delay howsoever caused. The Goods may be delivered and/or Services maybe performed by the Seller in advance of the quoted delivery date upon giving reasonable notice to the buyer.
6.3 The Seller reserves the right to under or over-deliver the order quantity of any Goods by up to 10% more or less without any adjustments in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.4 Where the Goods are to be delivered or Services performed in installments, each delivery or performance shall constitute a separate contract and failure by the Seller to deliver or perform any one or more of the installment in accordance with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitled the Buyer to treat the Contract as a whole as repudiated.
6.5 If the Seller fails to deliver the Goods (or any installment) or perform any Services (or any installment) for any reason other than any cause beyond the Seller reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess, if any, of the reasonable costs to the buyer (in the cheapest available market) of similar goods and/or services to replace those not delivered over the price of the Goods and/or Services.
6.6 If the Buyer fails to take delivery of the Goods or to allow performance of the Services or fails to give the Seller adequate delivery or performance instructions at the time stated for delivery or performance (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Sellers fault) then, without prejudice to any other right or remedy available, the Seller may;
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable cost of storage, including insurance;
6.6.2 after the expiration of 3 months from the Delivery Date to dispose of the Goods in such manner as the Seller may determine and;
6.6.3 suspend any further delivery of Goods and/or goods and/or performance of the Services and/or services under the Contract or any other contract.
6.7 The Services shall be performed at the Seller’s premises.
7. RISK AND PROPERTY
7.1 Risk of Damage to or loss of the Goods shall pass to the Buyer on the Delivery Date.
7.2 The property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods sold or agreed to be sold by the Buyer under any other contract.
7.3 Until such time properly in the Goods shall not pass to the Buyer, the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, If the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods and for the purpose the Buyer hereby authorize and license the Seller, its officers, employees and agents to enter upon any land or building upon which the Goods are situated to recover those goods, and the Buyer shall indemnify the Seller against all cost, damages, charges and expenses in such regard.
8. WARRANTIES AND LIABILITIES
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 8.
8.1 The Seller warrants that the Goods will be free from defects in material and workmanship for a period of 3 months from the Delivery Date and that the Services will be performed with reasonable care and skill.
8.2 The above warranties are given by the Seller subject to the following conditions:
8.2.1 The Seller shall be under no liability in respect of any failure or defect arising from any Tooling, drawing, design, or specification supplied by the Buyer;
8.2.2 The Seller shall be under no liability in respect of any defect or failure arising from fair wear and tear, willful damage, negligence, abnormal working condition, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s prior approval;
8.2.3 If the total price has not been paid by the due date, the Seller shall be under no liability until the total price has been paid.
8.2.4 The above warranties do not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit or any such warranty or guarantee as it given by the manufacturer to the Seller;
8.2.5 The Seller shall under no liability in respect of any failure or defect is within reasonable commercial tolerances.
8.3 Subject as expressly provided in these Conditions, all warranties, conditions and other terms implied by statute or law are excluded to the fullest extent permitted by law.
8.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods, any failure to exercise reasonable care and skill or any under or over-delivery of the Goods shall, whether or not delivery is refused by the Buyer, be notified to the Seller within 3 days from the Delivery Date or, where the defect or failure was not apparent on reasonable inspection, within a reasonable time after delivery of the defect or failure and in any event within 7 days of discovery. If delivery is not refused, and the Buyer does not notify the Seller, the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Contract has been performed in accordance with its terms.
8.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or any failure to exercise reasonable care and skill is notified to the Seller in accordance with these Conditions , the Seller shall be entitled to replace the Goods (or part in question) or to re-perform the Services free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
8.6 The Seller shall not be liable to the Buyer be reason of any representation , or any implied warranty, condition or other term , or any duty of law, or under the express terms of the contract, for any consequential loss or damage (whether for loss of profit, product recall or otherwise) which arise of or in connection with the supply of the Goods and/or the Services or their use or resale by the Buyer and the entire liability of the Seller under or in connection with the Contract shall not exceed the price under the Contract, except as expressly provided in these Conditions.
8.7 The Seller shall not be liable to the Buyer or to be deemed to be in breach of the Contract by reason any delay in performing, or any failure to perform, any of the Seller’s obligation, if the delay or failure was due to any cause beyond the Seller’s reasonable control.
9. INDEMNITY
THE BUYER’S ATTENTION IN PARTICULAR DRAWN TO THE PROVISIONS OF THE CLAUSE.
9.1 The Buyer shall take or procure the taking of all such steps as may be necessary to ensure the safety of the Seller’s employees, agents and contractors or any premises at which the Service is to be provided without limitation, notifying such representatives of any relevant hazards.
9.2 The Buyer shall indemnify and keep indemnified the Seller, its officers, employees agents and sub-contractors against any loss or damage to any property or injury or death of any person caused by any negligent act or omission or willful misconduct of the Buyer, its employees agents or sub-contractors, including all and any costs and expenses relating thereto.
10. TOOLING
10.1 Any Tooling supplied by the Buyer shall remain the property of the Buyer at the Buyer’s risk. The Buyer shall be responsible for the repair and maintenance of such Tooling. The Seller shall not use such Tooling in connection with any contract with a third party without the Buyer’s prior consent in Writing.
10.2 All tooling used, manufactured or procured in connection with contract and which is not supplied by the Buyer shall be the property of the Seller.
10.3 All any intellectual and industrial property rights comprised in any Tooling shall vest in the party owning such Tooling.
10.4 The Seller reserves the right to charge the Buyer for the cost of storage of the Buyer’s Tooling and to require the Buyer to remove such Tooling from the Seller’s premises upon not less than 3 months notice in Writing.
11. INSOLVENCY OF BUYER
11.1 This clause applies if;
11.1.1 The Buyer makes any voluntary arrangement with its creditors or become subject to an administration or similar order (for being an individual firm) become bankrupt or (being a company) goes into liquidation, otherwise than for the purpose of amalgamation or reconstruction; or
11.1.2 An encumbrancer take possession, or a receiver is appointed, of the Buyer’s undertaking or any of its property or assets; or
11.1.3 The Buyer ceases, or threatens to cease, to carry on business; or
11.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
11.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend performance and/or any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered and/or Services performed, but not paid to, the price shall become immediately due and payable.
12. EXPORT TERMS
12.1 The Buyer shall be responsible for complying with any legislation and regulation governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
12.2 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered ex-works.
12.3 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
12.4 Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favor of the Seller and confirmed by the Seller’s Bank in the United Arab of Emirates, or, if the seller has agreed on or before acceptance of the buyer’s order to waive the requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 30 days after sight of the order of the Seller at such bank as may be specified on the bill of exchange.
13. GENERAL
13.1 The Buyer shall not be entitled to assign the whole or any part of the Contract without the prior written consent of the Seller.
13.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.3 If any provision of these Condition is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby unless such provisions goes to the root of the Contract.
13.4 The conditions shall constitute the entire agreement in relation to the subject matter and no modification or waiver thereof shall be valid unless made in Writing expressly for the purpose and signed by an authorized officer of the Seller and of the Buyer provided that nothing in these conditions shall exclude or limit liability for fraud.
13.5 The contract shall be governed by the laws applicable in the Emirates of Dubai and the Buyer agrees to submit the non-exclusive jurisdiction of the Dubai courts.
