APTEC DISTRIBUTION FZ LLC
Standard Terms and Conditions of
Sale
1. Definitions
“Customer” means
the party with whom Aptec
Distribution may enter into an
agreement for the supply of Products
and Services;
“Aptec Distribution”
means Aptec Distribution FZ LLC, a
limited liability Company
incorporated in the Dubai Internet
City Free Zone, or Aptec
Distribution LLC, a limited
liability Company incorporated under
the UAE Federal Commercial Companies
Law, as may be determined from the
invoice issued to the Customer in
respect of the Products and Services
in question;
“Products & Services”
means goods (including but not
limited to Computer hardware and
software) and services to be
provided by Aptec Distribution to
its Customers under these Terms and
Conditions;
“Force Majeure” means
any event or circumstance beyond the
reasonable control of Aptec
Distribution, by reason of which
Aptec Distribution is prevented or
delayed from delivering Products &
Services, including act of God, and
other unpredictable events such as
war, events similar to war,
instructions by government,
non-permission of export, import or
transit permissions, national
measures to limit trade traffic,
strike, lockout and any other
interruptions, traffic jams, no
matter whether these events occur at
or affect Aptec Distribution, its
suppliers, contractors, its
subcontractors, or any other third
party on which Aptec Distribution
relies from time to time.
2. Validity of Terms
2.1 These Terms apply to all
orders, quotations and sale of
Products & Services by Aptec
Distribution to any Customer or
potential Customer and (in the
absence of express provisions to the
contrary), to all future
transactions involving Aptec
Distribution and an existing
Customer, to the exclusion of all
other terms and conditions asserted
or proposed by any Customer, whether
expressly or by implication, and
whether or not the same are
expressly rejected by Aptec
Distribution.
2.2 Acceptance of Products &
Services by Customer shall
constitute acceptance of these Terms
and Conditions.
2.3 No amendment or modification
of these Terms and Conditions shall
be effective unless confirmed in
writing by the General Manager of
Aptec Distribution or, in relation
to Clause 11.1 below, the Financial
Controller of Aptec Distribution.
3. Offer and order acceptance
3.1 All offers and quotations by
Aptec Distribution and proposed
business arrangements are for
information only and shall not be
binding. Acceptance of orders is
subject to Aptec Distribution’s
written order confirmation, or in
the case of immediate delivery,
Aptec Distribution’s invoice.
3.2 Modification or waiver by
Aptec Distribution of any
contractual provision in respect of
one order or transaction shall not
constitute modification or waiver in
respect of any future orders or
transactions.
3.3 Unless expressly marked as
binding in writing by Aptec
Distribution, all drawings, designs,
illustrations, features,
specifications and particulars of
dimensions and weights and other
such information submitted by Aptec
Distribution are approximate only.
3.4 Aptec Distribution shall have
full discretion in accepting or
rejecting any order.
4. Prices
4.1 Unless otherwise specified,
Aptec Distribution’s quoted prices
offered from time to time shall
serve, for a period of seven (7)
calendar days thereafter, as an
indicative basis for evaluation and
negotiation. However, subject to the
other provisions of this Clause 4,
the definitive and binding price
shall be that stated in Aptec
Distribution’s order confirmation.
4.2 Notwithstanding any price
stated in Aptec Distribution’s order
confirmation, price increases due to
monetary fluctuations will apply and
be chargeable to the Customer for
Products & Services not delivered at
the time of such fluctuation. Such
increases will be at the discretion
of Aptec Distribution, but will not
constitute value greater than 50% of
the total order value.
4.3 All prices for Products &
Services are ex warehouse Jebel Ali
Dubai United Arab Emirates. All tax,
packaging, environmental lump
sum/fees, transport, freight,
copyright levies, insurance and
legal charges are for the Customer’s
account and the Customer agrees to
indemnify Aptec Distribution in
respect thereof.
5. Delivery and Performance
Period
5.1 Aptec Distribution will use
all reasonable endeavours to deliver
the goods on or before the agreed
delivery date, however, Aptec
Distribution does not undertake,
guarantee or warrant that delivery
will be made on the agreed delivery
date.
5.2 Delays in delivery and in
performance due to Force Majeure
shall entitle Aptec Distribution
either to postpone the delivery or
service for the period during which
such Force Majeure shall persist
plus an appropriate additional
period necessary to resume the
delivery or service, or (if
performance by Aptec Distribution
has not commenced) to rescind the
contract with the Customer, or (if
such performance has commenced) to
terminate such contract as at the
occurrence of the event or
circumstance of Force Majeure,
without (in any such event) further
obligation or liability to the
Customer.
5.3 If any delivery time is
postponed by more than 3 months,
whether as a result of Force Majeure
or not, the Customer shall be
entitled after granting in written
form an appropriate period of grace
(of at least 14 days) to withdraw
from the contract completely or
partly if it has been partly
performed.
5.4 All liability to the Customer
for delay is excluded, unless the
delay is based on gross negligence
or wilful misconduct of Aptec
Distribution.
5.5 Aptec Distribution is
entitled to deliver the Products &
Services in one or more
consignments. With delivery
contracts each partial delivery and
partial performance shall constitute
independent performance. The period
of delivery shall also be prolonged
by such period as the Customer may
be in default in meeting its
contractual obligations.
5.6 At any time, Aptec
Distribution reserves the right, at
its option, to refuse delivery until
the Customer has made payment for
the Products & Services.
6. Default in Acceptance
6.1 If the Customer refuses or
fails to take delivery of the
Products & Services ordered or is in
delay in payment, Aptec Distribution
shall be entitled to store the
delivery items at the Customer’s
risk and expense until such time as
the Customer resumes acceptance of
delivery or (as the case may be)
resumes timely payment. Until
resumption by the Customer, the
Customer shall pay Aptec
Distribution compensation for
storage expenses at the rate of 2%
per week of the purchase price with
a maximum of AED 5000 per week.
6.2 If the Customer
continues to refuse the acceptance
of delivery items after a period of
grace granted or if it declares
non-acceptance of Products &
Services, Aptec Distribution shall
be entitled (without obligation or
liability to the Customer) to refuse
to fulfil the order and claim
compensation from the Customer for
breach of contract. The Customer
agrees that no refusal to take
delivery of the Products and
Services shall relieve the Customer
of the obligation to pay Aptec
Distribution the full value thereof
on demand and (without prejudice to
the foregoing) the Customer further
agrees that the loss, damage and
disruption caused to Aptec
Distribution by the Customer’s
breach of contract will amount to no
less than 40% of the agreed purchase
price, and agrees that Aptec
Distribution shall be entitled at
its option and without contestation,
to receive such sum from the
Customer by way of compensation.
7. Quantity of Delivery
7.1 Visible differences in
quantity or damage to the Products
must be disclosed in writing to
Aptec Distribution and the carrier
within 48 hours from receipt of the
Products in question. Hidden
differences in quantity must be
similarly disclosed within 4 days
from receipt of the Products.
7.2 Acceptance of the Products by
the carrier or transport agent of
the Customer will constitute
conclusive evidence that the correct
quantity has been supplied and that
the Products in question have been
wrapped and shipped in accordance
with all contractual requirements.
7.3 Should Aptec Distribution
inadvertently deliver Products that
have not been ordered by the
Customer, the Customer undertakes to
notify Aptec Distribution in writing
within 14 days of the erroneous
delivery and to keep the Products
ready for pick-up by a carrier or
forwarding agent to be instructed by
Aptec Distribution. Should the
Customer fail to notify Aptec
Distribution of an erroneous
delivery in writing or do so after
the 14-day period, the Customer
shall be considered for all purposes
to have accepted the delivery and
shall accordingly be obliged to make
prompt payment for such Products in
accordance with Aptec Distribution's
listed prices applicable at the time
of delivery.
8. Transfer of Risk
Risk of loss
and damage shall pass to Customer as
soon as the shipment has been
transferred to the carrier or
forwarding agent instructed by the
Customer or when the shipment leaves Aptec Distribution's warehouse,
whichever shall occur first.
9. Warranty & RMA
9.1 Aptec Distribution warrants
that all Products supplied to the
Customer are fit for their purpose
only in accordance with and to the
extent of, for such period and upon
such terms as may be specified in
the manufacturer's warranty,
provided that no unauthorised
modification to the Products (or to
the system of which the Product
forms part) has taken place.
9.2 In the event that a Product
(being hardware) should prove to be
defective, the maximum entitlement
of the Customer in such event (and
subject to the provisions of Clause
9.1 above) will be that such Product
will be repaired or replaced.
9.3 In the event that a
Product (being software) should
prove to be defective, the Customer
accepts that such Product has been
supplied and accepted on an "as-is"
basis. Accordingly, it is agreed
that Aptec Distribution's maximum
liability in respect thereof (and
subject to the provisions of Clause
9.1 above) is to use all reasonable
endeavours to obtain and supply a
corrected version from the
manufacturer concerned provided that
the Customer notifies Aptec
Distribution of such defect within
90 days of the date of delivery
thereof to the Customer.
9.4 Under no circumstances shall
the Customer be entitled to deduct
or set off the value of Products
rejected by the Customer as faulty,
in the absence of a credit note
issued by the Aptec Distribution.
9.5 Except as expressly set out
in these Terms and Conditions, Aptec
Distribution disclaims and excludes
all other warranties, whether
express or implied by statute or
otherwise, including but not limited
to warranties of description,
design, merchantability and fitness
for a particular purpose, or arising
from any previous course of dealing,
customer or trade practice. Aptec
Distribution further disclaims and
excludes all liability to the
Customer for special, indirect, or
consequential damage including but
not limited to loss of profits or
arising from loss of data in
connection with the use of the
Products or provision of the
Services, and the Customer hereby
agrees to indemnify, hold harmless
and defend Aptec Distribution in
respect thereof.
10. Retention of Title
10.1 Aptec Distribution shall
retain title of Products and
Services until it has received
payment in full of all sums due in
connection with the supply or
provision thereof to the Customer.
10.2 If any Products are attached
to, mixed or incorporated with other
Products not owned by Aptec
Distribution and are not
identifiable or separable from the
resulting composite or mixed
Products then title to the resulting
composite or mixed Products shall
vest in Aptec Distribution (on the
basis of co-ownership with other
owners in the proportion which the
stated value of the Products bears
to the stated value of the whole)
and shall be retained by Aptec
Distribution as long as and on the
same terms on which it would have
retained title to the Products in
question.
10.3 The Customer shall store
Products owned by Aptec Distribution
in such a way that they are clearly
identifiable as Aptec Distribution
property and shall maintain records
identifying them as Aptec
Distribution property.
10.4 In the event of failure or
delay by the Customer in making
payment, or if the Customer is the
subject of bankruptcy or equivalent
proceedings, or makes composition
with its creditors, Aptec
Distribution shall be entitled (but
not obliged) to withhold delivery of
any undelivered Products and stop
Products in transit and recover
possession of Products already
delivered and unpaid for.
Alternatively, Aptec Distribution
shall be entitled (but not obliged)
to reaffirm the contract for supply
of the Products & Services and to
require the Customer to pay for
Products in transit.
11. Payment
11.1 All invoices shall be
payable in the manner described in
the Payment Terms Confirmation
provided by Aptec Distribution to
the Customer except as may be
notified to the contrary by Aptec
Distribution's Financial Controller.
If so required by the Customer,
Aptec Distribution may undertake to
(but shall not be obliged to)
provide carriage and insurance at
rates and charges to be agreed and
to be charged separately. Unless and
until such agreement is recorded in
writing, the arranging of carriage
and insurance shall remain the
responsibility of the Customer.
11.2 Notwithstanding any
provision to the contrary, including
any provision in documentation
emanating from the Customer, Aptec
Distribution shall be entitled to
book payments against earliest
invoices, then against interest
accrued, and finally against the
current transaction for supply of
Products & Services.
11.3 If the Customer is in
default of its obligations to make
timely payments, interest shall
accrue on the amount(s) outstanding
at the rate of 3% above the LIBOR
rate prevailing during the period of
delay. At its own discretion, Aptec
Distribution shall have the right to
determine, adjust or refuse a credit
line at any time. If a Customer
exceeds his credit line at any time,
Aptec Distribution shall have no
obligation to continue to deliver
any Products & Services until such
time as the Customer rectifies its
credit standing or elects to proceed
on a cash payment basis for the
transaction in question.
12. Limitations on Liability
Except as may be expressly provided
elsewhere in these Terms and
Conditions, neither Aptec
Distribution nor any of its
servants, agents, officers,
employees, suppliers or contractors
shall be liable to the Customer for
any loss or damage sustained as a
result of breach of contract.
13. Trademarks
All trademarks on
or relating to the Products &
Services are and remain intellectual
property of the respective
manufacturer and/or supplier. For
the use of these trademarks prior
written approval of the respective
manufacturer and/or supplier is
required. All use and delivery of
software is subject to the license
agreement accompanying the Products
& Services.
14. Copyrights
All intellectual
property rights other than trademark
rights (including for the avoidance
of doubt but not limited to any
title or ownership rights,
copyrights, patent rights and trade
secret rights) in or relating to the
Products & Services supplied to Aptec Distribution by third party
owners or suppliers for onward sale
or supply by Aptec Distribution to
the Customer shall at all times and
for all purposes vest and remain
vested in such third party owners or
suppliers. The Products & Services
in question are supplied to the
Customer by Aptec Distribution
subject to the foregoing rights and
subject to the applicable licence in
respect thereof. Except as may be
provided in such licence, the
Products & Services are supplied to
the Customer for the purpose of
onetime re-selling and to the end
customer for exclusive use
(excluding for the avoidance of
doubt any rights to make copies or
to grant user rights to any third
party), and no title to or ownership
of the Products & Services is
conferred by virtue of these Terms
and Conditions. The Customer hereby
acknowledges that it is the
Customer's sole responsibility to
comply with any terms of such
licence and that failure to do so
could result in the Customer being
refused further supplies of such
Products & Services. Accordingly,
the Customer hereby further agrees
to indemnify Aptec Distribution in
respect of any costs, charges of
expenses incurred by Aptec
Distribution in any claim or legal
action involving such third party,
owner or supplier as a result of any
breach of any of such terms and
conditions by the Customer.
15. Data Protection
The Customer authorises Aptec Distribution to
process data concerning the Customer
received in relation to their mutual
relationship, to the same extent as
if governed by English Law.
16. Confidentiality
During the
course of the business relationship
or at any time after the termination
thereof, Customer shall not disclose
or use any business or company
secrets or other confidential
information relating to Aptec
Distribution, its parent or
affiliated companies. Customer
agrees that such information will
only be communicated to those
members of its staff whose knowledge
of such information is essential and
will bind these members of its staff
to confidentiality.
17. Export
All products, spares,
technical data, software and
documentation may be subject to
export and import laws, rules and
regulations including but not
limited to those of the United Arab
Emirates, the United States of
America and the country of import.
In the event Customer exports the
Product outside the United Arab
Emirates, the Customer shall comply
with all applicable export and
import rules and regulations and
obtain all applicable licenses, and
indemnify Aptec Distribution from
and against all loss and damage
sustained as a result of the
Customer's failure or delay in doing
so. In line with Export / Trade
Compliance checks that may need to
be undertaken by Aptec Distribution
when implementing Manufacture Export
Compliance Policies. Aptec reserves
the right to cancel / terminate any
contracts with customers failing
these checks.
18. Governing Law
These Terms and
Condition shall be governed by and
construed in accordance with the
laws of Dubai in the United Arab
Emirates. If any of these Terms and
Conditions are declared invalid or
unenforceable, the validity of other
provisions shall be unaffected and Aptec Distribution and the Customer
shall agree to enter into
negotiations with the aim of
substituting or amending the invalid
or unenforceable provision with a
new provision that approximates the
economic purpose of the intended
provision.
19. Marketing Activities
The Customer expressly consents to
receiving advertisement from Aptec
Distribution by telefax or e-mail
without requirement for prior
request.
