Terms and Conditions
OFFER, CONFIRMATION OR AGREEMENT
These terms and conditions of commercial sale of United IndustrialInvestments Company Limited (the “Terms and Conditions”) apply to andform an integral part of all quotations and offers made by UnitedIndustrial Investments Company Limited (“UNIVEST”), all acceptances,acknowledgements and confirmations by UNIVEST of any orders by Buyerand any agreements (“Agreements”) regarding the sale by UNIVEST andpurchase by Buyer of goods and services (“Products”), unless and to theextent UNIVEST explicitly agrees otherwise.Any terms and conditions set forth on any document or documentsissued by Buyer either before or after issuance of any document byUNIVEST setting forth or referring to these Terms and Conditions arehereby explicitly rejected and disregarded by UNIVEST, and any suchterms shall be wholly inapplicable to any sale made by UNIVEST to Buyerand shall not be binding in any way on UNIVEST. UNIVEST’s offers areopen for acceptance within the period stated by UNIVEST in the offer or,when no period is stated, within thirty (30) days from the date of theoffer, but any offer may be withdrawn or revoked by UNIVEST at any timeprior to the receipt by UNIVEST of Buyer’s acceptance thereof.
PRICING
Prices in any offer, confirmation or Agreement are in Saudi Riyals, basedon delivery Ex Works (INCOTERMS latest version) at UNIVEST Riyadhwarehouse, unless agreed otherwise in writing between Buyer andUNIVEST and do not include any taxes, duties or similar levies, now orhereafter enacted, applicable to the Products or any other expenses.UNIVEST will add taxes, duties and similar levies to the sales price whereUNIVEST is required or enabled by law to pay or collect them includingthe Value Added Tax (VAT) and these will be paid by Buyer together withthe price.
PAYMENT
a) Unless agreed otherwise between UNIVEST and Buyer in writing, UNIVEST may invoice Buyer for the price of the Products delivered upondelivery of the Products in accordance with the applicable INCOTERM. Payment terms 20% down payment and 80% by Letter of Credit (LC) within 90 days maximum from date of invoice unless agreed otherwise between UNIVEST and Buyer in writing. All payments shall be made to thedesignated UNIVEST address. If deliveries are made in installments, eachinstallment may be separately invoiced and shall be paid for when due.No discount is allowed for early payment unless agreed to in writing byUNIVEST. b) All deliveries of Products agreed to by UNIVEST shall at all times besubject to credit approval of UNIVEST. If, in UNIVEST’s judgment, Buyer’sfinancial condition at any time does not justify production or delivery ofProducts on the above payment terms, UNIVEST may require full orpartial payment in advance or other payment terms as a condition todelivery, and UNIVEST may suspend, delay or cancel any credit, deliveryor any other performance by UNIVEST. c) In the event of any default by Buyer in the payment of any fees orcharges due, or any other default by Buyer, UNIVEST shall have the rightto refuse performance and/or delivery of any Products until payments arebrought current and UNIVEST may suspend, delay or cancel any credit,delivery or any other performance by UNIVEST. Such right shall be inaddition to, and not in lieu of, any other rights and remedies availableunder the Agreement or at law.
DELIVERY AND QUANTITIES
a) Products shall be delivered Ex Works (EXW) (INCOTERMS latestversion) at UNIVEST Riyadh warehouse as designated by UNIVEST, unlessotherwise agreed in writing. UNIVEST can still deliver the products tocustomers’ premises at cost as stated in UNIVEST relevant quotations.b) Delivery dates communicated or acknowledged by UNIVEST areapproximate only, and UNIVEST shall not be liable for, nor shall UNIVESTbe in breach of its obligations to Buyer, for any delivery made within areasonable time before or after the communicated delivery date.UNIVEST agrees to use commercially reasonable efforts to meet thedelivery dates communicated or acknowledged by it on the condition thatBuyer provides all necessary order and delivery information sufficientlyprior to the such delivery date.c) If the buyer has an overdue payment, UNIVEST would not be able tosupply the delivery as per agreed schedule till the buyer clears the overduepayment and delivery schedule shall be extended accordingly.d) The Buyer can request to hold the products for a maximum of threemonths from the agreed delivery date. Any additional period shall becharged to customer as per written notice from UNIVEST.e) Buyer will give UNIVEST written notice of failure to deliver and thirty(30) days within which to cure. If UNIVEST does not deliver within suchthirty (30) days period, Buyer's sole and exclusive remedy is to cancel theaffected and undelivered portions of the related Agreement.f) Title in the Products shall pass to Buyer upon payment in full of thepurchase price, including any expenses in respect thereof and (to theextent permitted by applicable Law), payment in full of any other ProductsBuyer has ordered and/or payment of any claim in connection with orarising out of the Agreement. Until title in the Products has passed toBuyer, Buyer shall not assimilate, transfer or pledge any of the Products, orgrant any right or title in the Products to any third party, except in the eventsuch right or title is granted in normal course of business. Buyer shallensure that the Products remain identifiable as Products obtained fromUNIVEST. Buyer shall at all times grant UNIVEST (or its representative) freeaccess to the location where Buyer has stored the Products. In the eventBuyer does not fulfill its payment obligations towards UNIVEST, or givesreason to believe that it will not fulfill any or part of its paymentobligations, Buyer is obliged at UNIVEST’s request to return to UNIVEST, atBuyer’s cost, the Products in which the title has not yet passed and Buyeragrees to fully cooperate with UNIVEST in order to enable UNIVEST (or itsrepresentative) to collect its Products. Risk of loss in the Products shall passto Buyer upon UNIVEST's delivery in accordance with the applicableINCOTERMS.g) If Buyer fails to take delivery of Products ordered, then UNIVEST maydeliver the Products in consignment at Buyer’s cost.h) In the event UNIVEST’s production is curtailed for any reason,UNIVEST shall have the right to allocate its available production andProducts, in its sole discretion, among its various customers and as a resultmay sell and deliver to Buyer fewer Products than specified in theAgreement, as the case may be, without being responsible or liable toBuyer for any damage resulting therefrom.
FORCE MAJEURE
UNIVEST shall not be liable for any failure or delay in performance if:I. such failure or delay results from interruptions in the Productmanufacturing process; orII. Such failure or delay is caused by Force Majeure as defined belowand/or by (case) law.In case of such a failure as set forth above, the performance of the relevantpart(s) of the Agreement will be suspended for the period such failurecontinues, without UNIVEST being responsible or liable to Buyer for anydamage resulting therefrom.The expression "Force Majeure" shall mean and include anycircumstances or occurrences beyond UNIVEST's reasonable control -whether or not foreseeable at the time of the Agreement - as a result ofwhich UNIVEST cannot reasonably be required to execute its obligationsincluding force majeure and/or default by one of UNIVEST’s suppliers. Inthe event that the Force Majeure extends for a period of three (3)consecutive months (or in the event that the delay is reasonably expectedby UNIVEST to extend for a period of three (3) consecutive months),UNIVEST shall be entitled to cancel all or any part of the Agreementwithout any liability towards Buyer.
RIGHTS IN DOCUMENTATION AND INTELLECTUAL PROPERTY
Subject to the provisions set forth herein, the sale by UNIVEST of anygoods implies the non-exclusive and non-transferable limited license toBuyer under any of UNIVEST’s and/or its affiliates’ intellectual propertyrights ("UNIVEST's IPR") used in the goods to use and resell the goods assold by UNIVEST to Buyer.To the extent that documentation is embedded in or delivered with anygoods sold by UNIVEST to Buyer, the sale of such goods shall notconstitute the transfer of ownership rights or title in documentation toBuyer, but, subject to the provisions set forth herein, shall only imply anon-exclusive and non-transferable license to Buyer under UNIVEST IPRused in the documentation in conjunction with and as embedded in ordelivered with the goods as supplied by UNIVEST to Buyer.Notwithstanding anything to the contrary herein, these Terms andConditions shall not be construed as conferring any right, license orimmunity, either directly or by implication, estoppel or otherwise toBuyer or any third party under any UNIVEST IPR or intellectual propertyrights of any third party other than explicitly granted under these Terms
LIMITED WARRANTY AND DISCLAIMER
a) UNIVEST warrants that under normal use in accordance with theapplicable product sheet provided by UNIVEST, the Products shall, at thetime of delivery to Buyer and for a period of twelve (12) months from thedate of delivery (or such other period as may be agreed upon in writingby the parties, or as communicated in writing at sale by UNIVEST, be freefrom defects in material and shall substantially conform to UNIVEST’sspecifications for such Product, or such other specifications as UNIVESThas agreed to in writing, as applicable. Labor costs are excluded from thiswarranty. UNIVEST’s sole and exclusive obligation, and Buyer’s sole andexclusive right, with respect to claims under this warranty shall belimited, at UNIVEST’s option, to (1) provide a replacement of thedefective or non-conforming Product or (2) to an appropriate credit forthe purchase price thereof. UNIVEST will have a reasonable time toreplace or credit. UNIVEST is entitled at its option to replace the defectiveor non-conforming Product(s) with a product that is equivalent orcomparable in specifications not affecting the functionality of the agreedProduct(s). The non-conforming or defective Products shall becomeUNIVEST's property as soon as they have been replaced or credited.b) Buyer may ship Products returned under warranty to UNIVEST’sdesignated facility only in conformance with UNIVEST’s then-currentreturn material authorization policy. Where a warranty claim is justified,UNIVEST will pay for freight expenses. Buyer shall pay for returnedproducts that are not found to be defective or non-conforming togetherwith the freight, testing and handling costs associated therewith.c) Notwithstanding the foregoing, UNIVEST shall have no obligationsunder warranty if the alleged defect or non-conformance is found to haveoccurred as a result of environmental or stress testing, misuse, use otherthan as set forth in the applicable product sheet provided by UNIVEST,improper application, neglect, or accident, or as a result of improperrepair, touch up, adjustment, modification, storage, transportation orimproper handling.d) Subject to the applicable mandatory law, the express warranty grantedabove shall extend directly to Buyer only and not to Buyer’s customers,agents or representatives and is in lieu of all other warranties, whetherexpress or implied, including without limitation any implied warranties offitness for a particular purpose, merchantability, or non-infringement ofintellectual property rights. All other warranties are hereby specificallydisclaimed by UNIVEST.e) Subject to the exclusions and limitations set forth in Section 9 of theTerms and Conditions, the foregoing states the entire liability of UNIVESTand its affiliates in connection with defective or non-conforming Productssupplied hereunder.
INTELLECTUAL PROPERTY RIGHTS INDEMNITY
a) UNIVEST, at its sole expense, shall: (i) defend any legal proceedingbrought by a third party against Buyer to the extent that the proceedingincludes a claim that any Product as furnished by UNIVEST under anAgreement directly infringes the claimant’s patent, copyright, trademark,or trade secret; and (ii) hold Buyer harmless against damages and costsawarded by final judgment in such proceeding to the extent directly andsolely attributable to such infringement.b) UNIVEST shall have no obligation or liability to Buyer under Section(a) ifUNIVEST is not: (i) promptly notified in writing of any such claim; (ii) giventhe sole right to control and direct the investigation, preparation, defenseand settlement of such claim, including the selection of counsel; and (iii)given full reasonable assistance and cooperation by Buyer in suchinvestigation, preparation, settlement and defense;(1) If the claim is made after a period of three (3) years from the date ofdelivery of the Product.(2) to the extent that any such claim arises from: (i) modification of theProduct If the claim of infringement would have been avoided by use ofthe unmodified Product; or (ii) Design, specifications or instructionsfurnished by Buyer;(3) to the extent the claim is based directly or indirectly upon the quantityor value of products manufactured by means of the Product or upon thefrequency of use or the amount of use of the Product irrespective ofwhether such claim alleges that the Product as such, or its use, infringesor contributes to the infringement of any intellectual property rights of theclaimant;(4) for unauthorized use or distribution of the Product or use beyond thespecifications of the Product;(5) to the extent any such claim arises from Buyer's manufacture, use,sale, offer for sale, importation or other disposition or promotion of theProduct after UNIVEST’s notice to Buyer that Buyer should cease any suchactivity, provided such notice shall only be given if the Product is, or inUNIVEST’s opinion is likely to become, the subject of such a claim ofinfringement;(6) for any costs or expenses incurred by Buyer without UNIVEST’s priorwritten consent;(7) to the extent any such claim arises from any infringement or allegedinfringement of third party's intellectual property rights covering astandard set by a standard setting body and/or agreed between at leasttwo companies,(8) for infringement of any third party's intellectual property rightscovering the manufacture, testing or application of any assembly, circuit,combination, method or process in which the Product may have beenused, or(9) for infringement of any third party's intellectual property rights withrespect to which UNIVEST or any of its affiliates has informed Buyer or haspublished (in a datasheet or other specifications concerning the Productor elsewhere) a statement, that a separate license has to be obtained.For such claims of infringements referred to in this Section 8(b), Buyer shallindemnify UNIVEST and its affiliates against and hold them harmless fromany damages or costs arising from or connected with such claims and shallreimburse all costs incurred by UNIVEST and its affiliates in defending anyclaim, demand, suit or proceeding for such infringement, providedUNIVEST gives Buyer prompt notice in writing of any such suit orproceeding for infringement.c) If any Product is, or in UNIVEST’s’ opinion is likely to become, the subjectof a claim of infringement as referred to under Section 8 (a) above or ifUNIVEST receives from a third party claiming infringement of third partyIPR in relation to any of the Products, UNIVEST shall have the right, withoutobligation or liability and at its sole option, to: (i) procure for Buyer theright to continue to use or sell the Product; (ii) provide replacementProduct with a non-infringing product, or (iii) modify the Product in such away as to make the modified Product non-infringing; or (iv) repurchasesuch Product from the Buyer for the initial price paid by Buyer lessreasonable depreciation; or (v) suspend or discontinue supplies to Buyerof the Products or parts to which such notice relates or (vi) terminate anyAgreement to the extent related to such Product.d) Subject to the exclusions and limitations set forth in Section 9 of theTerms and Conditions, the foregoing states UNIVEST’s entire liability andobligation to Buyer and Buyer’s sole remedy with respect to any actual oralleged infringement of any intellectual property rights or any otherproprietary rights of any kind.
LIMITATION OF LIABILITY
a) UNIVEST shall not be liable for any lost profits, lost savings, loss ofreputation, loss of goodwill, indirect incidental, punitive, special orconsequential damages arising of out of in connection with theagreement or the sale of any products or services by UNIVEST or the usethereof whether or not such damage are based on tort, warranty,contract or any other legal theory - even if UNIVEST has been advised, oris aware, of the possibility of such damages.b) UNIVEST’s aggregate two cumulative liability towards buyer under anyagreement shall not exceed an amount of ten percent (10%) of therelated agreement.c) Any Buyer’s claim for damages must be brought by Buyer within thirty(30) days of the date of the invoice giving rise to any such claim, and anylawsuit relative to any such claim must be filed within one (1) year of thedate of the claim. Any claims that have been brought or filed not inaccordance with the preceding sentence are null and void.d) Unless otherwise stated, UNIVEST reserves the right to alter or phaseout the Paint products and/or components without prior notice andwould propose alternative product with the same performance.e) The limitations and exclusions set forth above in this Section 9 shallapply only to the extent permitted by applicable mandatory law.
CANCELLATION AND RETURNS OF ORDERS
a) Cancellation of confirmed orders or returns of sold products will notbe acceptable. However, in exceptional cases where the cancellation orreturn is inevitable, the Buyer shall be obliged to pay cancellation/returnfees amounting to 15% of the order value or 15% of the cancelled portionthereof.b) Cancellation or returns of special Paint products modified as perBuyer’s request shall be studied on a case-to-case basis to assess thepossibility of accepting back the products into stock and partially refundthe Buyer.c) Returns shall be considered for acceptance only for products whichare in good condition, within the expiry date and with original packing,otherwise the Buyer shall bear any additional costs for repair and/orrepacking.
CONFIDENTIALITY
Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by UNIVEST and/or its affiliates is the confidential information of UNIVEST and/or its affiliates. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
EXPORT/IMPORT CONTROLS
Buyer understands that certain transactions of UNIVEST are subject toexport control laws and regulations, including but not limited to the UN,EU and the USA export control laws and regulations (“ExportRegulations”), which prohibit export or diversion of certain products andtechnology to certain countries. Any and all obligations of UNIVEST toexport, re-export or transfer Products as well as any technical assistance,training, investments, financial assistance, financing and brokering will besubject in all respects to such Export Regulations and will from time totime govern the license and delivery of Products and technology abroadby persons subject to the jurisdiction of the relevant authoritiesresponsible for such Export Regulations. If the delivery of products,services and/or documentation is subject to the granting of an export orimport license by certain governmental authorities or otherwiserestricted or prohibited due to export/import control regulations,UNIVEST may suspend its obligations and the Buyer's/end-user's rightsuntil such license is granted or for the duration of such restrictions orprohibitions. Furthermore, UNIVEST may even terminate the relevantorder in all cases without incurring any liability towards the Buyer or end-user.Buyer warrants that it will comply in all respects with the export, re-exportand transfer restrictions set forth in such Export Regulations or in exportlicenses (if any) for every Product supplied to Buyer. Buyer accepts theresponsibility to impose all export control restrictions to any third party ifthe items are transferred or re- exported to third parties. Buyer shall takeall actions that may be reasonably necessary to ensure that nocustomer/purchaser or end-user contravenes such Export Regulations.Buyer shall indemnify UNIVEST against any and all direct, indirect andpunitive damages, loss, costs (including attorney’s fees and costs) andother liability arising from claims resulting from Buyer's or its customers’breach or non-compliance with this article.Buyer acknowledges that the obligations contained in this Agreement shallsurvive the termination of any agreement of other arrangement underwhich the products was provided to Buyer. In addition, in the event of anyconflict in the terms provided in this Agreement with any other documententered into between Buyer and UNIVEST, Buyer understands that theterms of this Agreement shall control and be binding upon Buyer.
ASSIGNMENT AND SETOFF
Buyer shall not assign any rights or obligations under the Agreement without the prior written consent of UNIVEST. Buyer shall have no right to withhold or reduce any payments or to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Buyer may have with UNIVEST or any of its affiliates may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf.
ANTI BRIBERY
Buyer agrees that it now and in future shall comply with national law onprevention of bribery, as well as any other law transforming fromratification of the OECD Convention on Combating Bribery of ForeignPublic Officials in International Business Transactions (including the USForeign Corrupt Practices Act). In general, the law makes it illegal to bribeor make a corrupt payment to an Official for the purpose of obtaining orretaining business, directing business to any person, or securing anyimproper advantage.Buyer’s failure to comply with any provision of this section is grounds forimmediate termination of any Agreement by UNIVEST (or its respectiveaffiliate(s)), without UNIVEST’s incurring any liability towards Buyer. Inthe event of such termination, (i) UNIVEST shall be under no obligationto supply any Product to Buyer, (ii) Buyer shall be responsible for andindemnify UNIVEST for any damages, claims, penalties or other losses(including attorneys’ fees) that may be asserted against or incurred byUNIVEST as a result of Buyer’s breach of this section; and (iii) UNIVESTshall be entitled to any other remedies available at law or in equity. Theterms and conditions of this section shall survive any expiration ortermination of this Agreement.UNIVEST will only do business with those companies that respect thelaw and adhere to ethical standards and principles. Should UNIVESTreceive any information to the contrary,UNIVEST will inform and Buyer agrees to cooperate and providewhatever information is necessary to allow UNIVEST to decide whetherthere is any basis to any allegation received and whether the Agreementshould continue. Such information includes, but is not limited to, books,records, documents, or other files.
GOVERNING LAW AND FORUM
All offers, confirmations and Agreements are governed by and construed in accordance with the laws of the Kingdom of Saudi Arabia. All disputes arising out of or in connection with any Agreement shall first be attempted by Buyer and UNIVEST to be settled through consultation and negotiation in good faith in a spirit of mutual cooperation. All disputes which cannot be resolved amicably shall be submitted to the exclusive jurisdiction of the competent courts of Riyadh, Kingdom of Saudi Arabia.
BREACH AND TERMINATION
Without prejudice to any rights or remedies UNIVEST may have under theAgreement or at law, UNIVEST may, by written notice to Buyer, terminatewith immediate effect the Agreement or any part thereof without anyliability whatsoever, if:(a) Buyer violates or breaches any of the provisions of the Agreement;(b) any proceedings in insolvency, bankruptcy (including reorganization)liquidation or winding up are instituted against Buyer, whether filed orinstituted by Buyer, voluntary or involuntary, a trustee or receiver isappointed over Buyer, or any assignment is made for the benefit ofcreditors of Buyer; or(c) The control or ownership of Buyer changes.(d) Upon occurrence of any of the events referred to above, all paymentsto be made by Buyer under the Agreement shall become immediately dueand payable. In the event of cancellation, termination or expiration of anAgreement, the terms and conditions destined to survive suchcancellation, termination or expiration shall so survive.
ORDER OF PRECEDENCE
These Terms and Conditions of Commercial Sale shall have precedence andbe applicable to all requests for quotations, purchase orders or otheragreements between UNIVEST and second parties and shall beincorporated by reference in any PO or agreement unless expressly waivedin writing. The conclusion and coming into effect of any PO or agreementfor Sales Activities (either through the execution of a Project or issuance ofa Purchase Order) is subject to the condition precedent of inclusion of therespective Terms and Conditions of Commercial Sale and, whereapplicable, the prior written approval of UNIVEST.