These terms and conditions govern the sale of the goods (hereinafter “Goods”) supplied by Sysco Guest Supply Europe Goods Wholesalers L.L.C (hereinafter “Seller”), its affiliates as well as any third-party vendors or service providers of the Seller. These terms and conditions (hereinafter “Terms”) take precedence over the buyer’s supplemental or conflicting terms and conditions. Neither the Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of the buyer’s supplemental or conflicting terms and conditions. The buyer’s acceptance of the Goods shall be deemed to constitute acceptance of these Terms.
In these Terms, the following words have the following meanings ascribed to them:
“Buyer”: means the individual or company who purchases or agrees to purchase Goods from the Seller;
“Goods”: means the products (including any instalment of the Goods or any parts for them) which the Seller will supply to the Buyer in accordance with these Terms;
“Order”: means any order of Goods placed by the Buyer and to be delivered by the Seller;
“Parties”: means both the Buyer and the Seller;
“Price(s)” means the price of the Goods;
“Seller”: means Sysco Guest Supply Europe Goods Wholesalers L.L.C whose registered office is at Office 1802, Concord Tower, King Salman Bin Abdulaziz Al Saud Street, Al Sufouh 2, Jumeirah, Dubai, United Arab Emirates.
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2.
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General Provisions
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2.1
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Subject to the other conditions, any tenders or quotations submitted to the Buyer shall remain valid for the period stated therein, but if no period is specified such tenders and quotations shall be valid for 30 days from the date thereof. All tenders and quotations shall be subject to these Terms.
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2.2
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Any tenders or quotations will not constitute an offer and an agreement between the Buyer and the Seller shall be made only upon the Seller’s acknowledgement of the order placed by the Buyer.
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2.3
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Return of any Goods shall be subject to the Seller’s final approval. Goods returned under warranty must be properly packed and shipped to Seller specified locations. The Buyer will be responsible for all costs and expenses associated with any return of Goods and will bear the risk of loss or damage of all returned Goods.
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2.4
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The Seller, in its sole discretion, may reject any return of Goods not approved by the Seller.
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2.5
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In the event of a written agreement between the Seller and the Buyer, the Buyer shall must ensure to bring forth any discrepancies to the Seller’s notice immediately, and if the Buyer fails to do so, the Buyer shall, if the Seller so elects, be bound by the details contained in the written agreement.
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2.6
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The Seller may at any time without notifying the Buyer make changes to specifications of the Goods which are required so that the Goods conform with any applicable statutory local or European Union requirement, provided that any such changes shall not materially affect the performance of the Goods.
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3.
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Price and Terms of Payment
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3.1
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Prices and any other information shown in any of the Seller’s publications including, without limitation, product catalogues, brochures, electronic price lists or provided by the Seller verbally are subject to change without notice and to written confirmation by the Seller.
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3.2
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The Buyer agrees and acknowledges the following:
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i. the Seller has the absolute right and discretion to determine the Prices of the Goods;
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ii. the Prices exclude any and all associated taxes or government charges, including without limitation, value added tax, sales tax, use tax, excise tax, customs charges or otherwise. Such charges shall be the responsibility of the Buyer;
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iii. the Prices quoted by the Seller to the Buyer include the cost of standard delivery where the total order meets the advised minimum order value; and
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iv. in the event that the Seller is required to deliver the Goods on any basis other than our standard delivery terms, unless any specific fee or charge is agreed by the Buyer with the Seller, the Seller reserves the right to charge a reasonable fee to the Buyer for the cost of any carriage and/or other expenses incurred by the Seller in relation to the delivery of the Goods (hereinafter “Additional Charges”).
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3.3
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The Seller may increase the Prices in the event of an increase in the Seller’s costs, a change in market conditions or any other cause beyond the Seller’s reasonable control.
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3.4
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The Buyer must pay for the goods by bank transfer. Our prices are set in Arab Emirates Dirhams (hereinafter “AED”) and US Dollars (hereinafter “USD”) and therefore the Buyer will be charged in either AED or USD as agreed on the Seller’s quotation or tender. The payment must be made in the same currency as the Seller’s invoice. If payment is made in any other currency, the Buyer will be liable for any exchange rate losses arising as a result.
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3.5
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Where credit terms are agreed by the Seller, invoices sent to the Buyer must be paid off within thirty (30) days from date of invoice.
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3.6
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In the event of delayed payment by the Buyer, the Seller shall be entitled to a delayed payment penalty of an additional 5% of the invoice amount.
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3.7
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It is the Buyer’s responsibility to ensure that payment is made to Seller’s correct location. The Buyer accepts full liability for misdirected payments.
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3.8
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The Seller shall be entitled to withhold delivery of any Goods agreed to be sold to the Buyer or any instalment thereof until the overdue payment is made in full.
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4.
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Delivery
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4.1
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Delivery dates and times shall be mutually determined by the Seller and the Buyer.
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4.2
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Specified delivery dates and times represent an approximation and shall not constitute a guarantee (hereinafter “Proposed Delivery”). The Seller shall not be held responsible for a failure to fulfil Proposed Delivery obligations.
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4.3
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For orders above the advised minimum order value and being shipped within the United Arab Emirates, delivery shall be included within the Price of the Goods. For orders below the advised minimum order value or being shipped outside of the United Arab Emirates, Prices may be subject to additional freight charges which will be quoted by the Seller to the Buyer following receipt of the Buyer’s Order.
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4.4
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The Buyer agrees and acknowledges the following:
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i. signature on the delivery note, whether by the Buyer or his representative, shall be deemed proof of delivery completion;
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ii. unless otherwise mutually agreed, in writing, delivery terms are DDP (Delivered Duty Paid). The Seller shall, on a best effort basis, endeavour to deliver the Goods within the Proposed Delivery Period. In the event of a failure by the Seller to deliver the Goods within the Proposed Delivery Period, the Seller shall not be deemed to have breached these Terms or have any liability towards the Buyer;
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iii. it must provide accurate details with regards to delivery address and location. In the event of the Buyer providing an incorrect address, or being unable to receive delivery without providing the Seller a twenty-four (24) hour notice in advance, the Buyer shall be responsible for covering any additional costs incurred as a result thereof; and
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iv. the Seller shall not be held liable for any loss, damage, non-delivery or otherwise, caused by any act, default or omission of the Buyer.
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4.5
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The Seller shall be entitled to deliver the Goods in multiple deliveries. Each partial delivery, including the delivery of products for a combined order, may be invoiced separately. In the event of separate invoicing, the Seller shall notify the Buyer of the same.
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4.6
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Failure by the Seller to deliver the Goods, whether in a single or multiple deliveries, or any claim by the Buyer in respect of the Goods delivered in a single or multiple deliveries, shall not entitle the Buyer either to treat these Terms as repudiated or to reject or refuse to receive delivery of any of the Goods delivered in any other instalment.
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4.7
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In the event that the Seller fails to deliver the Goods (or any instalment thereof) for any reason other than any cause beyond the Seller’s 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 cost of the Goods purchased by the Buyer.
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4.8
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In accordance with Clause 4.4 (iii), should the Buyer be unable to receive delivery of the Goods, through no fault of the Seller, or fails to provide the Seller adequate delivery instructions, the Seller may:
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i. temporarily store the Goods until a new delivery is scheduled and reasonably charge the Buyer for all associated costs, including without limitation, insurance (if applicable), storage or otherwise; or
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ii. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses).
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4.9
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No Goods may be returned to the Seller without the prior written consent of the Seller and are subject to a return charge, as determined by the Seller.
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4.10
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If the Goods are not supplied Ex-works, the Buyer shall be ready to accept delivery on the due date and shall promptly unload the Goods. For the avoidance of doubt, the Seller or the Seller’s carrier shall not be held responsible for unloading the Goods. Should the Buyer be unwilling to accept delivery of the Goods, the Seller may impose the following charges on the Buyer:
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i. disregarding the Seller’s efforts by causing unnecessary delays in delivery of the Goods;
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ii. each repeat delivery where the Seller leaves the delivery point and subsequently returns to the delivery point with the Goods; or
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iii. as a result of the Buyer’s inability or unwillingness to unload the Goods.
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5.
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Title and Risk
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5.1
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Risk of loss or damage to the Goods shall pass onto the Buyer at the time of delivery, or if the Buyer fails to receive the delivery, the time when the Seller has tendered delivery of the Goods.
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5.2
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Title to the Goods delivered to the Buyer shall remain with the Seller as security until full payment for such Goods is made by the Buyer. The Buyer shall indemnify the Seller for any loss, liability, expenses, costs and damages relating to or arising from the Goods prior to transfer of the title to the Goods.
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5.3
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Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, title in the Goods shall pass to the Buyer only upon receipt of full payment of the Price of the Goods by the Seller.
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5.4
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Until such time as the title in the Goods passes 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 said party where the Goods are stored and mark identify and repossess the Goods.
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5.5
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The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
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7.
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Representations and Warranties
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7.1
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Subject to these Terms, the Seller warrants to the Buyer that the Goods purchased hereunder will conform to the applicable manufacturer’s specifications for such Goods.
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7.2
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The Seller further warrants that all Goods purchased by the Buyer will be free from any defects, in parts and workmanship, provided that the Buyer uses the Goods under normal operating conditions and in accordance with the Seller’s instructions.
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7.3
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The Buyer must conduct a thorough inspection of the goods immediately upon delivery. Should the buyer discover any defect(s), he must submit to the Seller a written notice of any such alleged defect(s) within seven (7) days of delivery.
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7.4
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Should the Seller determine that any parts or workmanship were defective, the Seller may, at its sole discretion, repair or replace the part or parts at no additional cost to the Buyer.
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7.5
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The Buyer shall not be entitled to reject the Goods where the alleged defect is so slight that it would be deemed unreasonable for the Buyer to reject the Goods.
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7.6
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All descriptions of the Goods, including without limitation, quantity, weight, size, model, specifications or otherwise are estimated descriptions only and shall not be relied on as precise and accurate.
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7.7
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In the event the Buyer claims that there is a shortage in the quantity of Goods delivered, the Buyer shall record the shortage on the delivery note at the time of delivery and inform the Seller within seven (7) days of delivery.
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7.8
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The Buyer’s failure to adhere to the condition set out in Clause 7.7 will void the warranty set forth under this Clause 7 and the Seller shall have no further liability with respect thereto.
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7.9
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Subject as expressly provided in these Terms, the warranty set forth in this Clause 7 is exclusive and in lieu of all other warranties and remedies whatsoever, including but not limited to implied warranties of merchantability and/or fitness for a particular purpose, title and noninfringement. The remedy provided herein as to repair or replacement of parts, subject to the Seller’s absolute discretion, shall be the Buyer’s sole and exclusive remedy under these Terms and is expressly made in substitution of any and all remedies otherwise provided.
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7.10
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In the event of any Goods infringing patent rights, the Buyer shall indemnify and hold harmless the Seller from and against any costs, liabilities, losses, damages, costs and expenses. The Buyer shall inform the Seller of such defect immediately on discovery but in any event within the Warranty Period.
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7.11
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The Seller shall not be held liable for any infringement or claim based upon:
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i. use of the Goods in combination with other equipment not supplied by the Seller;
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ii. use of the Goods in a manner that is inconsistent with the manner intended by the Seller; or
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iii. modifications to the Goods made by Buyer or any other party.
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7.12
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Where a valid claim in respect of the Goods is made by the Buyer, the Seller shall, in its sole discretion, repair or replace the Goods (or the part in question) free of charge or, refund the Price of the Goods to the Buyer and the Seller shall have no further liability to the Buyer.
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7.13
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In the event of any claim being made by the Buyer, the Buyer shall give the Seller a reasonable opportunity to inspect the Goods in the same condition as they were at delivery after discovery of the defect and liability will not be accepted unless this procedure is followed.
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7.14
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The Seller’s liability in connection with the sale of Goods shall be construed as follows:
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i. Physical damage or loss of the Buyer’s tangible property as a result of the Seller’s negligence – the Seller’s liability shall be limited to [AED 7,000,000].
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ii. In respect of all other direct losses (either in contract, tort or otherwise) the Seller’s liability shall not exceed [AED 7,000,000]; and
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iii. In respect of any loss of goodwill or for any type of consequential, special or indirect loss or damage, the Seller shall not be liable towards to the Buyer, its affiliates, representatives, agents or otherwise.
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7.15
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The Seller shall not be liable to the Buyer nor be deemed to be in breach of these Terms by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations hereunder.
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7.16
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The Seller shall have no liability towards the Buyer or any third-party if the Goods have not been paid for by the due date for payment.
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7.17
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Any claim by the Buyer under this Clause 7 whether in respect of any Goods or otherwise shall not entitle the Buyer to withhold or delay payment to the Seller.
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8.
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Insolvency of Buyer
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8.1
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In the event of the following occurring, the Seller, without prejudice to any other right or remedy available to it, shall be entitled to cancel any agreement with the Buyer, suspend deliveries and if any Goods have been delivered but not paid for, all outstanding invoices become payable immediately:
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i. the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or becomes subject to an administrative order or goes into liquidation;
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ii. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
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iii. the Buyer ceases, or threatens to cease, to carry on business; or
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iv. 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.
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9.
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Confidential Information
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9.1
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Any and all information furnished or made available by the Seller to the Buyer in connection with the subject matter of these Terms or shall be held in confidence by the Buyer (hereinafter “Confidential Information”).
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9.2
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The Buyer agrees not to use or disclose the Confidential Information to others without the Seller’s explicit written consent.
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9.3
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The obligations of confidentiality set herein shall not apply to any information which:
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i. at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Buyer of any obligation herein;
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ii. the Buyer can show by written records was in the Buyer’s possession prior to disclosure by the Seller; or
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iii. is legally made available to the Buyer by or through a third-party having no direct or indirect confidentiality obligation to the Seller with respect to such information; or
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iv. The Buyer is required to disclose through any applicable law or the order or ruling of a court or a governmental body of competent jurisdiction.
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9.4
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Unless otherwise agreed to in advance and in writing by the Seller, the Buyer will not use the Confidential Information for any purpose whatsoever other than the specific performance of his duties set herein or disclose the Confidential Information to any third-party.
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9.5
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If the disclosure of Confidential Information is required for the purpose set out in Clause 9.3(iv), then prior to such disclosure the Buyer shall, to the extent practicable, give the Seller prompt advance written notice of the information it proposes to disclose (being the minimum amount of information consistent with satisfying its obligations) and will take into account any reasonable comments the Buyer may have in relation to the content, timing and manner of the disclosure and take such steps as the Buyer may reasonably require to enable them to mitigate the extent of or avoid the requirement of any such disclosure, including, to the extent possible, obtaining assurances as to confidentiality from the body to whom the information is to be disclosed.
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9.6
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The Buyer agrees and acknowledges that because of the valuable nature of the Confidential Information, damages alone are not an adequate remedy for a breach of any provision of these Terms. Therefore, the Buyer agrees that the Seller is, in addition and at its option, entitled to the remedies of injunction, specific performance and other equitable relief for a threatened or actual breach of any provision of these Terms. The Seller shall be entitled to monetary damages of Arab Emirates Dirhams Fifty Thousand [AED 50,000] for a breach by the Buyer or any of its representatives without any need to plead or prove special damages.
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10.
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Intellectual Property
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10.1
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The Buyer acknowledges that the Seller shall own the following, without limitation:
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i. any patents, improvements thereof, patent applications and registrations, inventions (whether patentable or not), invention disclosures and all patent reissues, divisions, renewals, extensions and continuations;
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ii. trademarks, trade names, trade-mark applications and registrations, service marks, domain names, logos and designs;
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iii. copyrights, copyright applications and registrations;
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iv. trade secrets, know-how and other intellectual property;
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v. computer systems and applications software;
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vi. registered and unregistered design rights, including all documentation relating thereto and any modifications or improvements thereof;
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vii. any and/or all previous and future financial gain, revenue, profits, partnership; and
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viii. discovery, innovation, concept or idea or otherwise.
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11.
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Limited Liability
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11.1
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In no event shall the Seller be liable for any special, incidental, punitive, or consequential damages arising out of, connected with, or resulting from any performance of these Terms, regardless of any notice or predictability of such liability. The Seller shall not be held liable for any loss of revenue, profit, commission or any damage caused to the Buyer.
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11.2
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The Buyer forever releases and discharges the Seller from any and all actions, causes of action, suits, liability, penalty, debts, dues, sums of money, damages, claims, counterclaims and demands whatsoever, known or unknown, against the Seller which the Buyer has arising out of or in connection with these Terms.
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11.3
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The Buyer shall not bring, commence, institute, maintain, prosecute or voluntarily aid any claim, appeal, or proceeding which challenges the validity of or seeks to enjoin the operation of any provision of these Terms.
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