1 - Applicable Terms
As used below, “Seller” means The Factory of Methanol Chemicals Company (Chemanol), "Product" means any product sold by Seller, and "Buyer" means the party purchasing any Product from Seller. All sales by Seller to Buyer whether initiated by written purchase order, electronic means, telephone or any other method, will be subject exclusively to the terms and conditions of the set forth herein and if signed written agreement is then in effect between Buyer and Seller and applicable to such sale (a "Sales Agreement"), then any term in the Sales Agreement that conflicts with these terms will apply, and these terms will otherwise apply; or if no Sales Agreement is in effect, these terms, and the Product description and quantity specified in Seller’s quotation to Buyer, collectively will make up Buyer's complete contract with Seller (the “Contract”). The Contract shall be governed by the substantive law of the Kingdom of Saudi Arabia, without giving effect to its conflicts of laws principles. The United Nations Convention on the International Sale of Goods will not apply.
2 - Risk of Loss and Title
Risk of loss or damage to Products will pass to Buyer in accordance with the Incoterm 2010 specified by Seller or otherwise mutually agreed to by both parties. If no Incoterm is specified by Seller, risk of loss for shipments or road transfer will pass at the time Products are transferred to a commercial transportation carrier for shipment or road transfer. In all instances title shall pass at the same time as risk of loss passes to Buyer. Buyer will be responsible for clearing the Product for import and paying all duties, taxes and other charges upon import. Buyer shall pay, or reimburse Seller promptly for, all demurrage or detention charges on any Product not cleared for import within three days after Delivery. In case of road transport in local market, detention will be charged if Buyer fails to unload the material within one day after delivery. Seller reserves the right to deliver a Letter of Indemnify in lieu of a Bill of Lading.
All Products sold by the Seller shall remain the property of the Seller until it has received from Buyer all payments it is entitled to on the basis of the Contract, including any damages, costs, interest and duties.
3 - Delivery Terms
The delivery location and other shipment terms are stated in Seller’s quotation or the Sales Agreement. If the terms of shipment require Seller to pay freight, selection of carrier and routing of shipment shall be at Seller’s option. Buyer shall give Seller reasonable written notice of its desired order and shipment dates, and Buyer and Seller shall establish a mutually acceptable shipment schedule.
Parties acknowledge that any shipment schedules or delivery dates are approximate only and time shall not be of the essence. Notwithstanding the quantity ordered and stated in each Contract, an operational tolerance (percentage as specified under the Contract) shall be allowed for each shipment at Seller’s option with an adjustment in the price.
In case of bulk cargo vessel, container vessel, tank truck shipments or inter-tank transfer, bill of lading and/or certified international surveyor’s report (as applicable) at load port shall be final, save for manifest error. In case of road transport in local market, delivery order shall be the final document.
4 - Warranty of Quality
Seller warrants title and that the Products sold will conform to agreed specifications. No warranty is provided on any Products for which Buyer has not paid Seller in full. This limited warranty is given only to the original purchaser, it may not be transferred or assigned and does not extend to any subsequent purchaser or transferee of products. This warranty is in lieu of all other warranties, written or oral, statutory, express or implied, including any warranty of merchantability or fitness for a particular purpose.
Buyer must make all warranty claims under this section 4 in writing, within fifteen (15) days after delivery of the products, or if for non-delivery, after the scheduled delivery date. Buyer’s failure to make a written warranty claim within that fifteen (15) day period constitutes an absolute and unconditional waiver of that claim. Seller’s sole liability and Buyer’s exclusive remedy in connection with any claim against the Seller under the Contract will be for the Seller (at Seller’s option) either to replace the nonconforming products or to refund to the Buyer (by cash or credit) the purchase price of the nonconforming products. Buyer shall stop using the Products upon filing a claim under this Section 4, and shall properly and adequately segregate and store the Products until Buyer returns them to Seller or shall retain the Products for inspection by the Seller’s representative. Seller will not refund the purchase price nor replace the Products until Buyer has returned the unused portion of the Products to Seller.
5 - Weights and Inspection
The quantity of Products delivered is governed by Seller’s weights and measurements, unless proved to be erroneous. Buyer may call for an examination of any weighing or measuring devices, by an independent qualified examiner at Buyer’s cost. If the examination discloses any inaccuracy in the weighing or measuring equipment of 1.5% or more, the Seller shall reimburse Buyer for the cost of examination and correction, and adjust the corresponding invoice(s) accordingly.
6 - Product Safety
Buyer acknowledges that Product may be hazardous if so indicated in the Product’s Material Safety Data Sheet (MSDS) and that it is familiar with, and shall take all steps necessary to inform, warn, and familiarize its employees, agents, customers, and contractors who may handle Product, of all hazards pertaining to and proper procedures for safe use of Product and of the containers or equipment in which Product may be handled, shipped, or stored. Buyer also undertakes to label as appropriate any materials which it makes or resells that include the Product.
7 - Payment
The total contract value shall be computed based on the bill of lading quantity and the agreed Product unit price as stated in the invoice or in the Sales Agreement/Contract. If formula price is agreed to be linked to published price report by authorized well known third party (like ICIS, Argus etc.) in that case price may vary month to month (or quarter to quarter as agreed) and debit/credit note shall be issued based on the arrived final price.
Seller’s payment terms are stated in the Contract, Letter of Credit, or other applicable documentation between the parties, but if not so stated, payment shall be due within thirty (30) days after date of invoice. Buyer shall pay all amounts payable under the Contract in US Dollar (US$) or in Saudi Riyal (SAR), by wire transfer. Any banking charges associated with Buyer’s payment shall be for Buyer’s account. Each shipment of Product shall be considered a separate and independent transaction and payments thereunder shall be made accordingly. If Buyer fails to make payment when due, Seller may
Buyer shall reimburse Seller for Seller’s costs of collection, including legal fees and disbursements. Buyer shall pay a finance charge of 1.5% per month on all past-due balances. If, in Seller’s judgment, reasonable doubt exists as to Buyer’s financial responsibility, or if Buyer is past due in payment of any amount whatsoever owing to Seller or its affiliates, Seller shall have the right, without prejudice to any other remedies, to suspend performance, decline to ship, or stop any Product in transit, until Seller received payment of all amounts owing to Seller or its affiliates, or adequate assurance of such payment.
Buyer also acknowledges that both amounts invoiced by Seller and shipments in progress count toward Buyer’s credit limit with Seller. If at any time Buyer exceeds its credit limit, Buyer will within three (3) business days make payment sufficient to reduce its outstanding credit to a level not exceeding its credit limit and will continue to pay invoices on or before their due date.
8 - Indemnification; Limitation of Liability and Claims
Buyer shall indemnify Seller against any claim, liability, loss, cost, damage or expense suffered or incurred by Seller arising from Buyer’s failure to so inform, warn and familiarize its employees, agents, customers, and contractors, except to the extent that the claim, liability, loss, cost, damage or expense is caused by the failure of Product to meet the specifications. Buyer shall indemnify and defend Seller, Seller’s shareholders, parents, subsidiaries and affiliated entities, and their respective agents and employees against claims of injury (including death) or property damage (collectively “Losses”) arising out of Buyer's breach of its obligations under the Contract, or arising during the period in which Buyer, Buyer’s agent or carrier, or Buyer’s exchange partner taking physical Delivery of Products sold under the Contract, has custody of Products.
Except as agreed in the limited warranty set forth above, Seller will not be responsible for any harm arising out of Buyer’s purchase, possession or use of any Product, whether based in contract, warranty, negligence or other tort, strict liability or otherwise. Seller is not liable for any premium transportation, reprocurement, or other costs or losses incurred by Buyer as a result of any delay not caused by Seller.
“Losses” shall include (1) all liabilities, damages, losses, claims, settlement payments, costs and expenses, interest, awards, judgments, fines, fees and penalties and other charges, and (2) all court filing fees, court costs, arbitration fees or costs, witness fees, and each other fee and cost of investigating and defending or asserting a claim for indemnification under the Contract, including attorneys’ fees, other professionals’ fees, and disbursements.
Liability for Defective Products: Except in respect of death or personal injury caused by Seller’s negligence and to the extent that the Seller’s liability under the applicable law may be excluded, Seller shall not in any way be liable for loss, injury, damage or expenses of whatever nature which result, whether directly or indirectly, from the purchase, import, ownership, possession, storage, use, defect, and failure of the Product sold pursuant to this Contract.
Aggregate Liability If above section “Liability for Defective Products” does not apply for any reason whatsoever; or in circumstances where the Seller has not effectively excluded liability to the Buyer under or in connection with this Contract, Seller's aggregate liability to Buyer, in connection with Products or in connection with the Seller’s obligations under this Contract, shall be limited to the price payable or paid by Buyer for the Product to which such claim, demand, loss, injury, damage or expenses relates.
No Consequential Loss Except in respect of death or personal injury caused by Seller’s negligence and to the extent that the Seller’s liability under the applicable law may be excluded, in no event, including the negligent act or omission on its part, shall either party be liable to the other, whether under this Contract or otherwise in connection with it, or in contract, tort, negligence, equity, breach of statutory duty or otherwise howsoever arising, in respect of: (don’t you feel it is duplication, same as aggregate liability)
Any special, incidental, punitive, indirect or consequential losses or expenses (whether or not forseeable), and if and to the extent that they might otherwise not constitute special, incidental, punitive, indirect or consequential losses or expenses, all of the following
This limitation shall apply notwithstanding a finding that any remedy fails of its essential purpose.If the Seller is liable to pay damages, these damages shall not exceed the lower of the amount of the invoice for the Products that caused the damage, or, if the damage is covered by insurance, the amount actually paid by the insurance company to the Seller.
9 - Termination of Contract
Either party may terminate this Contract immediately by giving written notice to the other party (the "Defaulting Party") if the Defaulting Party commits a breach of any of the provisions of this Contract and, in the case of such a breach which is capable of remedy, fails to remedy the same within ten (10) days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.
Termination of this Contract shall be without prejudice to any other right or remedy or any accrued obligations or liabilities of either Party.
If Buyer breaches any term of the Contract or any other contractual obligation in favor of Seller, (a) Seller may choose to defer any or all further shipments or other performance under the Contract and performance of any other contractual obligation in favor of Buyer until Buyer cures its breach, or (b) Seller may immediately terminate the Contract if Buyer fails to cure such breach within ten (10) days after receipt of written notice from Seller describing such breach. In the event of a termination, all outstanding payment obligations or other indebtedness of Buyer to Seller shall be due and payable no later than fifteen (15) days including those not yet due after delivery of notice of termination. Acceptance by Seller of less than the full amount due shall not be a waiver of any of Seller’s rights under the Contract or applicable law.
Notwithstanding any provision in the Contract, Seller shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to Buyer unless Buyer is fully in compliance with its payment and other obligations under the Contract and any other contractual obligation in favor of Seller.
In addition, in the event that Buyer fails to make any payment when due, Seller shall have the right to offset any and all outstanding payment obligations or other indebtedness of Buyer to Seller against any outstanding payment obligations or other indebtedness that Seller or any of its affiliates may owe Buyer.
10 - Export Controls
Export Law Compliance Buyer shall ensure that it is compliant to all applicable laws and regulations of the country of origin and /or shipment of the Products. In the event Seller has reasonable grounds for believing that any applicable laws (including import control laws and regulations will not be complied with, Seller may, at its sole discretion (and without prejudice to any other rights), terminate or forthwith suspend delivery under this Contract until further notice or decline to commence or complete loading hereunder on notifying Buyer either in writing or orally (followed by written confirmation).
11 - Force Majeure
Definitions For the purpose of this Article 11
Affected Party means the party with respect to whom a Force Majeure Event has occurred.
Force Majeure Event means any event or circumstance, the occurrence and the effect of which the party affected thereby is unable to prevent and avoid notwithstanding the exercise of reasonable foresight, diligence and care on the part of that party. Without prejudice to the generality of the foregoing, the following shall be regarded as a Force Majeure Event:
Force Majeure Relieve Neither party shall be liable to the other party, or be deemed to be in breach of this Contract, by reason of any delay in performing or any failure to perform any of its obligations (other than the obligation to pay the contract price), if the delay or failure was due to a Force Majeure Event;
Provided that the Affected Party shall, as soon as reasonably possible, serve on the other party written notice thereof specifying the particulars of the Force Majeure Event and the estimated period during which the Affected Party is unable to perform and discharge its obligations. The Affected Party shall take all action reasonably within its powers to minimize the duration and effect of the Force Majeure Event on the Affected Party. Quantities so affected may, at the option of either party, be eliminated from the Contract without liability,and should Seller be the party relying on this force majeure provision, any time commitments imposed onSeller in the Contract in respect of delivery of Product shall be extended by the period of time forcemajeure is claimed by the Seller, but the Contract shall remain otherwise unaffected. A party’s obligationto render timely payment shall not be excused by this provision.
12 - Dispute Resolution
DIAC Arbitration Any dispute, controversy or claim arising out of or in connection with this Contract,including any question regarding its existence, validity or termination, shall be referred to and finallyresolved by binding arbitration in Dubai in accordance with the arbitration rules of Dubai InternationalArbitration Centre (“DIAC”) for the time being in force, which rules are deemed to be incorporated byreference into this Section. The arbitral tribunal shall consist of three arbitrators and the language ofarbitration shall be English. Notwithstanding the foregoing, Seller can submit any claim of payment due tounpaid invoices which have not been contested within 30 days after the date of invoice to the jurisdictionof the English Courts.
Interim Relief Notwithstanding the foregoing, nothing in this Contract shall prohibit either party fromseeking interim protective or conservatory measures, before or during the pendency of any arbitrationproceeding, in order to protect its interests in connection with the arbitration, including from pursuingarrest, attachment and/or other conservatory, interlocutory or interim actions in any court or exercisingany contractual rights in relation to Product or vessel.
13 - Governing Law
The Contract shall be governed in all respects by the Kingdom of Saudi Arabia Lawsexcluding expressly the United Nations Convention on Contracts for the International Sale of Goods.
Convention Exclusion The provisions of the United Nations Convention on Contracts for the InternationalSale of Goods (April 1980) are expressly excluded from application to the terms and conditions of thisContract and all implied representations and warranties provided for therein are likewise excluded.
No Third Party Rights No person who or which is not party to this Contract shall have any right to enforceany provision of this Contract against one of the parties.
14 - General
The Buyer may not assign or transfer any of its rights or obligations under this Contract orany part thereof without the prior written consent of the Seller.
This Contract supersedes all previous agreements and understandings between theparties with respect to the sale and purchase of Product, and may not be modified except by a writtendocument which expressly states the intention of the parties to modify this Contract, and signed by theduly authorized representatives of the parties.
No failure on the part of either party to exercise, and no delay on its part in exercising, anyright or remedy under this Contract will operate as a waiver thereof, nor will any single or partial exerciseof any right or remedy preclude any other or further exercise thereof or the exercise of any other right orremedy.
The parties shall keep strictly private and confidential any information relating to thisContract or any transaction or dealings between them pursuant to this Contract. Except as required by lawor with the express written consent of Seller, Buyer agrees to receive and maintain all informationreceived from Seller in confidence, using the same degree of care which the Buyer employs with its ownconfidential information, provided this is no less than a reasonable standard of care, and the Buyer will notdisclose to any person or make public or authorize the disclosure of any such information and will not usesuch information for any purpose, except as expressly agreed to by Seller in writing or in anotherapplicable agreement between Seller and Buyer.The Buyer acknowledges that its failure to comply withthe provisions of this section may cause irreparable harm to Seller which cannot be adequatelycompensated for in damages, and accordingly acknowledges that Seller will be entitled to claim, inaddition to any other remedies available to it, interlocutory and permanent injunctive relief to restrain anyanticipated, present or continuing breach of this section.
Buyer shall not use the trademarks of Seller without Seller’s prior written permission. Nolicense or right to use Seller’s trademarks is implied or granted. Buyer may add labels or stickers to theProducts only to comply with registration, importation or use requirements under applicable law.To theextent practicable, Buyer’s labels and stickers shall not affect, edit, alter, block or remove any copyright,trademark, trade secret, proprietary information, serial number and/or other notices of Seller containedon or in the Products.
In case any provision in this Contract shall be, or at any time shall become invalid, illegal orunenforceable in any respect, such invalidity, illegality or unenforceability shall not in any way affect orimpair any other provision of this Contract but this Contract shall be construed as if such invalid or illegalor unenforceable provision had never been contained herein.
Surviving Obligations: The obligations of the parties under this Contract which by their nature wouldcontinue beyond the termination, cancellation or expiration of this Contract will survive such termination,cancellation or expiration.
Battle of Forms
The terms of this Contract will take precedence over, govern and control any purchaseorder, sales acknowledgement, invoice or other writing between Seller and Buyer despite subsequentissuance, it being agreed and understood, without limitation, that any pre-printed terms and conditionsappearing on any other writing, communication or transmittal between Seller and Buyer pertaining to thesubject matter of this Contract will be null and void and have no force or effect.
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