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GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (hereinafter referred to as “GTCs”) shall apply to the supply and/or delivery of Products generally between CAFU APP TECHNOLOGIES FZE (“CAFU”) and its customer (the “PURCHASER”).
By placing an order of the Products, the PURCHASER shall be deemed to have accepted these terms and conditions unless agreed otherwise in writing.
1. Terms of Reference
1.1. The terms used in this Agreement are defined below:
Affiliate means, with regard to either party any company or legal entity which (i) controls directly or indirectly such party, or (ii) is controlled directly or indirectly by such party, or (iii) is controlled directly or indirectly by a company or legal entity which controls directly or indirectly such party.
Agreement means these GTCs and the STCs as may be amended by the parties.
Credit Terms means the credit terms under the STCs, as the case may be, and will address the type of security provided by the PURCHASER, if any, and the timing of payment(s) by the PURCHASER (regardless of whether paid incrementally or paid in full).
Delivery Fee means the delivery fee to be paid by the PURCHASER in connection with delivery of the Product as set out in the STCs.
Delivery Point means the location(s) at which the Product will be delivered, or at which the PURCHASER takes physical possession of the Product, that shall be agreed in advance in writing.
GTCs means these General Terms and Conditions which shall apply to any services provided by or through CAFU to PURCHASER, as modified by the STCs.
Product(s) means to petroleum products sold through the CAFU platform to the PURCHASER as set out the STCs.
Reference Number means the number generated by CAFU for purchase of Product and such Reference Number will be generated based on Product specification, price, quantity, delivery schedule, Delivery Point and Value Added Tax (VAT).
STCs means the Special Terms and Conditions which shall together with the GTCs.
1.2. Clause or paragraph headings shall not affect the interpretation of this Agreement.
1.3. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4. Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
2.1. The Product offered by CAFU shall be as specified in the relevant STCs or such other products as CAFU (in its sole discretion) shall choose to offer from time to time and as set out in the STCs.
2.2. CAFU may at its sole discretion add or withdraw Products from being offered on the CAFU platform from time to time.
2.3. Product specification shall comply with industry standards as established under UAE laws.
3. The STCs
3.1. The relevant STCs shall set out: a) the volume of Product, minimum committed volume requirements by the PURCHASER, and the duration for which the Agreement will be valid; b) the Delivery Point(s) for the Product; c) the specifications of the Product (if different from the specifications attached to these GTCs); d) price and e) Credit Terms.
3.2. CAFU shall review from time to time the performance / offtake status of the PURCHASER under the Agreement. In case CAFU evaluates that there is a likelihood of a shortfall, CAFU and PURCHASER may mutually agree to extend the timeframe for the PURCHASER to complete the offtake of the committed volume.
PURCHASER and CAFU shall agree on the price to be paid by the PURCHASER to CAFU for the Product being supplied under this Agreement, which shall be set out in the STCs.
5.1. Subject to this clause 5, the Product shall be delivered to the PURCHASER by CAFU, or its nominated contractors as mutually agreed in writing between CAFU and the PURCHASER through the relevant STCs.
5.2. Delivery schedules shall allow reasonable time for CAFU or its nominated subcontractors to deliver at the Delivery Point. CAFU shall make all reasonable efforts to make deliveries per the agreed delivery schedule. In case of any material delay, CAFU shall promptly communicate the same to the PURCHASER and the PURCHASER shall confirm and accept such delivery subject to reasonable adjustment of the Delivery Schedule by CAFU. The PURCHASER agrees that CAFU shall not be liable to the PURCHASER for any losses whatsoever that may arise as a result of a reasonable delay to the delivery of the Product.
5.3. To the maximum extent possible, each invoice shall have a unique Reference Number and shall set out the Delivery Point, the total amount of Product delivered for the period covered by the invoice, and the amount delivered per day per vehicle for the period covered by the invoice.
5.4. When a delivery cannot be made or is otherwise terminated as a result of PURCHASER’s non-compliance with any term of this Agreement, the PURCHASER shall reimburse CAFU for all its costs and any losses it suffers as a consequence of such terminated delivery. When a delivery cannot be made at the assigned Delivery Point or is otherwise diverted to another Delivery Point due to factors associated with the PURCHASER, the PURCHASER shall reimburse CAFU for all its costs and any losses it suffers as a consequence of such diverted delivery.
5.5. Delivery shall be made by delivery truck to the Delivery Point and the driver of the delivery truck shall be present at all times during the delivery of the Product in case there is needs to stop the discharge in the event of leaks/overflows.
5.6. CAFU reserves the right to effect delivery by means of a subcontractor and to refuse to deliver to any Delivery Point that CAFU reasonably considers to be unsafe. Notwithstanding anything contrary to this Agreement, the PURCHASER commits to receipt of a minimum quantity of 300 (three hundred) litres of the Product per hour for the above timeslots provided (the “Operational Requirement”). Failure for the PURCHASER to achieve the Operational Requirement, CAFU reserves the right to amend the above timeslots to attain the Operational Requirement or alternatively advise the PURCHASER to order the Product using CAFU’s application.
5.7. In the event of delivery by CAFU, PURCHASER warrants and undertakes that:
a) safe facilities will be provided by the PURCHASER which comply with all applicable legal and regulatory requirements for the Product being delivered without compromising any safety standards;
b) that the delivery truck shall be provided with unhindered entry & exit to the Delivery Point in addition to the PURCHASER’s vehicles at the Delivery Point;
c) PURCHASER will strictly observe any regulations laid down by any authority or to avoid smoke or fire in the vicinity of the Product and PURCHASER’s vehicles;
d) PURCHASER shall inform CAFU of any constraints at the Delivery Point reasonably in advance of the scheduled delivery. Any cost incurred by CAFU or the PURCHASER due a lapse on the part of the PURCHASER in sharing this information will be for the account of the PURCHASER;
e) PURCHASER accepts responsibility for any loss, leakage or contamination of the Product deliverable under this Agreement which may occur at the Delivery Point as a result of a breach by the PURCHASER of its obligations under the Agreement and the PURCHASER indemnifies CAFU and its Affiliates in respect of any claims and/or losses in respect of such breach by the PURCHASER; and
f) PURCHASER will nominate a competent qualified person to be present at the Delivery Point to ensure compliance with industry standard health and safety practices.
6. Risk and Title
The risk and title to the Product shall be in accordance with INCOTERMS on a Delivered Duty Paid (DDP) basis and shall pass to the PURCHASER when the Product passes from the nozzle (of the truck that is delivering the Product) into the gas/petrol tank fuel filler neck (of the vehicle to which Product is being delivered).
7. Product Discrepancy
7.1. PURCHASER shall be entitled at its own cost to sample the Product prior to offloading, providing such sampling does not lead to any delay in delivery. All costs associated with such sampling are to be borne by the PURCHASER.
7.2. Any Product loss and/or contamination following passing risk of loss shall be for the sole account of PURCHASER.
7.3. To the extent requested by the PURCHAER or otherwise required by CAFU, CAFU will issue a standard Delivery Note to the PURCHASER upon delivery. The PURCHASER will sign the Delivery Note and the Delivery Note shall be decisive for the quantity of Product delivered/lifted except in the case of manifest error.
7.4. In the event of any claim by the PURCHASER of short delivery, CAFU will investigate the circumstances if the PURCHASER notifies CAFU in writing immediately upon receiving the Product. The details of short delivery are to be mentioned by the PURCHASER on the Delivery Note issued by CAFU.
7.5. CAFU will not be liable to rectify short deliveries notified outside of Clause 7.4, and in the case of short delivery established pursuant to Clause 7.4 the sole remedy of the PURCHASER shall be supply of the deficient quantity by CAFU within a reasonable period of time.
8. Payment Terms
8.1. Prices quoted by CAFU are exclusive of VAT and any other applicable taxes, excise and duties (unless specified otherwise) and are comprised of a) the price for the Product and b) the Delivery Fee. The invoice delivered by CAFU shall further break down the price for the Product to specify the amount of VAT applicable to the purchase of the Product.
8.2. If the PURCHASER disputes any amount of the invoice, the PURCHASER shall notify CAFU within 7 (seven) days from the date of receipt of such invoice. Where the PURCHASER does not object within such 7 (seven) day period, the issued invoices shall be conclusively deemed correct and complete by the parties.
8.3. The PURCHASER shall pay all amounts due consistent with the payment details set out in the relevant STCs. In case credit facility is made available to PURCHASER from CAFU:
a) where mutually agreed in writing, PURCHASER shall provide as credit security a Bank Guarantee or a Letter of Credit in a form and from a bank in each case acceptable to CAFU. Any bank charges that may be incurred by the PURCHASER for issuing such security shall be borne by PURCHASER unless mutually agreed otherwise in writing;
b) any expiring security shall automatically reduce the credit limit afforded by CAFU to the PURCHASER by an amount equal to the expiring security;
c) In the event of the PURCHASER fails to make any payment on the date it falls due, CAFU may at any time thereafter suspend further deliveries and/or terminate supplies by notifying the PURCHASER in writing;
d) in the event there are no overdue invoices, but the purchases of the PURCHASER have reached the credit limit assigned by CAFU, all subsequent purchases of the Product by PURCHASER shall be on an advance payment or “cash on delivery” basis only’; or
e) CAFU may at its sole discretion offer/modify/withdraw the Credit Terms in respect of the PURCHASER at any time, including in the event the creditworthiness of the PURCHASER is found to be unsatisfactory to CAFU or if the PURCHASER has exceeded its assigned credit limit.
9. Late Payment & Cancellations
Time shall be of the essence in relation to all payment terms in this Agreement. In the event of delayed payment, interest shall accrue on the amount of the overdue payment at 14% p.a to be calculated from the due date until the payment date and shall be payable by the PURCHASER.
10. Liability and Indemnity
10.1. The PURCHASER indemnifies, defends, and holds harmless CAFU, its Affiliates, owners, directors and employees, against any liability (whether strict, absolute or otherwise) for any claim, loss, damage, cost, and expense and other costs of litigation on account of any injury, disease or death of persons (including, but not limited to, the PURCHASER’s employees) or damage to property (including, but not limited to, PURCHASER’s property) to the extent arising out of or in connection with the PURCHASER’s negligence or any failure by the PURCHASER to comply with any of its obligations under this Agreement.
10.2. CAFU shall not be liable to the PURCHASER for any indirect, incidental or consequential losses, claims, or damages, including but not limited to any loss of profits, revenues, goodwill or business opportunities, even if advised of the possibility of such losses, claims or damages.
10.3. Notwithstanding anything to the contrary in this Agreement, CAFU’s total liability to the PURCHASER in respect of losses or claims arising under or in connection with this Agreement in respect of an event or a series of related events, whether as a result of breach of contract, breach of warranty, breach of statutory duty, negligence or other misdeed, shall not exceed a) if the above breach of contract consists of a failure to deliver, the purchase price of the Product had it been delivered, or b) if the above breach gives rise to other claims, the total amount paid to CAFU for the Product in any 12 months’ period.
10.4. Where both CAFU and the PURCHASER are jointly liable for the same loss or damage, the parties agree that both CAFU and the PURCHASER shall contribute to such liability or a proportion of the liability to the extent that such a party has caused or contributed to the cause of such loss or damage.
10.5. Any indemnity or relief from or limit of liability in favour of CAFU or PURCHASER shall extend to and apply for the benefit of their respective Affiliates, owners, directors, and employees.
11. Force Majeure
Neither CAFU nor PURCHASER shall be liable in damages or otherwise for any failure or delay in performance of any obligation hereunder other than obligation to make payment, where such failure or delay is caused by force majeure, being any event, occurrence or circumstance reasonably beyond the control of that party, including without prejudice to the generality of the foregoing failure or delay caused by or resulting from acts of God, pandemics, epidemics, strikes, fires, floods, wars (whether declared or undeclared), riots, destruction of the Product, embargoes, accidents, restrictions imposed by any governmental authority (including allocations, priorities, requisitions, quotas and price controls) or any other man-made/natural disasters.
12.1. Without prejudice to any other rights or remedies PURCHASER may terminate this Agreement summarily by providing 30 (thirty) days written notice to CAFU.
12.2. Without prejudice to any other rights or remedies CAFU shall be entitled to terminate this Agreement with immediate effect for whatsoever by providing PURCHASER with written notice.
12.3. On termination of this Agreement all monies owed to CAFU shall become immediately due and payable, and the rights and obligations of the parties under this Agreement shall terminate and be of no further effect, except for those provisions that by their nature are intended to survive termination.
12.4. Either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
a) the other party commits a material breach of any of its obligations which is incapable of remedy;
b) a party is in material breach of its obligations under this Agreement, and such party fails to remedy such breach or default within 30 (thirty) days from the date of receipt of a written notice of such breach from the other part; or
c) a party ceases or threatens to cease carrying on its business or becomes insolvent, is wound up, goes into liquidation.
13. Confidentiality and Data Protection
13.1. Each party undertakes that it shall not, without the written consent of the other party, at any time during this Agreement and for a period of 2 (two) years after termination disclose to any person or third party any confidential information concerning the business, affairs, customer, clients or suppliers of the other party or of any member of its group, including information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (the “Confidential Information”), except as permitted by clause 13.2.
13.2. Each party may disclose the other party’s Confidential Information:
a) to its employees, officers, representatives, contractors, subcontractors, or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors, or advisers to whom it discloses the other party’s Confidential Information comply with this clause 13; and
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party or to be implied from this Agreement. In particular, no license is hereby granted directly or indirectly under any patent, invention, discovery, copyright, or other intellectual property right held, made, obtained or licensable by either party now or in the future.
13.4. Each party acknowledges and agrees to comply with the relevant applicable data protection laws and regulations.
No variation of this Agreement shall be effective unless it is in writing and signed by both parties (and their authorised representatives).
If at any time any provision of this Agreement is or becomes illegal, invalid, void or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Agreement in any other jurisdiction shall not be affected.
Neither party shall assign or transfer any or all of its rights and obligations under this Agreement without the prior written consent of the other party.
17. No Partnership
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorize either party to make or enter into any commitments for or on behalf of the other party.
Any notice shall be sufficiently given if it is in writing and is sent by either email as advised by the parties or Emirates Post, recorded delivery post, recognized international courier or delivered in person, or sent by email or fax transmission to the other party at the addresses or email addresses or numbers specified from time to time by the party to whom the notice is addressed. Such notices sent by email or fax shall be deemed received upon successful transmission or evidenced by the sender’s printed transmission report, and notices sent by post shall be deemed received upon delivery to the specified address. Contemporaneously with the delivery of notice as specified above, a party shall send also send a courtesy copy of such notice by email to the other party and such courtesy emailed copy shall be effective for notice purposes hereunder.
19. Entire Agreemen
19.1. This Agreement forms the whole agreement between the parties in respect of its subject matter and supersede all previous agreements between the parties, whether oral or in writing, relating to the same.
19.2. Each party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any express or implied representation, warranty, collateral contract or other assurance made by or on behalf of the other party before the signature of this Agreement.
20. Governing Law and Jurisdiction
20.1. This Agreement shall be governed by the federal laws of the UAE as applied by the Courts of the Emirate of Dubai. Each party irrevocably agrees that the Dubai Courts shall have exclusive jurisdiction to hear and determine any suit, action, or proceedings, and to settle any disputes, including any question regarding its existence, validity, or termination (each a “Dispute”).
20.2. If a dispute arises out of or in connection with this Agreement or the performance, validity, or enforceability of it (Dispute(s)) then except as expressly provided in this Agreement, the parties shall follow the procedure set out in this clause:
a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the General Manager of CAFU and the General Manager of the PURCHASER shall attempt in good faith to resolve the Dispute;
b) if the General Manager of the CAFU and the General Manager of the PURCHASER are for any reason unable to resolve the Dispute within 30 (thirty) days of service of the Dispute Notice, the Dispute shall be referred to the Chief Executive Officer (the “CEO”) and Chief Legal Officer of CAFU and the CEO of the PURCHASER who shall attempt in good faith to resolve it; and
c) if the CEO and the Chief Legal Officer of CAFU and the CEO of the PURCHASER are for any reason unable to resolve the Dispute within 30 (thirty) days of it being referred to them, the parties agree that the Dispute shall be finally resolved in accordance with clause 20.3.
20.3.Nothing in this Agreement shall prevent or prohibit either party from seeking urgent interim relief in any court of competent jurisdiction, including pre-arbitral attachments, temporary restraining orders temporary injunctions, permanent injunctions and/or orders of specific performance, as may appear reasonably necessary to preserve the rights of either party.
In the event of any conflicts between the Arabic and the English version of the Agreement, the English version shall prevail.