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Terms & Conditions

STANDARD TERMS AND CONDITIONS

LOWE Arabia Rental Equipment – Hire (KSA)

These conditions apply to all contracts for the hire of equipment by Lowe Rental Ltd. and shall apply in place of and prevail over any terms or conditions contained or referred to in any hirer's order or in correspondence or elsewhere or implied by trade custom, practice or course of dealing unless specifically agreed to in writing by a director of Lowe Rental.

1.

DEFINITIONS

1.1

"the Owner" means LOWE Arabia Rental Equipment. (company number 1010671866) whose registered address is DIP 1 First Gulf Properties Warehouse Complex, Warehouse WJ1 & WJ2, PO Box 392327, Dubai, UAE.

1.2

"the Hirer" means the person, firm, company, corporation or authority specified as the hirer of the Equipment and includes his/her, its or their successors or personal representatives.

1.3

"Equipment" means the equipment listed in the Quotation and any other equipment or goods of any nature whatsoever provided by the Owner to the Hirer in accordance with these conditions.

1.4

“Force Majeure Event” means any of the following circumstances or events which are beyond the Owner’s reasonable control including but not limited to: an act of God, war, military or terrorist activity, civil unrest, national strike, lock-out or trade dispute or labour disturbance, government intervention, pandemic, epidemic, fire, flood, storm or adverse weather conditions or difficulty or excessive increase in the expense in obtaining workmen, materials or transport, royal demise.

1.5

"Hire Contract" means the contract between the Owner and the Hirer in connection with the hire of the Equipment incorporating these conditions, the Quotation and the Order (where applicable).

1.6

"Hire Period" means the period during which the Equipment is hired by the Owner to the Hirer under the Hire Contract (and, if the Hire Contract subsists for different periods in relation to different items of Equipment, as the context requires or permits the period during which each item of Equipment is hired by the Owner to the Hirer) and includes any period during which the Equipment is in the possession or under the control of the Hirer otherwise than with the consent of the Owner.

1.7

"Minimum Hire Period" means either the minimum fixed term period for which the Equipment is capable of being hired as stated in the Quotation or (in the event that no such period is specified in the Quotation) as agreed between the Hirer and the Owner and stated in the Hire Contract.

1.8

"Minimum Hire Charge" means the minimum amount charged by the Owner for the Minimum Hire Period as stated in the Quotation or (in the event that no such period is specified in the Quotation) as agreed between the Hirer and the Owner and stated in the Hire Contract.

1.9

"the Site" means where the Equipment is or is to be located during the Hire Period.

1.10

"the Order" means the document (including electronic order document) submitted by the Hirer to the Owner confirming the hire of the Equipment.

1.11

"the Quotation" means the document provided by the Owner setting out the Charges, a list of the Equipment and any Minimum Hire Period.

1.12

"the Charges" means the total amount payable by the Hirer for the hire of the Equipment as set out in the Quotation or (in the event that no Quotation is provided by the Owner to the Hirer) as agreed in writing between the Owner and the Hirer.

1.13

“Deposit” means any deposit amount set out in the Hire Contract or the Quotation.

1.14

“Business Day” means a day, other than a Friday, Saturday, or public holiday in Kingdom of Saudi Arabia, when banks in Riyadh are open for business.

1.15

“Retail Prices Index” means the retail prices index as published by the Office for National Statistics from time to time.

1.16

“Total Loss” means the Equipment is, in the Owner’s reasonable opinion or in the opinion of the insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.

1.17

“Renewal Period” means any extension of the Minimum Hire Period.

1.18

“SAR” means Saudi riyal.

2.

CONSENTS LICENCES AND PERMISSIONS

2.1

The Hirer shall obtain and maintain in force at all times all permissions, consents and licences required for the Equipment or for the erection, installation or operation of the Equipment or any part of it under any applicable statute, regulation or bye-law and comply with any conditions imposed therein.

2.2

The Owner shall not, other than in exercise of its rights under the Hire Contract or applicable law, interfere with the Hirer's quiet possession of the Equipment.

2.3

The Owner reserves all intellectual property rights in or relating to the Equipment, including copyright in all drawings, plans, diagrams, operation or installation manuals, specifications, lists of components, illustrations and images of the Equipment or any part of it, all rights in all designs of or relating to the Equipment or any part of it prepared or created by the Owner and all rights in the trade and service marks (registered and unregistered) used by the Owner in connection with the Equipment or any part of it and the Hirer hereby acknowledges that it shall not acquire any such rights and that all such rights are, and shall remain, vested in the Owner.

2.4

If during the Hire Period the Hirer wishes to rent additional equipment from the Owner, the Hirer shall notify the Owner in writing. The Owner shall evaluate such a request and respond to the Hirer with a separate Quotation. Subject to the right of the Owner to notify the Hirer of any errors made by it on the Quotation and to amend it accordingly, such Quotation will remain valid and open to acceptance by the Hirer for a period of 14 days following which it will automatically lapse and no longer be capable of acceptance by the Hirer. The Hirer will promptly notify the Owner in writing whether it accepts or rejects the Quotation and where a Quotation is accepted it will be deemed to form part of the Order from that point onwards for the purpose of these Conditions unless the parties agree to proceed by way of a separate agreement for such additional equipment.

3.

DELIVERY

3.1

The Owner will use its reasonable endeavours to deliver the Equipment to the Site on the date specified for delivery in the Order or as otherwise agreed in writing between the Owner and the Hirer.

3.2

Unless otherwise specified in writing, time will not be of the essence in relation to the date for delivery of the Equipment and the Owner accepts no liability for failure to deliver the Equipment on any specified date arising from any cause whatsoever.

3.3

The Hirer will ensure that the Owner, or its affiliate, has a suitable and unrestricted access route for delivery and collection of the Equipment.

3.4

It shall be the responsibility of the Hirer to ensure that the route and site for delivery and collection of the Equipment is suitable and without impediment. Where the ground is soft, potentially unstable or otherwise unsuitable for delivery the Hirer shall notify the Owner, and the Hirer shall provide appropriate temporary foundations in a suitable position for loading, unloading and for the Equipment to rest on. For the avoidance of doubt, the Owner shall not be liable to the Hirer or any third party for any loss or damage incurred as a result of the Hirer failing to perform its responsibilities under this clause 3.4.

3.5

It is the Hirer's responsibility to ensure the suitability of the Site and access for the Equipment. Unless otherwise specified in writing, the Hirer is responsible for ensuring that any area onto which the Owner is installing flat-pack coldrooms is level and free of obstructions. Any costs arising from the unsuitability of the Site, access route and/or any consequential failed or delayed delivery and/or installation work are chargeable to the Hirer.

3.6

In the event the Hire Period exceeds twenty-four (24) months, the Owner shall be entitled to review, and to the extent reasonable, increase the costs of collection of the Equipment from the Site.

4.

LOADING AND UNLOADING

4.1

The Hirer shall be responsible for the loading and unloading of the Equipment at the Site and any personnel supplied by the Owner shall be deemed to be under the Hirer's control.

4.2

The Hirer shall be responsible for any lifting gear or special apparatus required for the installation or removal of the Equipment.

4.3

Should the vehicle driver be delayed in gaining access to the Site or unable to load / unload for a period of 3 hours or more whether the reason for the delay is within the control of the Hirer or not, then extra charges will be incurred at the rate of 250 SAR per 15 minute period for each employee or worker of the Owner thus delayed.

4.4

Any work involving positioning of the Equipment is the responsibility of the Hirer.

4.5

The Hirer shall deliver up the Equipment at the end of the Hire Period or on earlier termination of the Hire Contract at such address as the Owner requires, or if necessary allow the Owner or any of its representatives, access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment.

5.

CONNECTION OF MAINS SERVICES

5.1

Connection and disconnection of services on the Site is the responsibility of the Hirer and must be performed by a competent engineer in accordance with the service requirements outlined by the Owner.

5.2

Unless otherwise agreed in writing by the Owner, it is the responsibility of the Hirer to arrange for a competent engineer to commission the Equipment on the Site.

6.

MAINTENANCE, CARE AND ALTERATIONS

6.1

The Hirer shall use the Equipment in a skilful and proper manner and in accordance with any operating instructions issued with the Equipment and shall ensure that the Equipment is operated and used by properly skilled and trained personnel. The Hirer shall be responsible for maintaining the Equipment in the same condition as on the date of its delivery and for returning the Equipment at the expiry of the Hire Period in a good and clean condition (fair wear and tear excepted). If the Owner (in its absolute discretion) considers that the Equipment requires cleaning at any time during the Hire Period to ensure its efficient operation or its continued efficient operation, the Owner shall be entitled to clean the Equipment and charge the cost of so doing to the Hirer.

6.2

If at any time during the Hire Period the Equipment (or any part of it) is lost or damaged the Hirer shall immediately notify the Owner and the Hirer shall be responsible for the full cost of replacement or repair. In the case of damage, the Owner shall (in its absolute discretion) determine whether the damage shall be made good by repair or the Equipment be replaced. The Hirer shall be responsible for the replacement of all consumable items such as dishwasher salts, water softeners, calcium treatment units, slicer blades and light bulbs.

6.3

No alteration or modification may be carried out to the Equipment without the prior written consent of the Owner.

6.4

Nothing may be affixed whether temporarily or permanently to any of the interior or exterior walls of the flatpack coldroom, cabin or portable building housing or forming part of the Equipment and any holes or other damage caused to any interior or exterior walls shall be charged to and payable by the Hirer in accordance with these terms.

6.5

In the event of any item of the Equipment malfunctioning the Hirer will inform the Owner at the earliest possible opportunity. The Owner will procure that an engineer visits the Site to examine the malfunctioning item of the Equipment within one Business Day of notification.

6.6

If in the opinion of the Owner any malfunction of the Equipment is caused by misuse, neglect or malicious vandalism, or impact damage, the cost of repairs (including a call out charge at the Owner's rates ruling at the time), will be charged to and payable by the Hirer in accordance with these terms. If in the opinion of the Owner (i) the malfunction of the Equipment is caused by incorrect usage, insufficient gas or electrical supply, inadequate water treatment or any other problem unrelated to the Equipment, regardless of whether the Owner has conducted maintenance visits, or (ii) the Equipment is not malfunctioning, the Owner will charge the Hirer a full call-out charge at the Owner’s rate ruling at the time, including all transport charges.

6.7

In times of severe weather, precautions should be taken by the Hirer to avoid frost, flood, wind, hail, rain or storm damage. The Owner recommends that the Equipment be drained down or kept heated (as appropriate) overnight at such times. Any damage caused by frost, flood, wind, hail or storm is the responsibility of the Hirer.

6.8

In the event the Owner provides a cabin or portable building with the Equipment, under no circumstances may the Hirer remove any Equipment or part thereof from such cabin or portable building. No cooking equipment connected to a supply of water, electricity or gas, other than equipment supplied by the Owner, may be used within any portable kitchen supplied by the Owner unless prior consent in writing is given by the Owner.

6.9

The Hirer shall be responsible for ensuring compliance with any applicable rules or regulations relating to health or safety at work and shall take such steps (including compliance with all safety and usage instructions provided by the Owner) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained. In particular:

 

6.9.1

the Hirer shall not use the Equipment for any unlawful purposes;

 

6.9.2

the Hirer will not do or permit to be done anything that could invalidate the insurances referred to in Condition 18 (Title, Risk and Insurance);

 

6.9.3

if it is necessary or prudent for fire extinguishers to be available at the Site within the cabin or portable building, the Hirer shall be responsible for supplying them;

 

6.9.4

the Hirer shall be responsible for the periodic electrical testing and testing of emergency lights of the Equipment whilst on hire;

 

 

6.9.5

the Hirer shall be responsible for pressure vessel testing of any Equipment whilst on hire; and

 

 

6.9.6

 the Hirer shall be responsible for the chlorination of water supply pipework.

 

6.10

Should any fixed or loose item of Equipment not be returned with the Equipment at the expiry of the Hire Period then rental will be charged on that item until it is either returned to the Owner or payment for the item is received by the Owner. The minimum hire charge for such items will be 100 SAR plus 5 SAR per item per day.

6.11

The Hirer shall maintain operating records of the Equipment and upon request from the Owner, shall make copies of such records readily available to the Owner, together with such additional information as the Owner may reasonably require.

7.

INSPECTION

7.1

Regardless of any security or regulatory restrictions relating to access to the Equipment, the Hirer shall at all times allow the Owner, its agents or servants or any person authorised by the Owner, to have reasonable access to the Equipment to inspect, test, adjust, repair, remove or replace the same.

7.2

The Hirer shall procure that all necessary consents from third parties are obtained and kept in force to permit the Owner to have access to the Equipment at all times for the purpose of the Hire Contract.

8.

HIRE PERIOD

8.1

Unless otherwise agreed in writing, the Hire Period will commence on whichever is the earlier of (i) the day the Owner notifies the Hirer that the Equipment has left the Owner's premises or (ii) the day set out in the Quotation (the “Agreed Delivery Date”), and will terminate on the day the Equipment is received by the Owner at its premises. Should the Hirer seek to postpone the delivery date within the four (4) week time period leading up to the Agreed Delivery Date, notwithstanding such postponement, the Hire Period shall be deemed to commence on the Agreed Delivery Date.

8.2

On or after the expiry of the Minimum Period of Hire, the Owner will arrange collection of the Equipment at the expiry of notice given by the Hirer in accordance with clause 8.3.

8.3

Either the Hirer or the Owner may terminate the Hire Contract by giving notice in writing to the other in accordance with the following notice provisions. The Hire Contract will expire on the last day of the Minimum Hire Period or any extended Minimum Hire Period (whichever is the latter). In case of the Hire Period:

 

8.3.1

exceeds twenty four (24) months, the notice period shall be not less than twelve (12) weeks’ notice;

 

8.3.2

exceeds twelve (12) months, the notice period shall be not less than eight (8) weeks’ notice;

 

8.3.3

exceeds six (6) months, the notice period shall be not less than six (6) weeks’ notice;

 

8.3.4

is six (6) months, the notice period shall be not less than five (5) weeks’;

 

8.3.5

is three (3) months, the notice period shall be not less than four (4) weeks’;

 

8.3.6

is one (1) month, the notice period shall be not less than two (2) weeks’.

8.4

Notwithstanding clause 8.3 in the event that the Equipment on hire at any point consists of (i) ten (10) units or more; (ii) any units that require modification or design changes to be made; or (iii) open plan units, the party seeking to terminate the Hire Contract must give not less than ten (10) weeks’ notice.

8.5

The Owner may refuse a request by the Hirer to extend the Hire period beyond the Minimum Hire Period, or any subsequent requests for extension of the Hire Period. The Owner is not obliged to give any reasons for such refusal or to act reasonably.

9.

RENTAL TERMS, PAYMENT TERMS AND DEPOSIT

9.1

The Hirer shall pay to the Owner the Charges in accordance with the timeline set out in the Quotation or (in the event that no Quotation is provided by the Owner to the Hirer) as agreed in writing between the Owner and the Hirer.

9.2

The Charges are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Hirer at the rate and in the manner from time to time prescribed by law.

9.3

In the event that the Parties agree to extend the Minimum Hire Period, the Owner shall notify the Hirer as soon as reasonably practicable (before the expiry of the Minimum Hire Period) the revised Charges payable by the Hirer which shall continue to accrue at the rate agreed by the Owner at the point of extension until the Equipment is returned to or collected by the Owner or a further extension of the Hire Period is agreed.

9.4

If the Hire Period exceeds one (1) month, the Hirer will follow the payment schedule as agreed.

9.5

All Charges shall be paid by the Hirer punctually to the Owner and subject to clause 9.8 below no allowance, deduction, discount or set-off shall be permitted.

9.6

The Owner reserves the right to amend hire rates, reasonably, at any time after the expiry of the Minimum Hire Period, giving seven (7) days' notice in writing to the Hirer.

9.7

Where required under the Hire Contract, the Hirer shall pay a security bond to the Owner upon entering into the Hire Contract. The amount of such security bond shall be held by the Owner until the safe return of the Equipment in accordance with these conditions. The security bond may be set-off by the Owner against the Charges or applied by the Owner in its reasonable discretion to fund costs payable by the Hirer in connection with lost or damaged or inadequately cleaned Equipment.

9.8

If the Quotation includes a Deposit then the Deposit is a deposit against default by the Hirer of payment of any Charges or any loss of or damage caused to the Equipment. The Hirer shall, on the date of the Hire Contract, pay the Deposit in such amount as is detailed on the Quotation. If the Hirer fails without due cause to fulfil any Charges in accordance with the Hire Contract, or causes any loss or damage to the Equipment (in whole or in part), the Owner shall be entitled to apply the Deposit against such default, loss or damage. The Hirer shall pay to the Owner any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within five (5) Business Days of the end of the Hire Contract.

9.9

If at the time of entering into the Hire Contract the Hirer issued a specific purchase order number for the Hire Contract, the Owner will reference that purchase order number on all invoices issued to the Hirer. If following the issue of the Hirer’s initial purchase order number:

 

9.9.1

the Hirer’s requirements change such that additional Charges are due in excess of those covered by the initial purchase order number; and

 

9.9.2

the Hirer fails for any reason to promptly issue a revised or supplementary purchase order number to cover such additional Charges,

 

9.9.3

then the Hirer hereby authorises the Owner to raise its invoices for such additional Charges citing the original purchase order number provided. Invoices issued pursuant to this clause 9.9 shall be deemed to have been properly rendered and otherwise paid in accordance with the terms of this Hire Contract.

9.10

Save as provided at clause 9.11.1, the Hire Payments payable for:

 

9.10.1

the first Renewal Period following the Minimum Hire Period, shall be 5% more than the Hire Payment paid for the last month of the Minimum Hire Period;

 

9.10.2

each subsequent Renewal Period, shall be 5% more than the Hire Payment paid for the last month of the previous Renewal Period.

9.11

If the Owner, acting reasonably and in good faith, believes that the prevailing market conditions require it:

 

9.11.1

it may within 30 days of any Renewal Period commencing, notify the Hirer in writing that a higher increase in the Monthly Fee is required than is set out in clause 9.10;

 

9.11.2

the Increase Notice will set out the amount of the proposed increase and the reasons why the Owner considers it appropriate;

 

9.11.3

if the Hirer does not wish to continue with the Hire Contract at the price stated in the Increase Notice, it may serve notice to terminate the Hire Contract at the end of the following month providing that such notice must be served within 10 Business Days of the Hirer receiving the Increase Notice, time being the essence in this regard;

 

9.11.4

the higher Hire Payment notified to the Hirer pursuant to this clause 9.11.1 shall not take effect if a Termination Notice is served.

9.12

The Owner may, without need of prior notice, increase the amount of Rental Payments with effect from 1 January each year by an amount equal to any percentage increase in the Retail Prices Index during the previous year.

10.

FORCE MAJEURE

10.1

If the Owner is prevented, hindered or delayed from or in performing any or all of its obligations under this Agreement by a Force Majeure Event, the Agreement shall be suspended for so long as the Force Majeure Event continues and to the extent that the Owner is so prevented, hindered or delayed.

10.2

The Owner shall not be liable to the Hirer for any loss or damage which may be suffered by the Hirer as a direct or indirect result of the delay of Equipment or the performance by the Owner of any of its obligations under this Agreement being prevented, hindered or delayed.

10.3

As soon as reasonably practicable after the commencement of a Force Majeure Event, the Owner shall notify the Hirer in writing of the nature and extent of the circumstances giving rise to the Force Majeure Event and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement.

10.4

The Owner shall use all reasonable endeavours to mitigate the effects of the Force Majeure Event upon the performance of its obligations under this Agreement; and as soon as reasonably practicable after the cessation of the Force Majeure Event, shall notify the Hirer in writing and shall resume performance of its obligations under this Agreement. 

10.5

In the event the Force Majeure Event lasts longer than one (1) month, the Owner shall be entitled (but not required) to cancel the Hire Contract without liability or compensation to the Hirer. 

11

TERMINATION

 

Without prejudice to the Owner's right to arrears of Charges or other sums due under the Hire Contract the Owner may terminate the hire under the Hire Contract by notice to the Hirer upon the occurrence of any of the following events:

11.1

if the Hirer fails to pay the Charges or any other sums agreed to be paid by the Hirer to the Owner under the Hire Contract on the due date; or

11.2

if the Hirer breaches any term of the Hire Contract; or

11.3

if the Hirer does or allows to be done any act or thing which may prejudice or endanger the Owner's property or rights in the Equipment; or

11.4

if the Hirer dies or otherwise becomes incapable of performing its obligations under the Hire Contract; or

11.5

if the Hirer has a bankruptcy order made against him/her; or

11.6

if the Hirer is liquidated or wound up or has a petition for winding up presented against it or it pass a resolution for voluntary winding-up (otherwise than for reconstruction or amalgamation to which the Owner shall have given its written consent); or

11.7

if the Hirer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts; or

11.8

if the Hirer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Hirer with one or more other companies or the solvent reconstruction of the Hirer; or

11.9

if an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Hirer; or

11.10

if the holder of a qualifying floating charge over the assets of the Hirer has become entitled to appoint or has appointed an administrative receiver; or

11.11

if a person becomes entitled to appoint a receiver over the assets of the Hirer or a receiver is appointed over the assets of the Hirer; or

11.12

if a creditor or encumbrancer of the Hirer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Hirer's assets and such attachment or process is not discharged within 14 days; or

11.13

if the Hirer shall abandon the Equipment whereupon the Owner's consent to the Hirer's possession of the Equipment shall be terminated immediately and the Owner may take possession of the Equipment wherever it or any part of it may be.

12.

CONSEQUENCES OF TERMINATION

12.1

Immediately upon notification of the termination of the Hire Contract pursuant to clause 11 above there shall become immediately due and payable by the Hirer to the Owner:

 

12.1.1

all and any Charges then due (including all and any arrears);

 

12.1.2

all and any Charges which were agreed to be paid by the Hirer at the end of the Hire Period or any extension thereof (less a discount for accelerated payment at the rate of 5% per annum).

12.2

The Hirer shall indemnify the Owner against, and shall promptly reimburse the Owner upon receipt of any invoice from the Owner in respect of, all expenses and costs incurred by the Owner in retaking possession of the Equipment and/or enforcing its rights under the Hire Contract.

12.3

If the Hirer terminates the Hire Contract during the Minimum Hire Period and the Owner is capable of hiring all such Equipment to another customer for the remaining period of the Minimum Hire Period, the Owner shall offer the Hirer a rebate equal to 50% of the daily rental value under the Hire Contract in respect of each day of the remaining Minimum Hire Period that the Equipment is hired by another hirer (unless the amount representing the discount is applicable under 12.1.2 above).

13.

CANCELLATION

13.1

In the event that the Hirer cancels the Hire Contract (whether by notice to that effect given to the Owner at any time after the Hire Contract has been entered into or by failing to comply with the Hirer's obligations under the Hire Contract and the Owner electing to treat such failure as a repudiation of the Hire Contract by the Hirer) the Owner shall be entitled to either:

 

13.1.1

where the Hire Period has commenced, recover the same payments from the Hirer pursuant to clause 12 as if the Owner had terminated the Hire Contract for a reason falling within clause 11; or

 

13.1.2

where the Hire Period has not yet commenced, any Charges payable as the result of preparatory work on the Equipment and all Charges that would have been payable by the Hirer for the Minimum Hire Period as if the Hire Contract had not been cancelled.

14.

CLEANING

14.1

The Hirer shall fully clean the Equipment each day during the Hire Period.

14.2

At the expiry of the Hire Period and prior to the collection of the Equipment by the Owner the Hirer will deep clean the Equipment so that the Hirer returns the Equipment to the Owner in the same condition (fair wear and tear excepted) and standard of cleanliness as it was when it was delivered by the Owner.

15.

CONDITIONS, WARRANTIES AND EXCLUSIONS

15.1

The Equipment shall be deemed to be complete, in good order and condition and to the Hirer's satisfaction unless notification is received by the Owner within forty-eight (48) hours of the Equipment being delivered to the Site.

15.2

The Owner warrants that the Equipment shall substantially conform to its specification (as made available by the Owner to the Hirer), be of satisfactory quality and fit for purpose as determined by the Owner but no warranty or representation is given or made that the Equipment is suitable for the purpose required by the Hirer.

15.3

In the event of malfunction, failure or poor or partial performance of the Equipment or any part of it and subject to the provisions of clause 14.1 and clause 6 above, the liability of the Owner shall be limited to repairing or replacing the Equipment or relevant part.

15.4

Without prejudice to clause 15.5, the Owner's maximum aggregate liability in connection with the Equipment or the Hire Contract (including any liability for the acts or omissions of its employees, agents and subcontractors), whether such liability arises in contract, tort, negligence, misrepresentation, breach of statutory duty or otherwise howsoever shall in no circumstances exceed the amount equal to the aggregate Charges payable by the Hirer during the Minimum Hire Period.

15.5

Nothing in the Hire Contract shall exclude or in any way limit:

 

15.5.1

either party's liability for death or personal injury caused by its own negligence;

 

15.5.2

either party's liability for fraud or fraudulent misrepresentation; or

 

15.5.3

any other liability which cannot be excluded by law.

15.6

Except as expressly set forth in the Hire Contract all conditions, warranties and representations expressed or implied by statute, common law or otherwise with respect to the Equipment are excluded to the fullest extent permitted by law and in no event shall the Owner be liable for any negligence or other tortious loss or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not the Owner is advised of the possibility of loss, liability, damage or expense):

 

15.6.1

loss of revenue;

 

15.6.2

loss of actual or anticipated profits (including for loss of profits on contracts);

 

15.6.3

loss of the use of money;

 

15.6.4

loss of anticipated savings;

 

15.6.5

loss of business;

 

15.6.6

loss of operating time or loss of use;

 

15.6.7

loss of opportunity;

 

15.6.8

loss of goodwill;

 

15.6.9

loss of reputation;

 

15.6.10

loss of, damage to, or corruption or reconstitution of data; or

 

15.6.11

any indirect or consequential loss of damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in clauses 15.6.1 to 15.6.10). Direct financial and other loss not excluded by this clause is accepted by the Owner up to the limit set out in clause 15.4.

15.7

In particular, and without limiting the provisions of clause 15.6, the Owner accepts no liability for loss of or damage to food due to defects in or breakdown of any cold room or refrigeration equipment included in the Equipment.

16.

TRANSPORT

16.1

Unless otherwise stated in the Quotation provided by the Owner to the Hirer, the Hirer shall pay to the Owner the cost of the transport of the Equipment from the Owner's premises to the Site and its return to the Owner's premises.

17.

SUB-LET AND CHANGES OF SITE

17.1

Subject to 17.3 below the Hirer shall not re-hire, sell, mortgage, charge, pledge, part with possession of or otherwise deal with the Equipment or purport to do any such things and shall protect the same against distress, execution or seizure and shall indemnify the Owner against all damages, losses, costs, charges and expenses that may be occasioned by failure to observe and perform this condition except in the case of Government requisition.

17.2

The Hire Contract is personal to the Hirer and the Hirer shall not assign his, her or its rights hereunder.

17.3

Subject to the written permission of the Owner and the Hirer having specified any sub-hirer to the Owner in writing the Hirer may sub-let the whole (but not part only) of the Equipment to the specified person, firm or company for use at the Site but:

17.4

any such sub-letting shall not affect in any way the Hirer's liability to the Owner under the terms of the Hire Contract;

 

17.4.1

the Hirer shall make it a condition of the sub-letting that in the event that the Hirer makes any default in the payment of rentals due by the Hirer to the Owner the sub-hirer shall thereupon no longer be in possession of the Equipment sub-hired with the consent of the Owner and accordingly such Equipment may be repossessed by the Owner; and

 

17.4.2

the Hirer shall indemnify and keep indemnified the Owner against any loss, cost, claim, demand, liability or expense which the Owner may suffer, incur or sustain as a result of or in connection with any such sub-letting.

17.5

In particular but without prejudice to the generality of clause 17.3 above the Hirer will remain liable for all damage to the Equipment or any part of it caused by any person, firm or company to which the Hirer gives possession of the Equipment and for any charges raised by the Owner in accordance with these terms and conditions in the event of failure to maintain the Equipment properly.

18.

TITLE, RISK AND INSURANCE

18.1

The Equipment shall at all times remain the property of the Owner, and the Hirer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of the Hire Contract).

18.2

The risk of loss, theft, damage or destruction of the Equipment shall pass to the Hirer on delivery to the Site. The Equipment shall remain at the sole risk of the Hirer during the Hire Period until such time as the Equipment is collected by or returned to the Owner. During the Hire Period, the Hirer shall, at its own expense, obtain and maintain the following insurances:

 

18.2.1

insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft, accident and any other cause usually insured against;

 

18.2.2

insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Owner may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and

 

18.2.3

insurance against such other or further risks relating to the Equipment as may be required by law, together which such other insurance as the Owner may from time to time consider reasonably necessary and advise to the Hirer.

18.3

The Hirer shall ensure that the interest of the Owner is noted on such insurance policies effected by the Hirer and that the Owner is named as loss payee so that in the event of loss or damage to the Equipment or any claim being made against the Owner for loss or damage to person or property the Owner will have the benefit of an indemnity from an insurance company to the full value of the loss, damage or claim.

18.4

The Hirer shall, at least 10 Business Days before the Hire Period commences, provide to the Owner evidence that the Hirer has the insurance policies in force as required by these terms and conditions.

18.5

Should the Hirer not provide evidence of the required insurance cover in accordance with clause 18.4, or should the Owner reasonably consider that the insurance obligations under this clause 18 have not been adequately met, the Owner shall be entitled to charge the Hirer a fee (a “Damage Waiver”), which shall be charged to and payable by the Hirer in accordance with these terms/effect and maintain the required insurance cover in accordance with clause 18.2, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Hirer.

18.6

The Hirer shall not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscate, seized, or taken, the Hirer shall notify the Owner and the Hirer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Owner on demand against all losses, costs, charges, damages, and expenses incurred as a result of such confiscation.

19.

OWNER'S MARKS

19.1

The Hirer will not remove, obscure, alter or deface in any way any of the Owner's nameplates, signs, engravings or other indications of ownership on any of the Equipment.

19.2

The Hirer will procure that none of the Equipment becomes affixed to any land and will indemnify the Owner against any loss, cost claim, demand, liability or expense which the Owner may suffer, incur or sustain as a result of any person, firm or company claiming that any Equipment has become affixed to any property.

20.

ENTIRE AGREEMENT AND VARIATION

20.1

The Hire Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.

20.2

Each party acknowledges that, in entering into the Hire Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Hire Contract. Each party agrees that its only liability in respect of those representations and warranties that are set out in the Hire Contract (whether made innocently or negligently) shall be for breach of contract.

20.3

Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.

20.4

No variation of the Hire Contract shall be effective unless it is in writing and agreed by the parties (or their authorised representatives).

21.

RIGHTS OF THIRD PARTIES

21.1

A person who is not a party to the Hire Contract shall not have any rights to enforce its terms.

21.2

The rights of the parties to terminate, rescind or agree any variation, waiver or settlement to or under the Hire Contract are not subject to the consent of any person that is not a party to this agreement.

22.

GENERAL

22.1

Any delay or failure by the Owner to exercise any right or remedy under the terms hereof shall not constitute a waiver of it or them and any of the Owner's rights or remedies may be enforced separately or concurrently with any other right or remedy now or in the future accruing to the Owner to the effect that such rights are cumulative and not exclusive of each other.

22.2

The continuance of the hire under the Hire Contract and of the Hirer's liability for payment of rentals and all other sums due under it shall not be affected in any way by the loss or theft of or any damage to or defect in the Equipment, whether latent or patent.

22.3

Any written communication from the Owner to the Hirer or from the Hirer to the Owner shall be effective for the purposes of the Hire Contract and shall be sufficiently served if sent by letter whether delivered by pre-paid post or as an attachment to email or delivered by hand to the address of the other as referred to in the Quotation, Order or other contract document forming part of the Hire Contract and if sent by post shall be deemed to have been received by the addressee forty-eight (48) hours after the time of posting and at the date of sending or delivery if delivered by hand or sent as an email attachment.

22.4

The Hire Contract shall be governed by and construed in accordance with the laws in force in the Kingdom of Saudi Arabia.

22.5

Each party agrees that the courts of Saudi Arabia shall have jurisdiction to settle any dispute or claim arising out of or in connection with the Hire Contract or its subject matter or formation (including non-contractual disputes or claims).

 

Updated May 2021

           

 

 

STANDARD TERMS AND CONDITIONS

LOWE Arabia Rental Equipment– Sale (KSA)

These conditions apply to all sales of goods by any company within Lowe Rental Ltd. to any Buyer and shall apply in place of and prevail over any terms or conditions contained or referred to in any Buyer's order or acceptance of the Quotation or in any of the Buyer's correspondence or elsewhere or implied by trade custom, practice or course of dealing.

1.

DEFINITIONS

1.1

"the Seller" means LOWE Arabia Rental Equipment (company number 1010671866) whose registered address is DIP 1 First Gulf Properties Warehouse Complex, Warehouse WJ1 & WJ2, PO Box 392327, Dubai, UAE.

1.2

"the Buyer" means the person, firm, company, corporation, organisation or authority seeking to purchase goods from the Seller and includes his, its or their successors or personal representatives.

1.3

"Goods" means all goods of any description which are the subject of a Sale Contract between the Seller and the Buyer.

1.4

“Force Majeure Event” means any of the following circumstances or events which are beyond the Owner’s reasonable control including but not limited to: an act of God, war, military or terrorist activity, civil unrest, national strike, lock-out or trade dispute or labour disturbance, government intervention, pandemic, epidemic, fire, flood, storm or adverse weather conditions or difficulty or excessive increase in the expense in obtaining workmen, materials or transport, royal demise.

1.5

"the Quotation" means the Seller's quotation for the supply of the Goods and, where applicable, the Works.

1.6

"Sale Contract" means a contract for the sale of the Goods and the Works (if applicable) by the Seller.

1.7

"the Works" means the services to be supplied by the Seller under the terms of the Sale Contract in or in connection with the installation of the Goods.

2.

CONCLUSION OF CONTRACT

2.1

No contract for the sale of goods by the Seller is concluded until the Seller sends an acknowledgement of order form to the Buyer indicating acceptance of an order placed by the Buyer or the Seller otherwise indicates to the Buyer that it has accepted the Buyer's order.

3.

PRICES

3.1

Where the Goods are sold on the basis of prices set out in the Seller's price list, the Seller shall be at liberty to alter any price shown in its price list from time to time and the price for the Goods under the Sale Contract shall be the price shown for goods of that description or those descriptions set out in the Seller's price list ruling at the date of the Buyer's order.

3.2

Unless otherwise specified the price of the Goods is exclusive of VAT, Customs or harbour dues and any importation charge or fee levied by any government or authority in respect of the Goods.

4.

PAYMENT

4.1

Unless otherwise specified by the Seller in writing payment for the Goods or any instalment of the price for the goods or for services to be provided by the Seller to the Buyer shall be made in full without any set-off or deduction by the Buyer within thirty days after the date of invoice from the Seller.

4.2

Interest shall be payable on overdue accounts at the statutory rate applying from time to time from the due date for payment thereof until receipt by the Seller of the full amount, whether before or after judgement.

4.3

If at the time of failure by the Buyer to pay the full price for the Goods or any instalment of the price on the due date for payment any further goods or services remain to be supplied by the Seller whether under the terms of the Sale Contract or otherwise, the Seller shall have the right at any time while such default continues:

 

4.3.1

to suspend any further deliveries of goods and to demand payment in advance by the Buyer for all or any such goods or services remaining to be supplied by the Seller; or

 

4.3.2

to treat the Sale Contract as terminated by the Buyer thus releasing the Seller from any further obligation to supply goods or services under the Sale Contract and giving rise to a claim by the Seller against the Buyer for the loss of profit it would have made had such goods or services been supplied under the Sale Contract and paid for by the Buyer.

4.4

The Seller shall be entitled to appropriate any payment made by the Buyer to such of the Goods (or goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer).

5.

DELIVERY

5.1

Unless otherwise expressly agreed in writing between the Seller and the Buyer, delivery dates mentioned in any quotation, acknowledgement of order or elsewhere are approximate only and not of any contractual effect and the Seller shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates.

5.2

Delivery shall be at the Seller's premises unless otherwise stipulated or agreed by the Seller.

5.3

Unless otherwise expressly agreed in writing, transportation of the Goods from the Seller's premises shall be the responsibility of the Buyer.

5.4

If the Buyer refuses or fails to take delivery of the Goods or any part of the Goods tendered in accordance with the Sale Contract or fails to take any action necessary on its part for delivery and/or shipment of the Goods or any part of the Goods the Seller shall be entitled either to:

 

5.4.1

terminate the Sale Contract with immediate effect, to dispose of the Goods or such part of the Goods as remains in the Seller's possession in such manner as the Seller may determine and to recover from the Buyer any loss and additional costs Incurred as a result of such refusal or failure; or

 

5.4.2

store the Goods or such part of the Goods as remains in the Seller's possession for the Buyer and charge the Buyer for storage at the rate of 2.5% of the invoice price of the Goods or the relevant part thereof per month.

5.5

Unless otherwise expressly agreed the Seller may affect delivery in one or more instalments and each instalment shall be treated as a separate contract. Failure by the Seller to deliver any one or more of the instalments in accordance with the conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Agreement as a whole as repudiated.

5.6

If the Buyer transports the Goods outside the Kingdom of Saudi Arabia, the Buyer shall be responsible for:

 

5.6.1

providing the Seller with any information which is necessary in order to enable the Seller to comply with all manufacturing, sales, labelling, packaging, marketing and other applicable legal requirements in the country of destination; and

 

5.6.2

complying with any legislation or regulations governing the importation of the Goods into the country of destination. If any licence or consent of any government or other authority shall be required for the acquisition, carriage or use of the Goods by the Buyer, the Buyer shall obtain it at its own expense and if required by the Seller produce evidence on demand that it has done so. Failure to obtain it shall not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred by the Seller resulting from such failure shall be for the Buyer's account.

5.7

The Buyer shall test and inspect the Goods at the Seller's premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on testing and inspection and which is made after shipment.

6.

RISK

6.1

Risk in any part of the Goods shall pass to the Buyer when that part of the Goods is delivered to the Buyer. If the goods are sold ex-works, delivery is deemed for this purpose to occur when the Goods are loaded on to transport to take them from the Seller's premises. If the Sale Contract obliges the Seller to deliver the Goods to a location other than the Seller's premises, delivery is deemed for this purpose to occur when the Goods arrive at the delivery location and before they are unloaded.

7.

TITLE

7.1

Notwithstanding delivery, the Goods shall remain the sole and absolute property of the Seller until such time as the Buyer shall have paid to the Seller the agreed price for all the Goods which are the subject of the Sale Contract.

7.2

Until such payment the Buyer shall be in possession of the Goods solely as bailee for the Seller in a fiduciary capacity and shall:

 

7.2.1

store and label the Goods separately from the Buyer's other goods and in such a way as to enable them to be identified as the property of the Seller; and

 

7.2.2

not destroy, deface or obscure any identifying mark or packaging on or related to the Goods;

 

7.2.3

maintain the Goods in a satisfactory condition and keep them insured on the Seller's behalf for their full price against all risks to the reasonable satisfaction of the Seller and on request produce the policy of insurance.

7.3

The Seller reserves the immediate right of repossession of any of the Goods to which it has retained title as aforesaid and thereafter to resell the same and for this purpose the Buyer hereby grants an irrevocable right and licence to the Seller, its servants and agents to enter upon all or any of the Buyer's premises with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the Sale Contract for any reason and is without prejudice to any accrued rights of the Seller thereunder or otherwise.

7.4

The Buyer shall have the right in the ordinary course of its business to sell and deliver the Goods or any of them to any third party as the Seller's bailee and in a fiduciary capacity and provided that the entire proceeds of sale are held in trust for the Seller and not mingled with any other monies and shall be kept at all times identifiable as the Seller's monies. The Buyer agrees immediately upon being so requested by the Seller to assign to the Seller all rights and claims which the Buyer may have against its customers arising from such sales until payment in full is made by the Buyer to the Seller as aforesaid.

8.

LIABILITY

8.1

Subject to the provisions of this clause 8 and 9 the Seller warrants to the Buyer that the Goods will be of satisfactory quality in that they will be free from material defects, comply in all material respects with the description and any specification applicable to the Goods and be reasonably fit for any particular purpose for which the Seller holds them out. In so far as the Sale Contract requires the Seller to provide design services, the Seller warrants that such design shall be undertaken using the standard of skill and care to be expected of a competent catering designer. In so far as the Sale Contract requires the Seller to undertake installation, such work will be carried out in a proper and workmanlike manner.

8.2

Subject to the provisions of this clause 8 and clause 9, if the Goods are sold as new, the Seller warrants that they will have an appearance and finish consistent with new goods.

8.3

If the Goods are sold as second-hand goods, the Seller gives no warranty as the appearance or finish of the Goods or as to their freedom from minor defects.

8.4

The warranties set out in clauses 8.1 and 8.2 do not extend to any matter:

 

8.4.1

which is specifically drawn to the Buyer's attention before the Sale Contract is made; or

 

8.4.2

where the Buyer examines the Goods before the Sale Contract is made, which that examination ought to reveal.

8.5

The Seller shall not be liable to the Buyer for any defect in the Goods unless that defect is notified to the Seller within the warranty period and for this purpose:

 

8.5.1

the warranty period, in the case of all Goods or parts of Goods which are new, shall be the period of twelve months from the date when the Goods or such parts of the Goods is or are delivered to the Buyer and in the case of all Goods or parts of Goods which are second-hand, shall be the period of three months from the date when the Goods or such part or parts of the Goods is or are delivered to the Buyer; and

 

8.5.2

delivery shall be deemed to occur

 

 

8.5.2.1

in the case of Goods sold under a Sale Contract which does not oblige the Seller to carry out any installation work in relation to the Goods, when the Goods are loaded onto transport from the Seller's premises; and

 

 

8.5.2.2

in the case of Goods sold under a Sale Contract which does oblige the Seller to carry out installation work in relation to the Goods, when the Seller notifies the Buyer that such installation work has been carried out.

8.6

Subject to clause 6, the Seller shall not be liable for any damage or loss to the Goods occurring in transit to the Buyer unless the Buyer notifies the Seller of such loss or damage within seven days of the Goods being unloaded at the delivery location.

8.7

The Seller shall not in any case be liable to the Buyer for any defects in the Goods caused by:

 

8.7.1

fair wear and tear while used by the Buyer;

 

8.7.2

abnormal conditions of storage or use;

 

8.7.3

any neglect or default of the Buyer or any third party which is not consistent with use of the Goods in conditions and for the purpose for which goods of that kind are commonly supplied;

 

8.7.4

failure of the Buyer failed to follow the Seller's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or

 

8.7.5

a defect caused by or arising from any drawing, design, specification or information supplied by the Buyer.

8.8

Where the Seller is liable for any defect in the Goods or breach of any warranty in clauses 8.1 and 8.2, the Seller's only obligation shall be at its option:

 

8.8.1

to make good or repair the relevant item of the Goods; or

 

8.8.2

to replace it or them; or

 

8.8.3

to refund the cost of it or them to the Buyer; and if the Sale Contract under which the Goods are supplied obliged the Seller to carry out installation work in relation to the Goods; at its option either

 

8.8.4

itself to carry out the work of renewing the defective item and installing a made good, repaired or replaced item; or

 

8.8.5

to reimburse the Buyer for its costs incurred in such removal and installation.

8.9

Any liability of the Seller under or in respect of the warranties contained in this clause 8 or otherwise arising in respect of the supply of goods or services to the Buyer in connection with the Sale Contract shall cease in the event that:

 

8.9.1

the Buyer fails to pay the price for the Goods in accordance with the terms of the Sale Contract; or

 

8.9.2

the Buyer carries out any alterations, repairs or maintenance to the Goods otherwise than in accordance with instructions from the Seller or using parts not recommended by the Seller.

8.10

The Seller's aggregate liability to the Buyer for breach of any warranty in clauses 8.1 and 8.2 shall in no circumstances exceed the price payable under the Sale Contract.

9.

EXCLUSION

9.1

Nothing in the Agreement shall limit the liability of the Seller to the Buyer for death or personal injury resulting from its negligence, for fraud or fraudulent misrepresentation or for any liability which cannot be excluded by law.

9.2

Subject to clause 9.1 and the limitations in clause 8.10, the following provisions set out the limitations on the liability of Seller (including any liability for the acts and omissions of its respective employees, agents and sub-contractors) to the Buyer with respect to:

 

9.2.1

any breach of its contractual obligations arising under the Sale Contract;

 

9.2.2

any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and

 

9.2.3

any representation, statement, act or omission given, made or carried out under or in connection with the Sale Contract (whether such liability arises in contract, tort, negligence, misrepresentation, breach of statutory duty or otherwise howsoever).

9.3

It is the Buyer's responsibility to ensure that the Goods are suitable for its needs. In particular, the Seller expressly disclaims all warranties that use of the Goods or any part thereof will result in any economic advantage, increase in profits or reduction in costs.

9.4

Except as expressly set forth in the Sale Contract, all conditions, warranties and representations expressed or implied by statute, common law or otherwise with respect to the Goods are excluded to the fullest extent permitted by law and in no event shall the Seller be liable for any negligence or other tortious loss or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not the Seller is advised of the possibility of loss, liability, damage or expense):

 

9.4.1

loss of revenue;

 

9.4.2

loss of actual or anticipated profits (including for loss of profits on contracts);

 

9.4.3

loss of the use of money;

 

9.4.4

loss of anticipated savings;

 

9.4.5

loss of business;

 

9.4.6

loss of operating time or loss of use;

 

9.4.7

loss of opportunity;

 

9.4.8

loss of goodwill;

 

9.4.9

loss of reputation;

 

9.4.10

loss of, damage to or corruption of data; or

 

9.4.11

any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in clauses 9.4.1 to 9.4.10).

 

Direct financial and other loss not excluded by this clause is accepted by the Seller up to the limits set out in clause 8.10.

10.

FORCE MAJEURE

10.1

If the Seller is prevented, hindered or delayed from or in performing any or all of its obligations under this Agreement by a Force Majeure Event, the Agreement shall be suspended for so long as the Force Majeure Event continues and to the extent that the Seller is so prevented, hindered or delayed.

10.3

The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the delay of Goods or the performance by the Seller of any of its obligations under this Agreement being prevented, hindered or delayed.

10.4

If due to any Force Majeure Event the Seller has insufficient stocks to meet all its commitments, the Seller may apportion available stocks between its customers at its sole discretion.

10.5

As soon as reasonably practicable after the commencement of a Force Majeure Event, the Owner shall notify the Buyer in writing of the nature and extent of the circumstances giving rise to the Force Majeure Event and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement.

10.6

The Seller shall use all reasonable endeavours to mitigate the effects of the Force Majeure Event upon the performance of its obligations under this Agreement; and as soon as reasonably practicable after the cessation of the Force Majeure Event, shall notify the Buyer in writing and shall resume performance of its obligations under this Agreement. 

10.7

In the event the Force Majeure Event lasts longer than one (1) month, the Seller shall be entitled (but not required) to cancel the Sale Contract without liability or compensation to the Buyer. 

11.

INSOLVENCY AND DEFAULT

 

If

11.1

the Buyer enters into a deed of arrangement or has a bankruptcy order made against him or compounds with his creditors or

11.2

the Buyer being a company, shall be liquidated or wound up or have a petition for winding up presented against it or pass a resolution for voluntary winding up (otherwise than for a bona fide reconstruction previously approved in writing by the Seller) or

11.3

the Buyer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts; or

11.4

the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer; or

11.5

an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Buyer; or

11.6

the holder of a qualifying floating charge over the assets of the Buyer has become entitled to appoint or has appointed an administrative receiver; or

11.7

a person becomes entitled to appoint a receiver over the assets of the Buyer or a receiver is appointed over the assets of the Buyer; or

11.8

a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Buyer's assets and such attachment or process is not discharged within 14 days; or

11.9

the Buyer is the subject of any analogous arrangement, event or proceedings in any other jurisdiction; or

11.10

the Buyer commits any breach of any of the terms of the Sale Contract, the Seller may without prejudice to any of its other rights stop any of the Goods in transit and/or suspend further deliveries and/or determine the rights of the Buyer to sell on the Goods or any of them and/or by notice in writing to the Buyer determine the Sale Contract.

12.

INSTALLATION

 

If the Sale Contract obliges the Seller to supply any services for the installation of any of the Goods, the following conditions shall apply:

12.1

If occupation of the location where the Goods are to be installed as stipulated in the Quotation (the "Site") is not given to the Seller within three months after the date on which the Sale Contract is entered into or by the date stipulated in the Quotation the Seller shall be entitled to either terminate the Sale Contract by notice to the Buyer and to recover from the Buyer all costs, charges and expenses incurred by the Seller in performing or preparing to perform its obligations under the Sale Contract or amend the delivery location to the Seller's premises and charge the Buyer storage costs until the Buyer makes suitable arrangements to remove the Goods from the Seller's premises.

12.2

Subject to clause 12.3 the Works shall be carried out in accordance with the Seller's specification contained or referred to in the Quotation and any plans and drawings approved by the Buyer subject to the right of the Seller to make minor variations from the specification, plans and drawings as may be reasonably necessary in the opinion of the Seller.

12.3

Minor variations from the specification, plans and drawings ordered in writing by the Buyer shall be carried out subject to agreeing details and the value before the variation is started and such value shall be added to or deducted from (as the case may be) the quoted price.

12.4

The Seller reserves the right to sub-contract the whole or any part of the Works.

12.5

The Buyer will procure that all necessary services (including without limitation gas, electricity, chlorination and water) are supplied on Site prior to the date required by clause 12.1. The Seller will not be responsible for pressure vessel testing or insurance certification. The Seller will not be responsible for electrical testing and the testing of emergency lights. If such services are not so provided, the Buyer shall indemnify the Seller against any additional costs incurred by the Seller.

12.6

Unless otherwise provided in the Quotation the Buyer shall obtain all permissions, consents and licenses required for the Works under any statute, regulation or bye-law and in due time comply with the same and any conditions imposed in respect thereof. The Buyer shall indemnify the Seller against any loss or damage suffered by the Seller on account of any failure of the Buyer to do so and against any expenses or fees payable by the Seller in connection with such statutes, regulations or bye-laws.

12.7

It is the responsibility of the Buyer to ensure that the carrying out by the Seller of the Works in accordance with the specification included in the Sale Contract does not contravene any applicable environmental, health or safety law or regulation.

12.8

Where a local or statutory authority requires any amendment to the Seller's specification, then the additional cost incurred by the Seller in complying with such amended specification shall be borne by the Buyer.

12.9

Unless otherwise provided in the quotation, the Buyer shall provide vehicular access to the Site with adequate unloading facilities alongside the designated position for the Goods at all times necessary for the delivery of materials or the execution of the Works.

12.10

The Buyer shall indemnify the Seller against all claims, demands and proceedings made or brought by any person claiming:

 

12.10.1

any estate or interest in or over the Site or any part thereof, in respect of any injury or damage thereto caused or which might be caused by the Works; and

 

12.10.2

that the Works or any part thereof which was specified or designed by the Buyer infringes any registered design or other intellectual property right of such person.

13.

CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS

13.1

The Buyer shall use all information supplied by the Seller (in whatever medium including in written, oral, visual or electronic form and whether before or after the date of the Sale Contract) including all information relating to the layout or configuration of the Goods and information relating to the operation or specifications of the Goods (the "Confidential Information") only for the installation, operation and use of the Goods and shall not without the Seller's prior written consent disclose or permit the disclosure of such information except in confidence to those of its employees, officers and professional advisers who need to have access to it.

13.2

The provisions of clause 13.1 shall not apply to Confidential Information which: (i) the Buyer can prove was known to the Buyer before receipt; (ii) is in or enters the public domain through no wrongful default by or on behalf of the Buyer with effect from the date when that information enters the public domain; (iii) was received from a third party without obligations of confidence owed directly or indirectly to the Seller; or (iv) is required to be disclosed in order to comply with applicable law, to the extent of the required disclosure.

13.3

Within three (3) days of receipt of a request to do so made at any time and in any event if the Sale Contract is terminated, the Buyer shall promptly return or destroy (at the option of the Seller) all such Confidential Information.

13.4

The Seller reserves to itself all rights in the nature of copyright in all drawings, plans, diagrams, operation or installation manuals, specifications, lists of components, illustrations and images of the Goods or any part of them, all rights in all designs of or relating to the Goods or any part of them prepared or created by the Seller and all rights in the trade and service marks (registered and unregistered) used by the Seller in connection with the Goods or any part of them and the Buyer hereby acknowledges that it shall not acquire any such rights and that all such rights are, and shall remain, vested in the Seller.

13.5

To the extent that any copyright or rights in designs or trade or service marks referred to in clause 13 protecting or relating to the Goods or any goodwill associated with the Seller's trade marks vests in the Buyer by operation of law or otherwise, the Buyer hereby assigns (by way of assignment of present and future rights) without payment all such rights and goodwill to the Seller with full title guarantee. If a further assignment is required or if the Buyer is unable to assign such Intellectual Property and goodwill as there are differences between the laws of England and Wales and the applicable law, the Buyer shall forthwith execute all documents that may be necessary to effect the transaction that most closely resembles the commercial intent of an assignment and is permitted in the relevant territory. Pending the above assignments and remaining formalities relating to such assignments, the Buyer shall hold all such Intellectual Property and goodwill on trust for the Seller.

14.

ENTIRE AGREEMENT AND VARIATION

14.1

The Sale Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.

14.2

Each party acknowledges that, in entering into the Sale Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Sale Contract. Each party agrees that its only liability in respect of those representations and warranties that are set out in the Sale Contract (whether made innocently or negligently) shall be for breach of contract.

14.3

Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.

14.4

No variation of the Sale Contract shall be effective unless it is in writing and agreed by the parties (or their authorised representatives).

15.

GENERAL

15.1

A person who is not a party to the Sale Contract shall not have any rights to enforce its terms.

15.2

The rights of the parties to terminate, rescind or agree any variation, waiver or settlement to or under the Sale Contract are not subject to the consent of any person that is not a party to this agreement.

15.3

Any delay or failure by the Seller to exercise any right or remedy under the terms hereof shall not constitute a waiver of it or them and any of the Seller's rights or remedies may be enforced separately or concurrently with any other right or remedy now or in the future accruing to the Seller to the effect that such rights are cumulative and not exclusive of each other.

15.4

Unless otherwise agreed in writing by the Seller the Sale Contract is personal to the Buyer and the Buyer may not sell, transfer or assign the benefit of the Sale Contract.

15.5

Any written communication from the Seller to the Buyer or from the Buyer to the Seller shall be effective for the purposes of the Sale Contract and shall be sufficiently served if sent by letter whether delivered by pre-paid post or as an attachment to email or delivered by hand to the address of the other as referred to in the quotation or contract document forming part of the Sale Contract and if sent by post shall be deemed to have been received by the addressee 48 hours after the time of posting and at the date of sending or delivery if delivered by hand or sent as an email attachment.

16.

GOVERNING LAW AND JURISDICTION

16.1

The Sale Contract shall be governed by and construed in all respects in accordance with the law of Saudi Arabia. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to the Sale Contract. The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with the Sale Contract, the Sale Contract shall prevail.

16.2

Subject to clause 16.3, the parties submit to the exclusive jurisdiction of the courts of Saudi Arabia and agree that process may be served on either of them in the manner specified for notices in clause 15.5.

16.3

Nothing in this clause 16 shall limit the right of the Seller to take proceedings against the Buyer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the Seller from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

16.4

It is the Buyer's obligation to acquaint itself and to comply with all applicable requirements and restrictions imposed by law or by governmental and other authorities or corporations relating to the possession, use, import, export, or resale of the Goods. It is the Buyer's obligation to ensure that no Goods are exported or imported in violation of the laws of any jurisdiction into or through which the Goods are transported during the course of reaching their destination. Where necessary, the Buyer shall inform the Seller at a reasonable time before delivery of any documents which it is necessary for the Seller to provide in order to allow export of the Goods in compliance with the laws of any relevant jurisdiction.

16.5

The rights set out in this clause 16 are in addition to any other manner of service permitted by law at the time when service is made.

 

Updated May 2021

 

 

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