Sales Terms and Conditions
1. Interpretation
1.1 In these terms and
conditions of Sale, except where the context otherwise requires, the following
words have the following meanings:
1.1.1. "Seller'"
shall mean ABULKHASE PLC or its principals.
1.1.2. "Purchaser" shall mean the person or
persons, body whether corporate or incorporate or other organization whose
order for Goods and/or Services is accepted by the Seller.
1.1.3. "Contract'" shall mean the contract made or to be
made between the Seller and the Buyer subject to these terms and conditions.
1.1.4. "Goods" shall mean the items (could be vehicle,
equipment, machines, accessories and spare parts) which are the subject matter
of the Contract.
1.1.5. “Services” shall mean but not limited to: installation,
commissioning, repair, maintenance, overhaul, rent, contracting, transporting,
and consulting which are the subject matter of the Contract, whether it is
provided separately or as a part of the sale of Goods.
1.2. No communication
statement or representation from the Seller or any of its employees whether
given orally or in written is to be treated as a representation condition or
warranty conferring any contractual rights for the Purchaser or imposing any
contractual obligations on the Seller or is to be treated as being part of the
contract unless otherwise incorporated in writing as a specific term of the
contract and the contract is signed by the authorized personnel of the Seller.
1.3. This document
contains the only terms and conditions upon which the Seller will do business
with the Purchaser and shall prevail not withstanding any price or other
conditions contained in any purchase order acceptance of estimate or quotation
or otherwise brought to the Seller's notice. Any other agreement representation
or promise or understanding of any kind will not be considered unless
expressed in writing and accepted in writing by the Seller. This will only be
the condition in which the agreement shall vary supersede or operate as a
waiver of these terms and conditions.
2.
Specification:
2.1. The specification of the vehicle and/or the machine
and/or product and or description of services is as per the manufacturer’s
current standard for the Ethiopian market and is subject to change without
prior notice due to the manufacturer's continuous improvement in technology.
These details and shall be attached as part of the sales document.
3. Offer
Validity:
3.1. The price shall remain valid for the period specified
and is subject to the current levels of ocean and/or air, and/or rail, and/or
land freight – transportation charges.
3.2. The price may,
however, be subject to change based on changes to rate of fuel prices, customs
duty, taxes & its mode of calculation, foreign exchange fluctuation
from current rate (i.e. between ETB & US Dollar and or appropriate
exchangeable currency) and Unanticipated Bank Regulation on interest and Inland
Transport expenses from Djibouti to Addis Ababa and/or any change of law
(legislation) of any hierarchy rendering the Seller’s obligation more onerous
and/or an increase in the price of materials necessary for the performance of
the Seller’s obligations under the Contract.
3.3. The Seller reserves
the right to cancel the contract of sale in the event of changes in any
of the above, should the customer refuse to accept any adjustments or
amendments as a result of such changes.
3.4. The offer for Ex-stock (defined as
goods that are readily available for immediate delivery from the Seller’s
store) and offer for goods in-transit (defined as goods under shipment and/or
booked for production) delivery of items is subject to prior sales on a first
come first serve basis.
4. Delivery
Time:
4.1. The delivery time of
the vehicle and or machinery and or product stipulated above shall be from the
date of confirming/signing of acceptance and receipt of payment as
per agreement indicated in the Proforma Invoice (PI) and the relevant Contract.
4.2. The time fixed
above is conditional upon or subject
to the availability of vessel bound to the port of unloading and/or an
unfettered access to the place of delivery, timely port clearance, availability
of inland transport vehicle/train, timely release of Goods by customs authority
and/or any other relevant government authority.
4.3. The Seller shall not
be liable to deliver the Goods and to provide their services for such failure
that arises due to Force Majeure, as defined under the Ethiopian Civil Code and
it includes acts of strikes and/or lock-outs and/or increase in the price of
Goods and/or inputs affecting the Seller’s performance of the Contract and/or
enactment of new legislations affecting the Seller.
4.4. Any timeline, date
or period for delivery given by the Seller is intended as an estimate only and
the Seller shall not be under any liability, whatsoever, for delay in delivery
or the consequence thereof.
4.5. In case of None
Stock Delivery, the Seller doesn't accept any responsibility whatsoever for any
damage, shortages or loss in transit for Goods which are carried by an
independent carrier engaged by the Purchaser.
4.6. Delivery for Duty-Free-Goods from
bonded warehouses depends on the timely presentation of the relevant and valid
duty-free privilege confirmation documents by the Buyer from the appropriate
government office/authority.
4.7. All delivery of Goods and/or Services
shall be effected by the Seller after full settlement of the relevant payment
by the Buyer.
5. Claims:
5.1. The Purchaser shall
inspect the Goods immediately on delivery thereof and within three days from
such inspection give notice in writing to the Seller and or its Principal of
any matter or thing by reason whereof it alleges that the Goods are not in
accordance with the Contract. If the Purchaser shall fail to give such notice
the Goods shall be deemed to be in all respect in accordance with the Contract
and the Purchaser shall be bound to accept and pay for the same accordingly.
5.2. Where it is
alleged that the Goods are not in accordance with the Contract, the Seller or
its representative(s) shall be given reasonable opportunity to inspect the
Goods and rectify defects, if any, and take any other relevant measure(s). If
after inspection the Seller agrees to return or replace any Goods, including a
part thereof, (and any such agreement shall be without prejudice to its rights
under these terms and conditions) the Goods on being received by the Seller
must be in the same condition that they were in on inspection.
5.3. The Seller shall be
under no liability in respect of any Goods no longer in their original state
which have been improperly handled and/or stored and/or installed by the
Purchaser and/or any third party and/or in respect of Goods which have
been altered or processed in any way unless the Seller is satisfied in all
respects with such alternations or processing. The Seller shall in no
circumstances be liable for any consequential loss and/or damage.
6. Warranty Conditions:
6.1. The Seller warrants
that Goods manufactured by its supplier and delivered hereunder will be free of defects in material and workmanship for a period
stipulated in the warranty period
from the date of
invoice and as per the manufacturer’s warranty policy.
6.2. The Seller will
repair or replace, at its option, any part which is found by the Seller upon
its inspection to be defective in material or workmanship during the periods
described in warranty period without charge to the Purchaser.
6.3. Any part which is
replaced shall become the property of the Seller.
6.4. However, manual and
procedure of the manufacturer shall govern.
6.5. This warranty does
not apply to failures occurring as a result of abuse, misuse, negligent repairs
and/or installation by the Purchaser or any third party, corrosion, erosion,
normal wear and tear, alternations and modifications made to the Goods without
the expressed written consent of the Seller or failure to follow the
recommended operating practices, service and maintenance procedures as provided
in the Goods operating and maintenance publications and written recommendations
and/or warnings of the Seller.
7. For Motor Vehicles -
Color choice:
7.1. If the subject Good
is a vehicle, the exterior body color is as per the buyer's choice from the
manufacturer’s current standard color catalogue.
7.2. However if the
subject Good is anything other than vehicle the buyer agrees to accept the
manufacturer’s standard color available for delivery by the Seller.
8. For Motor
Vehicles - Additional Fees:
8.1. A 2%, and/or any
other percentage provided by law, vehicle or machine registration fee and plate
numbering charge shall be to the account of the Purchaser.
8.2. As of the date of
delivery notification, storage/parking fees in excess of 15 (Fifteen) calendar
days shall be to the account of the Purchaser.
8.3. Any storage/parking
of a vehicle or a machine at the Seller’s place, after the 15th date from the
date of delivery notification shall be deemed constructive possession by the
Seller on behalf of the Purchaser.
8.4. All Bank charges
and/or taxes are to the Purchaser’s account, in case of bank transfer payments
or bank commission fees.
9. Execution:
9.1. These terms and
conditions shall apply to all contracts/confirmations for the sale of Goods
and/or services by the seller, and any conditions of purchase or other
terms to which any order placed by the Purchaser shall be of no effect
whatsoever nor shall any variation or alterations of these
conditions be of any effect unless made in writing and signed
by the Seller.
10. Termination and
Suspension:
10.1. The Seller shall be entitled at
its option without prejudice to its other rights and remedies either to suspend
delivery, make partial delivery under any or every contract and/or may
determine any or every contract without the Seller being under any liability
whatsoever but without prejudice to the Seller's rights accrued in respect of
deliveries made in any of the following events:
10.1.1. If the purchaser
refuses to pay the Seller any storage and or upkeep costs of the Goods beyond
the last date of delivery notification. The amount of payment shall be in
accordance to the Seller’s rate for these jobs.
10.1.2. If the Purchaser
fails and/or refuses to take delivery of or to collect any Goods on
arrival notification.10.1.3. If
the Seller has any bona fide doubts as to the solvency of the Purchaser.
10.1.4. If the Purchaser
commits any act of insolvency and/or its bank accounts and/or properties are
subjected to an injunction order by a court of law and/or any governmental
authority.
10.1.5. If the Purchase
commits any breach of any contract between the Purchaser and the Seller.
10.2. The Seller be communicated in
writing to exercise its rights of suspension and termination at any time during
the continuance of the circumstances provided above and in the event of any
such suspension the Seller shall be entitled as a condition of resuming the
Contractual relationship to require pre-payment of or such security as it may
require for the payment of the price of any further delivery.
11. Force Majeure:
11.1.If owing to any strike
industrial dispute, fire breakdown of machinery or any cause whatsoever beyond
the Seller's and or its principals control the Seller is unable to deliver the
goods at the time, date or period for delivery given by the Seller, the Seller
may by notice to the Purchaser claim an extension of time for the delivery.
11.2.Provided that the requested
period of extension exceeds three months, the Purchaser shall have the right to
determine the contract by notifying in writing to the Seller but without
prejudice to the rights of the Seller in respect of the deliveries already
made.
11.3.The following occurrences shall
also be deemed cases of Force Majeure:
11.3.1. a strike or lock-out
affecting the manufacturer and/or the Seller;
11.3.2. an increase in the
price of the Goods and/or any input necessary for the Seller’s performance of
its obligations under the Contract and/or
11.3.3. an enactment of new
legislation(s) whereby the obligations of the Seller become more
onerous.
12. Waiver:
12.1. No failure or delay on the part
of the Seller and/or its principals to exercise any of its rights
under the Contract shall operate as a waiver thereof nor shall any single or
partial exercise of any such right exclude any other and/or future
exercise thereof.
12.2. Any Waiver of a breach of
any provision of the Contract shall not affect the Principal and/or Seller's
rights in the event of any further or additional breach or breaches.
13. Severability:
13.1. Each obligation contained in
any clause or sub clause of these terms and conditions shall be treated as a
separate obligation and shall be seperately enforceable as such.
13.2. The non-enforceability at any
time of any clause or sub-clause of these terms and conditions shall not
prejudice the enforceability of the remainder of the terms and conditions.
14. Governing Law and
Jurisdiction:
14.1. These terms and conditions and
the Contract of which they form part shall be governed and
construed in accordance with the laws of the Federal Democratic Republic of
Ethiopian, including its Conflict of Laws principles.
14.2. Parties hereto accept the
jurisdiction of the Federal Courts of Ethiopia in Addis Ababa.
15. Penalties:
15.1 For whatever macro & micro
factors, order cancellation shall result in 10% penalty on unit price.
15.2 Change to consignee after
order confirmation is possible subject to 1.5% service charge on the unit
price.
15.3
Where the Buyer fails to present the necessary/relevant and valid
duty-free privilege confirmation documents from the relevant government
office/authority, the Seller shall have the right to request full payment of
all the costs to deliver the Goods on a duty paid basis and impose 2% penalty.