The Purchase Order Form, these Purchase Order Terms and Conditions, and any attachments thereto (collectively, the “Purchase Order”) are the exclusive terms and conditions for the delivery of the specified goods or materials and/or performance of the specified services and/or work (collectively, “Goods and Services”) by the seller (“Seller”) for the benefit of International Beverage and Filling Industries LLC SP, whichever of them is named as the purchasing entity in the relevant Purchase Order (“Buyer”), unless agreed otherwise in a separate contract signed by the authorized representatives of the Seller and Buyer excluding specifically the application of these Purchase Order General Terms and Conditions. Each Purchase Order constitutes a separate contract solely between the Seller and the entity named as Buyer in it, and no other entity shall have any liability or obligation under that Purchase Order. Buyer and Seller are each a “Party” and together are the “Parties.”
Upon acceptance of this Purchase Order by the Seller as set forth herein, this Purchase Order becomes a valid and binding contract between Buyer and Seller. This Purchase Order is deemed accepted by Seller upon the earlier to occur of the following: (a) the Purchase Order is sent to Seller and Seller does not object in writing to any of its terms or provisions within five (5) business days; or (b) Seller at any time otherwise delivers or performs all or any part of the Goods and Services. No change or alteration may be made to any term of this Purchase Order without the prior written consent of Buyer.
Seller should notify Buyer if the quantity ordered by Buyer in its Purchase Order does not meet the Seller’s minimum order quantity (MOQ), if any, within five (5) business days otherwise the Purchase Order quantity is deemed to have been accepted by Seller and shipment of goods will be as per the Purchase Order.
2.1 Unless otherwise specified in the Purchase Order, all Goods shall, at the time of delivery at the Delivery Point, have a remaining shelf-life of not less than 75% of their total shelf-life. If Goods are delivered with a remaining shelf-life below such percentage, the Seller shall automatically, and without the need for any further undertaking or request, compensate the Buyer at landed cost for any such Goods that expire, whether the Goods remain with Buyer or are sold by Buyer and then returned or rejected by Buyer’s customer(s).
2.2 The Goods supplied by the Seller shall be as per the order quantity mentioned in the Purchase Order. Buyer has the right to reject and return excess quantities at the expense and risk of Seller or keep the Goods under consignment without paying them until and if Buyer decides to buy them.
2.3 All shipments of Goods and performance of Services are subject to Buyer’s right of inspection. Within a reasonable period following delivery of the Goods and/or performance of the Services at the location specified in the Purchase Order or, if none is specified, at Buyer’s warehouse (“Delivery Point”), Buyer may inspect the outer packaging of the Goods and/or the Services performed and shall then either accept (“Acceptance“) or reject them. Buyer shall notify Seller in writing, together with supporting evidence, of any defect apparent from such visual inspection within thirty (30) days from the date of its discovery. Buyer may also reject any Goods or Services for defects that are not apparent from a visual inspection of the outer packaging, and/or for non-conformity with the specifications, any term of this Purchase Order or any other requirement set forth by Buyer, by notifying Seller in writing, together with the reasons for rejection, within sixty (60) days of Buyer determining or being advised of such defect or non-conformity. Title to the Goods shall pass to Buyer upon delivery at the Delivery Point, save that title to rejected Goods returned to Seller shall revert to Seller in accordance with Section 2.4. Transfer of title shall not constitute Acceptance. Buyer’s inspection, testing, Acceptance, or use of the Goods or Services shall not limit or otherwise affect Seller’s warranty obligations, which shall survive inspection, testing, Acceptance, and use of the Goods or Services.
2.4 Buyer shall be entitled to return rejected Goods to Seller at Seller expense and risk of loss for, at Buyer’s option, either: (i) full credit or refund of all amounts paid by Buyer to Seller and importation costs incurred by Buyer in relation with the rejected Goods; or (ii) replacement Goods to be received within the period specified by Buyer at Seller’s cost. Title and risk to rejected Goods returned to Seller shall transfer to Seller at the time Buyer sends back the Goods to the Seller. Seller shall not deliver Goods previously rejected unless the delivery of such Goods is approved in advance by Buyer and accompanied by a written disclosure of Buyer’s prior rejection(s).
2.5 Any Goods shipped on consignment will be accepted by Buyer as per the terms and conditions agreed between the Parties including but not limited to payment terms and storage charges to be recovered from Seller.
Unless otherwise specified in the Purchase Order, delivery of Goods shall be DDP (Incoterms 2020) at the Delivery Point. Each Party’s duties and obligations will be determined by the applicable Incoterm. Any other Incoterm or deviation shall apply only if expressly stated in the relevant Purchase Order.
Delivery or performance will be strictly in accordance with Buyer’s delivery or performance schedule. If Seller’s delivery or performance fails to meet such schedule, Buyer may, without limiting any of its other rights or remedies, purchase the Goods and/or seek performance of the service(s) by one or more third parties, and the difference between the cost of such substitute purchase or performance and the cost under this Purchase Order will be paid by Seller upon Buyer’s demand. Time is of the essence with respect to Seller’s delivery and/or performance under this Purchase Order. In the event of delay, the Seller shall pay delay damages/penalties to Buyer at the rate of 0.5% of the purchase price per week of delay, subject to a maximum of 5% of the purchase price. In addition, Seller shall pay to Buyer any penalties charged to Buyer by its customers in the event of non-delivery or delay in delivery resulting from or in connection with any action or inaction of Seller.
Risk of loss or damage to the Goods shall remain with Seller until the Goods are delivered at the Delivery Point (being Buyer’s warehouse unless otherwise specified in the Purchase Order), at which time risk shall pass to Buyer together with title in accordance with Section 2.3. Seller shall bear all costs and risks involved in bringing the Goods and Services to the Delivery Point, including any duty and clearance fees where applicable, unless the Purchase Order states otherwise.
6. CANCELLATION FOR BREACH BY SELLER
Buyer may terminate this Purchase Order, in whole or in part, for Seller’s breach of this Purchase Order, including but not limited to the failure to deliver the Goods and Services as and when specified. If Buyer terminates this Purchase Order for Seller’s breach, in addition to all of Buyer’s other rights and remedies under the law, Seller will be liable to Buyer for all damages, including but not limited to the cost of securing replacement Goods and Services, shipping charges for returned Goods and Services, any amounts previously paid by Buyer to Seller, and any penalties charged to Buyer by its customers as a result of late or no delivery caused as a result of or in connection with any action or inaction of Seller. Cure of any non-conforming Goods and Services by Seller may only be made with the prior written consent of Buyer, and Seller will be liable to Buyer for any additional shipping charges and other liabilities incurred by Buyer as a result of such a cure. This right of termination is in addition to and not in place of any other rights or remedies that Buyer may have at law or in equity.
Buyer, in its sole discretion and without cause, may terminate this Purchase Order, in whole or in part, at any time without incurring liability to Seller for lost profits or any other costs or damages, other than the proportionate value of the purchase price for Goods and Services performed or delivered. Payment due will be a percentage of the purchase price equal to the percentage of the work completed and/or any unit prices in the purchase price specified for Goods delivered.
Buyer will pay Seller only for such Goods and Services and at such prices as agreed upon pursuant to this Purchase Order. Prices include all amounts payable by Buyer, and no additional charges of any kind (including, without limitation, charges for transportation, delivery, boxing, packing, or other extras) will be payable by Buyer unless expressly set forth in this Purchase Order or otherwise specifically agreed to in writing by an authorized signatory of Buyer. The Seller will issue all invoices on a timely basis. The Seller shall issue an invoice with prices as mentioned in the Purchase Order net of any discounts, rebates and bonuses. The Seller’s invoice should include the Purchase Order reference. All invoices delivered by Seller must meet Buyer’s requirements, and at a minimum, shall reference the applicable Purchase Order and the UAE laws and regulations. Buyer will pay the undisputed portion of properly rendered invoices as per the agreed credit terms agreed with the Seller from the invoice date unless agreed otherwise in writing by Buyer. The payment will be made through the mode agreed between the Parties and any charges or costs incidental to the payment mode shall be to Seller’s account. Buyer shall have the right to withhold payment of any invoiced amounts that are disputed in good faith until the Parties reach an agreement with respect to such disputed amounts, and such withholding of disputed amounts shall not be deemed a breach of these Terms and Conditions, nor shall any interest be charged on such amounts.
Unless otherwise stated in the Purchase Order, prices are exclusive of VAT. Where VAT is chargeable, Seller shall issue a tax invoice compliant with UAE VAT laws and regulations, stating separately the VAT amount and rate, Seller’s tax registration number (TRN), Buyer’s name, address and TRN, the invoice date and number, the Purchase Order number, and the quantity, description and unit price of the Goods and/or Services. Buyer shall not be obliged to pay any VAT not properly invoiced.
9.1 In addition to, and without limiting any of Seller’s other representations and warranties, express or implied, Seller expressly represents and warrants to Buyer that: (a) all Goods and Services conform and will continue to conform to professional industry standards and to any description, sample, specifications or other documentation related to the Goods and Services made available to Buyer; (b) the Goods and Services are and will be fit for the purposes for which purchased, free from defects in materials and workmanship, and safe for their intended use; (c) Seller has all right, title and interest in and to the Goods and Services necessary to fulfill its obligations hereunder; (d) the Goods and Services are free from any liens, claims and encumbrances of any nature and do not and will not infringe the intellectual property rights of any third party; and (e) all Goods and Services will have been produced or manufactured or supplied in accordance with the requirements of all applicable U.A.E. laws, rules and regulations. All of Seller’s representations and warranties, both express and implied, also constitute conditions of this Purchase Order and will survive inspection, Acceptance, and payment by Buyer. Upon Buyer’s request, Seller shall inform Buyer in writing of the procedure for making a warranty claim.
9.2 The Seller shall establish and maintain appropriate business standards, procedures and controls to avoid any actual or apparent impropriety or conflict of interest with Buyer. This obligation applies to the dealings of the Seller’s employees and agents with the Buyer, its employees or its customers in connection with this Purchase Order.
All intellectual property rights in and to each of the Goods and/or Services shall vest in Buyer free and clear of all liens and encumbrances on receipt of payment by Seller for each delivered Goods and/ or Services performed. To the extent that any delivered Goods and/or Service performed contain any intellectual property of Seller, Seller hereby grants to Buyer a worldwide, royalty-free, non-exclusive, perpetual license to use, copy, modify and distribute such intellectual property as part of the delivered Goods and/or Service performed. Seller agrees to provide to Buyer all assistance reasonably requested to perfect the rights described herein, including obtaining all assignments and waivers of moral rights necessary or appropriate to vest the entire right, title, and interest in such materials in Buyer and its successors and assigns.
Neither Party shall be liable for any delay or failure to perform its obligations under this Purchase Order to the extent caused by an event beyond its reasonable control and without its fault or negligence, which it could not reasonably have avoided or overcome by the exercise of reasonable diligence (a “Force Majeure Event”). Force Majeure Events may include (without limitation) any act of God, war, any act of government or any agency thereof, any fire, flood, explosion, earthquake, hurricane, any epidemic or quarantine restriction, any act of sabotage, terrorism, or any strike, lockout or other work stoppages (other than those affecting only the affected Party’s own workforce). The Party affected by a Force Majeure Event shall notify the other Party in writing within five (5) calendar days of its occurrence and shall employ reasonable efforts to (a) advise the other Party of the expected duration of its inability to perform, (b) mitigate disruption and cost to the other Party, and (c) resume performance as soon as possible. If Seller is unable to perform due to a Force Majeure Event, Buyer may terminate this Purchase Order by written notice without incurring liability to Seller for lost profits or any other costs or damages, other than the proportionate value of the purchase price for Goods and Services performed or delivered.
Seller represents and warrants that (a) it is not subject to any trade sanctions including but not limited to sanctions imposed by the United States of America (“U.S”), European Union (“EU”), the United Arab Emirates (UAE), and/or the United Nations (“UN”) and any other applicable trade sanctions laws and regulations, (b) it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including but not limited to trade sanctions imposed by the U.S, EU, U.A.E and/or UN) with respect to Goods and Services sold/provided hereunder, (c) none of Seller’s officers, directors, managers, supervisory board members, employees, partners, owners or shareholders is subject to any trade sanctions including but not limited to sanctions imposed by the U.S, EU, UAE and/or the UN, and (d) no Goods provided hereunder shall be of an origin which is subject to any trade sanctions including but not limited to sanctions imposed by the U.S, EU, UAE and/or the UN,
Seller represents and warrants that it is complying and shall comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and has not, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any government official for the purpose of influencing any act or decision of such government official. Seller represents and warrants that it will comply with all applicable Buyer policies (shared by Buyer) and Buyer instructions.
If the Seller has any integrity concerns, suspects or knows of a violation of anti-bribery and anti-corruption requirements, or experiences inappropriate and/or unethical conduct during business transactions, the Seller shall report the same to the Buyer.
Buyer requires the Seller to not provide any gift or anything of value to Buyer’s employees on personal or professional occasions or in exchange for any service or favor.
Buyer requires the Seller to not engage in any form of modern slavery or human trafficking, forced labor, or child labor.
Seller shall provide evidence of compliance with the foregoing as Buyer may reasonably request from time to time. Seller will obtain and maintain and furnish to Buyer upon request any and all permits, licenses, approvals, certificates, and other documents required by Buyer or otherwise required by applicable law.
Seller shall indemnify Buyer in the event of non-compliance with this Section 12.
To the fullest extent permitted by law, Seller will defend, indemnify and hold harmless Buyer from and against any and all losses, claims, allegations, demands, suits, proceedings, investigations, prosecutions, actions, causes of action, liabilities, obligations, costs, expenses, assessments, settlements, judgments, interest, penalties (including legal expenses and reasonable attorneys’ fees), damages or injuries of any kind or nature whatsoever (including, without limitation, damage, loss or destruction of real or personal property, personal or bodily injury or death) to Buyer and all other persons caused by, resulting from, arising out of, or occurring in connection with Seller’s: (i) supply of defective Goods or Services or delays in supplying Goods and Services, (ii) breach of any term or provision of this Purchase Order or any other term agreed to by the Parties or any representations and warranties made by Seller; (iii) violation of applicable laws and regulations; (vi) performance or non-performance by Seller in connection with this Purchase Order; (v) infringement of any intellectual or other propriety right of any third party; or (vi) negligent acts or omissions or intentional misconduct. Buyer will provide Seller with notice of a claim for indemnification under this section. In the event Seller fails to prosecute and conduct the defense diligently and in good faith, Buyer may take any and all actions at Seller’s expense that it deems necessary or desirable to preserve its rights with respect to such claim, including the right (but not the obligation) to engage counsel and defend, compromise or settle such claim, without waiving or otherwise limiting its rights under this section. The Seller will consult with Buyer at all times and keep Buyer informed of all material matters relating to its indemnification of Buyer, including compromise or settlement of any claim. Buyer will be entitled to participate in any litigation and/or negotiations relating to any compromise or settlement with counsel of its own choice. The Seller will not agree to any compromise or settlement of any third-party claim or permit default or consent to entry of any judgment in respect of such claim without the Buyer’s prior written consent. For purposes of this section and the previous section, “Seller” means each of Seller, any subcontractor engaged by Seller in connection with Goods and Services, and their respective employees, officers, directors, agents, and representatives. References to “Buyer” in this section include, and provisions of this section will inure to the benefit of, Buyer, its affiliated entities, and their respective employees, trustees, directors, officers, agents, successors, and assigns. The provisions of this section will survive termination of this Purchase Order.
Seller will perform its obligations under the Agreement as an independent contractor and in no way will Seller or its employees be considered employees, agents, partners, fiduciaries, or joint venturers of Buyer. Seller and its employees will have no authority to represent Buyer or its affiliates or bind Buyer or its affiliates in any way, and neither Seller nor its employees will hold themselves out as having authority to act for Buyer or its affiliates.
The Seller may not assign or subcontract this Purchase Order, in whole or in part, without Buyer’s prior written consent. Seller’s permitted assignment or subcontracting of this Purchase Order, or any part thereof, will not release Seller of its obligations under this Purchase Order. It will remain jointly and severally liable with the assignee or subcontractor for any obligations assigned or subcontracted. The acts or omissions of any subcontractors of the Seller will be deemed to be the acts and omissions of the Seller. Buyer may assign this Purchase Order, in whole or in part, to any Buyer affiliate, without the Seller’s consent. This Purchase Order shall inure to the benefit of and be binding upon the Parties and their respective legal personal representatives, heirs, executors, administrators, assigns, or successors.
Each Party (the “Receiving Party”) shall keep strictly confidential all non-public, confidential or proprietary information of the other Party (the “Disclosing Party”) or its suppliers, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts and rebates, disclosed or made accessible in connection with this Purchase Order in any form, whether or not marked as confidential (“Confidential Information”). The Receiving Party shall use Confidential Information solely for the performance of this Purchase Order and shall not disclose or copy it without the Disclosing Party’s prior written consent, except to its employees, advisors and permitted subcontractors on a strict need-to-know basis who are bound by equivalent confidentiality obligations. Upon the Disclosing Party’s request, the Receiving Party shall promptly return or destroy all Confidential Information, save to the extent retention is required by applicable law. The Disclosing Party shall be entitled to seek injunctive relief, to the extent available under applicable laws, for any breach of this Section. This Section does not apply to information that is: (a) in the public domain other than through breach of this Section; (b) known to the Receiving Party at the time of disclosure; or (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party.
Unless otherwise stated in a Purchase Order, all prices or other payments stated in the Purchase Order are inclusive of packaging, carriage and insurance and any taxes or duties (excluding VAT), which (if applicable) are the responsibility of and shall be paid by the Seller. Notwithstanding any other provision in these terms and conditions, the Seller is responsible for customs clearance and payment of all import duties.
By accepting this Purchase Order, the Seller agrees to comply with all applicable data protection laws and regulations with respect to the personal data disclosed by Buyer to the Seller. The Seller shall apply proper physical, technical and organizational measures to ensure a level of security of personal data appropriate to the respective risk and the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services. The Seller will use all reasonable endeavors to deliver the applicable privacy notices as may be required by Buyer under the applicable laws and regulations and shall abide by Buyer’s data and privacy policy as made available by Buyer to Seller or at website (www.stardrinks.com) from time to time. The Seller agrees that it will not withhold or delay its consent to any changes to this Section which in Buyer’s or its affiliates’ reasonable opinion are required to be made in order to comply with applicable data protection laws and regulations and/or with guidelines and advice from any competent supervisory authority and agrees to implement any such changes at no additional cost to Buyer.
The Seller further agrees to the collection and use of personal data of Seller, its employees, owners, management and consultants by Buyer for the purposes of communicating with the Seller, providing the Goods and the Services, marketing the Seller’s products and services, and checking compliance with contractual and legal requirements applicable to Buyer or its suppliers including but not limited to trade sanctions.
This Purchase Order will be governed by and construed according to the laws of the United Arab Emirates and the Emirate of Dubai without regard to principles of conflicts of law. All actions or proceedings relating to the subject matter of this Purchase Order shall be referred to and finally resolved by the courts of Dubai.
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