GENERAL TERMS AND CONDITIONS OF SUPPLY
TOBACCO PRODUCTS INTERNATIONAL FZ-LLC
Please read the following provisions, terms and conditions, carefully as the sale of goods by TPIF will be subject to these provisions, terms and conditions, exclusively. Please do not conclude the applicable order or sale if you do not agree or do not understand the meaning of any of these provisions, terms and conditions.
No waivers, leniencies or deviations therefrom shall be enforceable against any TPIF Group entity unless expressly agreed in writing and signed by a director of TPIF.
TPIF will NEVER amend its bank account details through electronic correspondence or provide instructions to pay into a separate bank account. In the event of a request (in whatever form) for payment into a bank account not reflected above, DO NOT EFFECT PAYMENT and kindly contact the following numbers:
+971 (0) 55 388 4352; or
+971 (0) 52 349 9212
Failure to adhere to the above will NOT affect the payment obligation as stipulated herein, which explicitly remains due and expected in accordance herewith;
Scope – These Terms and Conditions
These general terms and conditions of sale (hereinafter referred to as the “Terms of Sale”) shall apply to all products, accessories or services (“Goods”) that are sold by TPIF to the customer (“Customer”). The Terms of Sale, together with TPIF’s specific conditions contained in its order confirmation, invoices or contract of sale (“Order Confirmation”) and only such other documents, as are specifically incorporated by reference, constitute the entire agreement between the Customer and TPIF, and supersede, in their entirety, any other conflicting terms and conditions proposed by the Customer and any oral or written communications that are not expressly incorporated herein. Agreements entered into between TPIF, or their agents and third parties shall only become valid upon TPIF’s express written confirmation by a director of TPIF.
In the absence of a clause to the contrary, documentation, records and estimates are sent for information purposes only, and TPIF’s offers are not binding without Order Confirmation. No additions to or variations from the terms hereof, whether set forth in the Customer’s purchase order or in any other documents, including shipping documents, shall be binding upon TPIF unless expressly agreed in writing by a director of TPIF. The Customer’s signature and return of Order Confirmation or, in the alternative, the Customer’s failure to reject it within three days from receipt thereof shall constitute the Customer’s acceptance of the contractual terms defined herein. TPIF’s failure to exercise any right shall not be deemed to be a waiver of such right.
If any of the Terms of Sale or part thereof shall be determined to be void, unenforceable or illegal in whole or contained in part, such determination shall not affect the validity of the other terms and conditions herein. In case of conflict between the provisions in the Order Confirmation and the wording of the present Terms of Sale, the provisions in the Order Confirmation shall prevail.
2. Terms of Payment – Prices
The price of any Goods sold shall be at the price as per the TPIF’s Order Confirmation in respect of a specific order, or in the absence of a written quote, shall be TPIF’s elected market price at the time of dispatch of the Goods from its origin.
Any price letters distributed, or advertisements placed by TPIF are for guideline purposes only and shall not be binding on the TPIF.
Notwithstanding the placing of an applicable order by the Customer and the acceptance thereof by TPIF, TPIF shall be at liberty to revise quotations or prices with or without notice to the Customer, inter alia in the event of an increase in the cost of production or transport of the Goods or currency fluctuations which occurs after the date of placing the applicable order.
The Customer shall pay the amount due to TPIF in accordance with the agreed trading terms and/or Order Confirmation, into an account specified by TPIF to the Customer in an Order Confirmation, free of deduction, demand, set-off, bank charges or commission. TPIF may assign its right to receive payment in terms of an Order Confirmation to a referenced beneficiary bank. The stated assignment will be outlined on the applicable Order Confirmation, and the Customer is obliged to effect payment to the bank account outlined on the applicable Order Confirmation, which will not be amended.
All amounts due to by the Customer to TPIF shall be made directly to TPIF. No payment made to TPIF’s sales representatives, employees, agents or third parties shall be regarded as proper payment to TPIF until such time as the funds have been credited to the Customer’s account as cleared funds.
No discount or rebate granted to the Customer shall be binding on TPIF unless a director of TPIF has agreed to such discount or rebate in writing. No other person may grant a discount or rebate on behalf of TPIF.
Should TPIF submit a quotation to the Customer for the sale of Goods, such quotation and the availability of quoted items and prices are only valid for a period of 5 (five) days after the date of the applicable quotation and are subject to change after the aforementioned 5 (five) day period.
TPIF will allocate any payments received firstly to costs and fees incurred by TPIF, thereafter to arrear or penalty interest (if any), thereafter to interest and thereafter the balance (if any) to the principal debt due and / or owing to TPIF, provided that the longest outstanding principal debt due and/or owing shall be settled first.
In all cases where the Customer uses a postal banking, electronic or similar method or service to effect payment, the supplier of such shall be deemed to be the agent of the Customer.
Unless the Customer objects to the correctness of any entry on any statement, delivery note and/or invoice within 7 (seven) days of the date of dispatch of such statement and/or invoice, the Customer shall be deemed to have accepted that such entries are correct and that it does not dispute such entries.
Notwithstanding the timeous raising of a complaint or dispute of liability by the Customer, the Customer shall, under no circumstances whatsoever, be entitled to withhold payment in respect of the Goods delivered by TPIF, pending the resolution of such dispute or complaint. In any event, in the event of payment delay, the Customer shall not be entitled to take any steps (neither sale, nor processing) which may affect Goods. All bank fees, save the TPIF’s bank fees, shall be borne by the Customer.
Where the due date for payment falls on a bank holiday, then the amount shall be paid by the Customer on the following business day, except if such succeeding business day falls into a subsequent month in which event the due date for payment shall be the immediately preceding business day.
If the Customer fails to pay on the due date stipulated, then the Customer shall be obligated to pay, ipso jure and without prior notification,
interest at a rate of 2% above EURIBOR three months in effect at the date of the invoice beginning from the due date stipulated, and
a fixed compensation amount, amounting to 10% of the invoice amount as a damage provision without prejudice to any other rights of TPIF caused by said payment failure.
3. Transfer of risk – Delivery – Shipment – VAT
Except as may be otherwise specified in writing, the transfer of risk shall take place in accordance with the applicable Incoterm – latest version of the Incoterms issued by the ICC (“Delivery”). Should the Customer fail to take delivery of Goods, TPIF may store them at the Customer’s risk and expense and following a notification of their availability, invoice them as having been delivered. In any event, TPIF remains entitled, without any special notice, to resell them and to claim applicable damages.
The Customer is required to disclose to TPIF the location of the Goods delivered to it by TPIF of any change concerning the Customer’s registered address and/or the address of the premises in which any Goods are ordinarily kept and the name and the address of any other person to whom possession of the Goods has been transferred. Should the Customer cause the Goods to be delivered to rented premises, the Customer shall immediately inform the landlord of such rented premises or any persons laying claim thereto of the reservation of ownership (in accordance with clause 6 below) by TPIF in respect of such Goods.
Should TPIF, at its sole discretion, pack and deliver the Goods in returnable containers; such containers shall remain the property of TPIF and shall be returned to TPIF as soon as possible.
All costs related to the recovery of the Goods, shall be for the account of the Customer. The Customer shall at all times whether during or after termination or expiry of the applicable order indemnify and keep TPIF indemnified against all losses, claims, damages, liabilities and expenses (including all reasonable legal fees) incurred in connection with the removal of any repossessed goods.
Unless otherwise specified in Order Confirmation, TPIF shall determine the route and means of transportation, as well as the selection of forwarding agents and carriers. The Customer shall be responsible to supply to TPIF, sufficiently in advance in order to permit TPIF to make the necessary shipping arrangements, all appropriate information including (a) marking and shipping instructions, (b) import certificates, documents required to obtain necessary government licenses and any other documents prior to their shipment, and (c) the Customer’s confirmation that it has caused the opening or establishment of a letter of credit if required. If any such instructions, documents or confirmations are not so received or would (in TPIF’s sole judgment) require unreasonable expense or delay on its part, then TPIF may, at its sole discretion and without prejudice as to any other remedies, delay the time of shipment and/or cancel said contract or order.
Signature by the Customer, or any employee of the Customer, or person at any address nominated by the Customer, notwithstanding that it might be incorrect, on the delivery note or invoice shall be prima facie proof of proper delivery of the Goods to the Customer.
Any delivery times quoted for delivery by TPIF are estimates only and shall not entitle the Customer to cancel any order and / or to claim any damages for failure by TPIF to deliver within such delivery times unless such non-compliance by TPIF falls outside the tolerance. It is hereby recorded that any delivery times quoted by TPIF to the Customer shall be subject to a tolerance period of 10 (ten) business day before or after the quoted delivery date. However, regardless of the aforementioned provision, in the instance that TPIF is unable to deliver within the tolerance as a result of an act of god, strikes, fire, riot, war (whether declared or not), embargoes, export control, fuel shortages, any power failure and / or shortages, or any other reason whatsoever not within the reasonable control of TPIF, the obligations of TPIF shall be deemed to be suspended. TPIF shall give the Customer notice of such fact as soon as reasonably possible, and the parties shall negotiate in good faith as to when delivery is to occur. TPIF shall not be liable for any damages incurred as a result of events contemplated in this provision. In the instance that the parties should fail to agree as to when delivery is to occur TPIF shall be entitled to deliver within a reasonable period of time.
TPIF may, make delivery of the Goods to the Customer in instalments or in such other manner as may be agreed to. The Customer shall be obliged to accept delivery of each such instalment.
Where Goods are delivered in instalments, the invoices relating to such separate deliveries shall be paid as if the Goods were the subject of a separate order. No payment shall be postponed or withheld by virtue of delay or non-delivery of any instalment, nor shall such non-delivery or delay of any instalment affect the balance of the applicable order or entitle the Customer to cancel the applicable order.
TPIF shall be entitled to withhold delivery of any undelivered instalments until all payments for any delivered instalment have been made in full.
Should the Customer fail to take delivery of the Goods promptly, or in any way delay delivery of the Goods, the risk in such Goods shall immediately pass to the Customer and the Customer shall become liable to pay TPIF the reasonable costs of storing, insuring and handling the Goods, in addition to the purchase price, until delivery takes place.
In the event that the supply of Goods is entitled to VAT exemption due to intracommunity sales or the export destination of Goods delivered, and the Customer takes Delivery at its own risk and own expense for the whole or for a part of the carriage or transport (delivery terms EXW, FOB, FCA, etc.), TPIF, at its sole discretion, shall only apply for a VAT exemption if the Customer provides it with substantial proof (transport document: CMR, bill of lading, CIM, export declaration, etc.) of carriage or transport to the country of destination.
(a) On TPIF’s request, the Customer shall send to TPIF within 10 (ten) working days from the receipt of the TPIF’s request the following:
the copy of invoice for the delivered goods with the date and legible signature (name and surname) confirming the receipt of the goods delivered to the address given on the invoice in the assortment and quantity defined in the delivery specification and as referred to on the invoice;
the copy of delivery note or transport document on which the confirmation of delivery of goods is placed.
(b) In case when the time limit (which is defined in point a above) is not respected, TPIF has the right to charge the Customer with fines of one hundred US Dollars for each day of delay. The fine however, cannot exceed the VAT amount due on the delivery value, expressed in Dollar.
(c) The Customer is obliged to inform TPIF immediately (within 1 to 3 days) about:
Change of the Customer’s VAT identification number for intra-community transactions,
Change of the Customer’s company’s name and address.
4. Inspection – Conformity
All deliveries are subject to the normally accepted tolerances as to dimensions and weight. Upon Delivery the Customer shall carry out an inspection of Goods to check weight and grade as stated in Order Confirmation and any apparent defects and damage to Goods (surface faults, package faults, etc.) shall then be noted. Goods shall be considered automatically accepted upon delivery to the Customer, if the Customer fails to make any comments in writing in respect thereof not later than 5 (five) days after their delivery and before Goods undergo any further processing. No claim shall be accepted by TPIF in respect of any defect, deficiency and/or failure of Goods to meet the specific terms of the order which a reasonable inspection should have revealed but for which said inspection was not made.
5. Liability – Claims
TPIF warrants that the Goods are in conformity with the specifications contained in Order Confirmation. The Customer shall have communicated to TPIF all necessary information to ensure (a) the adequate elaboration of these specifications; and (b) relative to the alteration and/or the final use of Goods and recognizes that TPIF’s obligation of conformity is fully satisfied when these specifications have been met at the time of Delivery.
Any technical advice provided by TPIF, before and/or during the use of Goods, whether provided verbally or in writing or by way of trials is given in good faith but without any warranty on the part of TPIF. TPIF’s advice shall not release the Customer from his obligation to test Goods supplied by TPIF as to their suitability for the intended processes and uses. The use and processing of Goods are undertaken solely at the Customer’s risk.
Undetectable defects at delivery must be notified to TPIF immediately upon discovery, by registered letter return receipt requested, but, in any event, no later than 2 (two) months after Delivery (The Customer having the obligation to inspect Goods thoroughly during the above-mentioned period). The notification of defects and faults has to be supported with documents proving the claim justification. Goods shall not be considered by TPIF as defective when the value of the defect claimed by the Customer does not exceed a value of US$ 5000 (five thousand US Dollars).
In any event, the Customer (i) must fulfill its obligation of mitigation of damages (ii) is not entitled to delay the payment of any outstanding invoices. If Goods are considered by TPIF as defective, then TPIF is exclusively obliged, at its sole discretion, either (i) to replace or reimburse such Goods, or (ii) if the price has not already been paid by the Customer, to reduce such price or to cancel the said order or contract. It is hereby expressly stated that TPIF shall not be liable for any loss of processing expenses, loss of production, loss of revenue and/or any other consequential or special loss or damage directly or indirectly sustained by the Customer or by any other person whatsoever. TPIF can only be held liable for damages caused by its gross negligence or willful misconduct duly proved by the Customer, and TPIF’s liability will in any event be limited to 100% of the invoiced value of the defective or damaged Goods.
6. Warranties – Indemnities by the Customer
The Customer makes the representations and warranties set out in this clause as at the acceptance date of each Order Confirmation and for the duration of each applicable order and acknowledges that TPIF enters into each Order Confirmation or agreement to sell Goods to the Customer in reliance on these representations and warranties, each of which is material and a material representation inducing TPIF to enter into stated order or agreements.
The Customer has the power to execute and deliver each Order Confirmation (specific reference to these Terms of Sale) and to perform all its obligations thereunder (including, without limitation, the payment of all amounts) and all corporate and other action required to authorise its execution and its performance of such obligations, have been duly taken.
The Customer is not prohibited in terms of its constitutional documents, or otherwise, from entering into an Order Confirmation (or these Terms of Sale) or transactions contemplated by it to which it is a party.
All information (as supplemented from time to time) that has been or will hereafter be made available to TPIF by the Customer or any of its representatives in connection with the transactions contemplated herein is and will at all times be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements were or are made.
The Customer agrees to supplement such information from time to time so that the same remains correct and acknowledges that TPIF is acting in reliance on the accuracy of information supplied to it without independent verification.
No legal suit, action, proceeding or process or any other steps have been taken or, to the best of the Customer’s knowledge and belief, after having made all reasonable enquiries in this regard, threatened for the winding-up or liquidation (whether voluntary or involuntary, provisional or final) or de-registration of the Customer or for the appointment of a liquidator or similar officer over the Customer or over any assets of the Customer.
The Customer hereby warrants, represents and undertakes that:
the Customer has supplied all the require Know Your Client documentation to TPIF;
the Customer is not carrying on business recklessly, with gross negligence, with intent to defraud or fraudulent purposes;
the Customer it is not carrying on business or trading under insolvent circumstances;
that no application to court for an administration order has been made in respect of the Customer;
the Customer will advise TPIF immediately of any facts or circumstances which cause or which are reasonably likely to cause any representation or warranty to be false or misleading in any material respect; and
the Customer is in full compliance with all applicable laws, regulations and standard industry practices, which includes but is not limited to the protection of the environment, illicit trade or sanctions and is not aware of any circumstances which may prevent full compliance in future.
The Customer shall at all times whether during or after termination or expiry of an Order Confirmation or an applicable agreement of sale indemnify and keep TPIF indemnified against all losses, claims, damages, liabilities and expenses (including all reasonable legal fees) which may arise (because of this agreement or any other facility and/or TPIF having an interest in the Customer’s assets) in respect of a breach of, or a failure to meet any of the aforesaid representations, warranties and/or undertakings in this clause.
The Customer undertakes to notify TPIF immediately of:
any change of address;
cessation of business; and / or
change in ownership or shareholding of the Customer.
The Customer acknowledges and accepts that, notwithstanding any sale of business interest, he/she/ they shall remain liable in full for the settlement of the debt to TPIF and he/she/they undertake to inform TPIF within 7 (seven) days and by registered mail, of any such change.
The Customer has not specifically informed TPIF of any particular purpose for which the Customer wishes to buy/acquire/use the Goods.
The Customer hereby authorises TPIF, the Customer’s other creditors, the Customers bank and auditors and / or credit bureaus to make credit information available to each other, and also authorises and consents to TPIF drawing such credit information from any sources whatsoever regarding the Customer as it deems necessary, including information of the directors, members, partners and/or trustees.
The Customer shall at all times whether during or after termination or expiry of an Order Confirmation or applicable agreement of sale indemnify and keep TPIF indemnified against all losses, claims, damages, liabilities and expenses (including all reasonable legal fees) resulting from any advice given, recommendations made, products sold or used or arising from any cause whatsoever as envisaged in the preceding paragraphs and hereby waives any such claim.
7. Warranties – Indemnities by TPIF
TPIF, its employees and/or agents give no warranties or guarantees, whether express, implied or tacit, to the Customer other than those which TPIF is obliged to give in any applicable law.
TPIF, its employees and/or agents shall not be liable (to the fullest extent permissible by law), whether in contract or delict or otherwise, for any defect in the Goods delivered, for any injury (unless as a result of gross negligence, wilful default or fraud by TPIF or for any damage or loss resulting from such defect or any work done in connection therewith, whether through the negligence (excluding gross negligence) or otherwise of TPIF.
TPIF, its employees and/or agents shall not be liable (to the fullest extent permissible in law) for any loss or damage of whatsoever nature sustained by the Customer or any other person, nor shall TPIF be liable for delictual, special, direct, indirect, general and/or consequential damages, including (but not limited to) loss of profits, business, revenue, goodwill or anticipated savings.
8. Retention of title
Supplied Goods shall remain TPIF’s property until fulfilment by the Customer of its payment obligations as described above.
As such: (a) If Goods are processed combined, and/or mixed by the Customer with other goods belonging to him, then TPIF has the entire ownership on the new goods. If Goods are processed, combined, and/or mixed by the Customer with other goods belonging to other suppliers, then TPIF has a joint ownership right in the whole value of the new goods with such suppliers. In such case, TPIF’s ownership shall be calculated on the basis of the ratio of the invoiced value of the Goods to the invoiced value of all goods, which were used for manufacturing the new goods. (b) As long as the Customer is not in default and provided that it reserves its property rights, the Customer is exclusively entitled to resell Goods in the ordinary course of business. (c) The Customer’s receivables arising out of the resale of Goods are already assigned, for security purposes, exclusively to TPIF. The Customer is entitled to collect the receivables from reselling, unless TPIF withdraws the direct debit authorisation in case of any doubt about the Customer’s solvency and/or financial credibility or if the Customer is in arrears on any of its payments. In the event TPIF withdraws the credit authorisation, the Customer is obliged (i) to inform its clients immediately about the assignment to TPIF and that TPIF is the owner of the Goods, (ii) and to give TPIF all information and documents necessary in order to establish and confirm TPIF’s rights with respect to third parties. The Customer shall be obligated to inform TPIF without delay about any garnishment and/or any other actions adversely affecting the Goods undertaken by third parties. (d) The Customer shall have the sole liability for, and shall bear all risks and costs associated with the unloading, correct handling and suitable storage of Goods and/or the new goods as described above. Moreover, the Customer undertakes (i) to take a general liability all risks insurance policy, at its own cost, including coverage as to the deterioration and/or theft of all or a part of Goods and/or of the new goods and (ii) provide to TPIF, at its first request, a certificate confirming both such insurance coverage and the payment of the insurance TPIF related thereto.
Unless otherwise stated or agreed, the Customer shall be responsible for providing the packaging materials and of the means of protection, fastening and securing used during transport of Goods during and after Delivery. If the Customer fails to comply with this obligation and as a result of said failure TPIF becomes liable for any danger, the Customer shall hold TPIF harmless from liability for any such danger. The Customer will not be able to pass on to TPIF the costs of its destruction, recycling or storage.
The marking, if required, shall be made in accordance with the norms adopted by the TPIF, unless other requirements from the Customer are agreed by TPIF.
10. Force Majeure
TPIF’s manufacture, shipment and delivery of Goods hereunder shall be subject to, and TPIF shall not be liable for, any delay in or impairment or performance resulting in whole or in part from any war (whether or not declared), strike, labour conflict, accident, fire, flood, Acts of God, delay in transportation, shortage of materials, equipment breakdowns, mill conditions, laws, regulations, orders or acts of any governmental agency or body, or any cause beyond the reasonable control of TPIF, or rendering performance by TPIF impracticable due to the occurrence of a contingency the non-occurrence of which was a basic assumption on which this Order Confirmation was issued. In any such event, TPIF shall be entitled to such additional time to perform as may be reasonably necessary and shall have the right to apportion its production among its customers in such manner as it may deem equitable.
This provision shall apply, mutatis mutandis, to the Customer. The occurrence of any such event of force majeure shall be notified in writing to the other party within 3 (three) days of the occurrence of any such event.
11. Legal Proceedings, Jurisdiction and Applicable law
The Customer agrees and accepts that TPIF shall be entitled, in its sole discretion, but not compelled or obliged to institute any legal proceedings, which may arise from or in connection with an Order Confirmation or an applicable agreement of sale, all costs and disbursements incurred by TPIF, including legal costs on an attorney and own client basis in collecting arrears accounts from the Customer, shall be for the account of the Customer.
A certificate issued and signed by any director or manager of TPIF, whose authority need not be proved, in respect of any indebtedness of the Customer to TPIF; or in respect of any other fact including (but not limited to) the fact that the Goods were sold and delivered, shall be prima facie evidence of the Customer’s indebtedness to TPIF.
The Customer’s registered address or physical address stated in an Order Confirmation (or other similar document) shall be recognised as the Customer’s domicilium citandi et executandi for the service of any court documents resulting from an Order Confirmation (or other similar document). The Customer’s physical, email and / or postal addresses as per an Order Confirmation (or other similar document) will be deemed to be the Customer’s service addresses for all other documents resulting from or in terms of an Order Confirmation (or other similar document). It will not be necessary for TPIF to prove that the documents referred to in this clause were received by the Customer. In the event of the Customer not receiving any of the documents, the Customer must timeously acquire a duplicate from TPIF, failing which it will be accepted that said documents were received by the Customer.
With respect to any local or international sales, any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with the laws of Ras Al Khaimah. TPIF and the Customer irrevocably agree that the courts of Ras Al Khaimah shall have exclusive jurisdiction to settle any dispute or claim arising in connection with said sale contract or order. However, TPIF reserves the exclusive right to bring any dispute involving the Customer before the Courts of the Customer’s jurisdiction of incorporation;
Unless otherwise expressly stipulated in writing, no information provided to TPIF in connection with orders shall be regarded as confidential, unless their confidential nature is obvious.
It is hereby stated that personal data in relation to the contractual relationship may be stored by TPIF and may be transferred to companies associated with TPIF in the TPIF Group.