1 DEFINITIONS
1.1 Customer means the party identified as the Customer in this Agreement to whom iMark Distribution may agree to supply Products and Services in accordance with these terms and conditions.
1.2 iMark means iMark Distribution, a company incorporated in the free zone under the Jebel Ali Free Zone of the Emirate of Dubai; with its registered address at P O Box 61500, Dubai, United Arab Emirates.
1.3 Products means goods including but not limited to Audio-Visual hardware and software items to be provided by iMark to the Customer in accordance with these terms and conditions.
1.4 Third Party Software means all software owned by or licensed to the Customer from a third party owner (whether or not supplied by iMark) and which comprises part of the Products.
1.5 Services means services to be provided by iMark to the Customer.
2 ORDER ACCEPTANCE
2.1 All orders placed with iMark by the Customer for Products/Services shall constitute an offer to iMark, under these terms and conditions, subject to availability of the Products/Services.
2.2 All orders are accepted and Products/Services supplied subject to these express terms and conditions only. No amendment of these terms and conditions will be valid unless confirmed in writing by iMark's authorized representative.
2.3 It is agreed that these terms and conditions prevail over the Customer's terms and conditions of purchase unless these terms and conditions are amended by iMark in writing and signed by iMark.
3 INDEPENDENT CONTRACTORS
The relationship between the Supplier and Customer is that of independent contractors. Neither party is the agent of the other and neither party has any authority to make any contract or make any obligation expressly or impliedly in the name of the other party, without that party's prior written consent for express purposes connected with the performance of this Agreement.
4 DISPATCH
4.1 Any time quoted for dispatch is to be treated as an estimate only. Dispatch may be postponed because of conditions beyond iMark's reasonable control, or for any other reason, and in no event shall iMark be liable for any damages or penalty for delay in dispatch or delivery.
4.2 Risk shall pass to the Customer at the time the Products are dispatched by iMark. iMark accepts no liability for loss or damage caused by the carrier.
4.3 If Products have not been received, the Customer must notify iMark in writing within 7 days of the date of the invoice. If proof of dispatch is required, this must be requested within 14 days of the date of the invoice.
5 RESCHEDULING
Subject to clause 8.2 any request by the Customer for rescheduling of deliveries will only be considered by iMark if made at least 24 hours before dispatch of the Products, and shall be subject to acceptance by iMark at iMark's sole discretion.
6 PRICES
6.1 Catalogues, price lists and other advertising literature or material as used by iMark are intended only as an indication as to price and range of goods offered and no prices, descriptions or other particulars contained therein shall be binding on iMark.
6.2 All prices are given by iMark at the time of the order are on an ex-warehouse basis and the Customer is liable to pay for transport, packing and insurance.
6.3 All quoted or listed prices are based on the cost to iMark of supplying the Products / Services to the Customer. If before delivery of the Products / Services there occurs any increase in any way of such costs in respect of Products / Services which have not yet been delivered, the price payable may be subject to amendment without notice at iMark's discretion.
7 PAYMENT TERMS
7.1 Invoices will be raised and dated by iMark on the date of dispatch of the Products or provision of Services. Unless otherwise specifically negotiated and agreed, invoices will be payable by the Customer immediately upon issue of the invoice.
7.2 When all prices due in respect of the Products and any Products supplied previously to the Customer have been paid in full, title to hardware Products only shall pass to the Customer.
7.3 Notwithstanding dispatch and the passing of risk in the Products to the Customer pursuant to Clause 4, or any other provision of these conditions, the property in the hardware Products shall not pass to the Customer until iMark has received in cash or cleared funds payment of the price of the Products and all other Products sold or agreed to be Sold by iMark to the Customer for which payment is then due.
7.4 Until such time as the property in the Products passes to the Customer, the Customer shall hold the Products on behalf of iMark as iMark's agent, and shall keep the Products properly stored, protected and insured and identified as iMark's property. Until that time the Customer shall be entitled to resell or use the Products in the ordinary course of its business, but shall account to iMark for the proceeds of sale or otherwise of the Products, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.5 Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and have not been resold), iMark shall he entitled at any time to require the Customer to deliver the Products to iMark and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.
7.6 The Customer's power of sale or right to use such Products shall immediately cease if any security held by any third party is enforced over all or any part of its assets or if it is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts.
7.7 On termination of the Customer's power of sale or right to use the Products the Customer will immediately hold the Products to the order of iMark.
7.8 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of iMark, but if the Customer does so, all moneys owing by the Customer to iMark shall (without prejudice to any other right or remedy of iMark as the seller) forthwith become due and payable.
7.9 Invoicing will ordinarily be denominated in United States Dollars (USD). Where an invoice is denominated in any currency other than USD, the Customer is liable to settle the invoice in equivalent USD calculated at the rate of exchange prevailing on the date of the invoice regardless of subsequent movements in foreign exchange rates.
7.10 iMark reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, iMark reserves the right to withdraw any credit facility such that the whole of the Customer's account becomes due for payment forthwith.
8 SPECIFICATIONS OF PRODUCTS
8.1 iMark will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturer's specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. iMark will use its reasonable endeavors to advise the Customer of any such impending variation as soon as it receives any notice thereof from the manufacturer.
8.2 Unless otherwise agreed, the Products are supplied in accordance with the manufacturer's standard specifications as these may be improved, submitted or modified, iMark reserves the right to increase its quoted or listed price, or to charge accordingly in respect of any orders accepted for Products on non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of the Products.
9 PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS
9.1 The Customer hereby acknowledges that any proprietary rights in any Third Party Software supplied including but not limited to any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in the Third Party Software owner.
9.2 The Customer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of the license attaching to Third Party Software supplied and delivered by iMark (including if so required the execution and return of a Third Party Software licence). The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a Third Party Software or having the same revoked by the proprietary owner. The Customer further agrees to indemnify iMark in respect of any costs, charges or expenses incurred by iMark in any claim or legal action of a Third Party Software owner as a result of any breach by the Customer of such conditions.
9.3 No title to or ownership of software products or any third party software licensed to the customer under this agreement is transferred to the customer under any circumstances.
10 RETURNS
10.1 iMark reserves the right to levy an administration charge in respect of the rotation of Products and returns.
10.2 Returns are subject to the following:-
(a) prior authority having been obtained from iMark which will be given at iMark 's sole discretion;
(b) within 30 days of the date of the invoice,
(c) subject to stock rotation Policy,
(d) the Products must be properly packed,
(e) the Products must be in a saleable condition,
(f) the Products must be accompanied by a detailed packing list,
(g) the Products must be covered by warranty (see Clause 11 ).
10.3 If iMark nevertheless agrees to accept any Products returned in a non-saleable condition, iMark reserves the right to charge the cost to the Customer of bringing the Products to a saleable condition.
11 WARRANTY
11.1 iMark warrants that it has good title to or license to supply all Products to the Customer.
11.2 If any part of the hardware Products should prove defective in materials or workmanship under normal operation of service, such Products will be repaired or replaced only in accordance with any warranty cover and terms provided by the manufacturer of the Products PROVIDED THAT no unauthorized modifications to the Product or to the system of which the Product forms part have taken place. iMark is not responsible for the cost of labor or other expenses incurred in repairing or replacing defective or non-conforming parts.
11.3 All software Products supplied are supplied "as is" and the sole obligation of iMark with regard to the supply of software Products is to use all reasonable endeavors to obtain and supply a corrected version from the manufacturer concerned in the event that any such software Products should fail to conform to its Product description PROVIDED ALWAYS THAT the Customer notifies iMark of any such non-conformity within 90 days of the date of delivery of the applicable software Product.
11.4 If the Products are rejected by the Customer as not being in accordance with the Customer's order pursuant to clause 11.2 or 11.3, iMark will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. iMark will not consider any claim for compensation, indemnity or refund until liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the value of Products be deducted or set off by the Customer until iMark has passed a corresponding credit note.
11.5 iMark warrants that Services shall be performed with reasonable skill and care and in a good and workmanlike manner.
11.6 Except as specifically set out in this clause 11, iMark disclaims and excludes all other warranties, whether express or implied by statute or otherwise, including but not limited to the warranties of description, design, merchantability and fitness for a particular purpose, or arising from any previous course of dealing, custom or trade practice.
12 INDEMNITIES AND LIMITS OF LIABILITY
12.2 Except as stated in clause 12.1 above, iMark disclaims and excludes all liability to the Customer in connection with these terms and conditions including the Customer's use of the Products and in no event shall iMark be liable to the Customer for special, indirect or consequential damage including but not limited to loss of profits or arising from loss of data or in connection with the use of the Products or provision of Services. All terms of any nature, express or implied, statutory or otherwise, as to correspondence with any particular description or sample, fitness for purpose or merchantability, are hereby excluded.
12.3 The Customer shall indemnify and defend iMark and its employees in respect of any claims by third parties which are occasioned by or arise from any performance or non-performance by iMark pursuant to the instructions of the Customer or its authorized representative.
13 TERMINATION FOR CAUSE
This Agreement may be terminated forthwith by notice in writing:
13.1 By iMark if the Customer fails to pay any sums due to iMark by the due date notwithstanding the provisions for late payment in clause 7.1.
13.2 If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party.
13.3 If either party is involved in any legal proceedings concerning solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or any security is enforced by any Third Party appointed over all or any part of its assets or generally becomes unable to pay its debts, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this Agreement forthwith.
13.4 Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party.
14 CONTRACT
14.1 The headings in this Agreement are for ease of reference only and shall not affect its interpretation or construction.
14.2 No forbearance, delay, or indulgence by iMark in enforcing its rights shall prejudice or restrict those rights, and no waiver of any such rights or of any breach by the Customer of any contractual terms shall be deemed to be a waiver of any other right or a condoning of any such breach.
14.3 The Customer agrees not to assign any of its rights herein without the prior written consent of iMark.
14.4 In the event of any of these terms and conditions or any part of any of them being judged un-enforceable for any reason, the continuation in full force and effect of the remainder of them shall not be prejudiced.
14.5 Neither party shall be liable to the other for any delay in or failure to perform its obligations (other than a payment of money) where such delay or failure results from force majeure, act of God, fire, explosion, accident, industrial dispute or any other cause beyond its reasonable control.
14.6 Any documents or notices given under these terms and conditions by either party to the other must be in writing and may be delivered personally or by recognized courier service and in case of courier service will be deemed to have been given 2 working days after the date of dispatch. Documents or notices shall he delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.
14.7 These terms and conditions shall be governed and construed in accordance with the laws of the United Arab Emirates as applied in the Emirate of Dubai. |
