Sales Terms & Conditions
The present Terms & Conditions (“T&C”) shall govern the sale of Products and/or Services by McKinsey Electronics, and its affiliates and subsidiaries.
The Buyer that enters into these T&C hereby confirms having read their content and approves being aware of their conditions.
Moreover, Buyer agrees to any future possible amendments deemed necessary by Seller related to the T&C without any reserve.
Sale of any product or services is expressly conditioned on Buyer’s assent to these T&C. Any acceptance of Seller’s offer is expressly limited to acceptance of these T&C and Seller expressly objects to any additional or different terms proposed by Buyer.
These T&C constitute the entire agreement between Buyer and Seller relating to the subject matter hereof, and supersede all prior, contemporaneous discussions, understandings and agreements relating to the subject matter hereof.
If any provisions of these T&C are found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these T&C, which shall remain in full force and effect.
Seller means “McKinsey Electronics” or any of its affiliates and/or subsidiaries.
Buyer means the person or entity to which Seller is providing products and/or services under the Contract.
Contract means either the agreements signed by and between Seller and Buyer or the Purchase Order signed by Buyer and accepted by Seller in writing for the sale of products or services, together with these T&C.
Parties means Buyer and Seller together.
Party means each of Buyer or Seller as the case may be.
Purchase Order means the purchase order between Buyer and Seller for the purchase of Products and/or Services, subject to the present T&C.
Products means the products that are required to be delivered by Seller under a Contract and/or Purchase Order, which include all materials, parts, components, parts, supplies, packaging and labeling or such Products.
Services means any services to be provided by Seller to Buyer under a Contract and/or Purchase Order.
Delivery Date(s) means the date(s) of delivery of the Products and/or Services as specified in the Contract and/or Purchase Order.
Delivery Point means the location specified in a Contract and/or Purchase Order to which Seller is to deliver Products and/or perform the Services.
Intellectual Property Rights means all intellectual and industrial property rights and rights of a similar nature including all rights in and to patents including all issued patents and pending application therefore and patents which may be issued therefrom, trademarks, copy rights, industrial design rights, rights pertaining to trade secrets and confidential information, publicity rights, personality rights, moral right and other IP rights whether registered or not and all application, registrations, renewals and extensions pertaining to the foregoing.
Warranty Period means the warranty period defined by Seller in respect of any Product and/or Service.
The above Preamble and Definitions form an integral part of the present T&C and are complementary to them.
4. Purchase Orders
All Purchase Orders to be placed by Buyer must include details of the requested Products and/or Services, Delivery Dates, quantities, complete description of the Products and/or Services.
All Purchase Orders should be accepted by Seller within a maximum period of Seven (7) business days. Failure of which, the relevant order is considered as rejected by Seller. Seller shall return a copy of the Purchase Order to the Buyer by email as Purchase Order acceptance/acknowledgement.
Modifications hereof, or additions thereto, to be effective must be made in writing and signed by a duly authorized procurement representative of the Buyer and accepted by Seller.
5. Cancellation of Purchase Orders
Further to the acceptance of Seller, any orders subject of Purchase Orders may not be cancelled or re-scheduled without the written consent of Seller.
In all cases, all cancellations made by the Buyer will be subject to payment to the Seller of reasonable and proper cancellation charges.
Seller may designate certain Products as non-cancellable, non-returnable, or customer-specific, for reasons of obsolescence and/or non-standard character and/or otherwise.
This should depend upon your understanding with your suppliers.
6. Prices and Payment Terms
(a) Buyer shall purchase the Products and, if applicable, shall pay for the Services provided, from Seller according to the prices detailed in Seller’s invoice.
Prices for undelivered Products and/or Services may change at any time, including without limitation, in the event of any increase in Seller’s cost, change in market conditions or any other causes beyond Seller’s reasonable control.
In such case, Seller shall notify of such changes in the Price of Products and/or Services.
(b) All prices of Products and/or Services are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
(c) The Contract Price excludes shipping and handling charges, which are the obligation of Buyer and will be added to the invoice if prepaid by Seller.
Please inform us if you intend to grant Buyer an option to cancel the order in case of price increase.
In the affirmative, a paragraph should be added in this respect.
6.2 Payment Terms
Full payment of each invoice should be made on the date specified in such invoice, which should be delivered to Buyer along with the Purchase Order approval/acknowledgement.
Buyer shall pay interest on all late payments at the rate of 1.5% per month or at the rate permissible under applicable law, whichever is highest, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. In addition to all other remedies available under these T&C or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products and/or Services if Buyer fails to pay any amounts when due hereunder and such failure continues for Thirty (30) days following written notice thereof.
Buyer is not entitled and shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
If Buyer disputes any invoice or portion thereof, it shall notify Seller in writing within Five (5) business days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.
7. Delivery of Products and/or Services
Supplier agrees to supply and deliver the Products and/or to perform the Services, as applicable, on the terms set out in the Contract and/or Purchase Order.
Supplier shall pack, load and deliver Products to the Delivery Point and in accordance with the invoicing, delivery terms, shipping, packing and other instructions printed on the Purchase Order or otherwise provided to Seller by Buyer in writing. No charges will be allowed before the Products get to the Delivery Point, for freight, transportation, insurance, shipping, storage, handling, demurrage, cartage, packaging or similar charges unless provided for in the applicable Purchase Order or otherwise agreed to in writing by Buyer.
Subject to Seller’s right of stoppage in transit, delivery of the Products to the Delivery Point shall constitute delivery to Buyer.
Title or risk of loss or damage shall pass to Buyer upon receipt of Products at the Delivery Point, unless otherwise agreed to by Buyer in writing. Buyer has no obligation to obtain insurance while Products are in transit from Seller to the Delivery Point.
Buyer acknowledges that Delivery Date(s) provided by Seller is an estimate only and Seller shall not be liable for delivery delays or for failure to perform due to causes beyond the reasonable control of Seller. In the event of delay caused by such event, the Delivery Date(s) shall be extended for a period equal to the time lost as a consequence of the delays in delivery without subjecting Seller to any liability or penalty.
8. Right of Inspection
Products shall be deemed to have been accepted by Buyer upon delivery of said Products to the Delivery Point unless rejected upon receipt according to the following:
Buyer shall perform whatever inspections or tests Buyer deems necessary, as promptly as possible but in no event later than Five (5) business days after delivery, after which time Buyer will be deemed to have irrevocably accepted the Products.
Products can be returned only if found damaged or defective or if not in conformance with the specifications set out in the Contract and/or the Purchase Order.
Any discrepancy in the Products quantity must be reported to the Seller within Five (5) working days of receipt of such Products. In the event of an over-shipment, Buyer shall have the option either to return the Products at Seller’s expense or Buyer may elect to retain the Products (subject to the adjustment of the invoice or the issuance of another invoice to account for such additional items).
Seller will transfer to Buyer any transferrable warranties or indemnities that the manufacturer of the Products or the third-party vendor, if any, provides to Seller.
Seller shall have no liability towards Buyer beyond the express terms of such manufacturer Product warranties.
It is Buyer’s obligation to request copies of any applicable manufacturer warranties and Buyer shall be deemed to have accepted such warranties upon acceptance of the Products and/or Services.
Seller’s exclusive obligation with respect to a non-conforming Product and/or Service shall be at Seller’s option to repair or replace the Product and/or to reperform the Service. If it is determined to be defective, or to reperform the Service or to refund to Buyer the purchase price paid for the Product and/or Service.
In all cases, the liability of the Seller under this Section for all claims shall not exceed the sum of the Buyer’s payment for the Products and/or Services which are the subject of the dispute.
The foregoing warranties are the sole warranties express or implied given by Seller in connection with the Products and/or Services, and Seller disclaims all other warranties, including but not limited to warranties of merchantability, fitness for a particular purpose.
Replacement Products shall be warranted as set-forth in this Section 9.
Any Products repaired or serviced by Seller shall be warranted as provided in this Section 9 for the remainder of the manufacturer’s warranty period.
No warranty shall apply to any Product that has been subject to misuse, improper testing, assembly, mishandling or which has been operated contrary to current instructions relating to installation, maintenance or operation or contrary to industry standards.
Seller disclaims and shall have no liability for any trademark, trade secret, copyright, design, or patent infringement or any other IP right which may occur as a result of the sale of Products to Buyer.
The only remedy or recourse for trademark, trade secret, copyright, design or patent explicitly subject to the limited warranty of the manufacturer of the Product. There shall be no remedy or recourse against Seller or the manufacturer to the extent the infringement arises from or is otherwise based upon (i) the manufacturer’s compliance with the particular requirements of Buyer that differ from the manufacturer’s standard specifications of the Products, (ii) modification or alterations of the Products other than by the manufacturer or (iii) a combination of the product with other items not furnished or manufactured by the manufacturer.
Buyer shall not, in any event, be entitled to, and Seller shall not be liable for, indirect, incidental or consequential damages of any nature including, without limitation, business interruption costs, removal and/or reinstallation costs, re-procurement costs, loss of profit or revenue, loss of data, promotional or manufacturing expenses, overhead, injury to reputation loss OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER'S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED BUYER'S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER'S COMPLIANCE WITH BUYER'S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE STATE OR PROVINCIAL LAW, BUYER AGREES THAT SELLER’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.
Buyer acknowledges that this Agreement was entered into at arm’s length and that it was not fraudulently induced to enter into this Agreement, in whole or any part, and Buyer explicitly disclaims and waives any claim with respect thereto.
10. Intellectual Property
Buyer acknowledges and understands that Seller is not the manufacturer of any of the Products which are to be supplied to Buyer, and that Seller is unable to guarantee that no patent rights, copyrights, trademarks, trade models or any rights of third-parties are infringed by the Products received via Seller or third-parties via them, including but not limited to products, models and drawings for the manufacture of the Products.
If any Product includes software or other intellectual property, such software or other intellectual property is provided by Seller to Buyer subject to the copyright and other license, if any, for such Products, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property.
Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license.
11. Compliance with Laws
Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that Products may be used in various jurisdictions for various applications subject to disparate regulations and therefore that Seller cannot warrant compliance with all applicable laws and regulations. Seller disclaims any representations or warranty that the Products conform to federal, state or local laws, regulations, ordinances, codes or standards, except as expressly set forth by Seller in writing. Buyer shall comply with all applicable laws, regulations and ordinances.
Seller shall have the right to refrain from delivering any Products if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
Buyer acknowledges that the Products may be subject to the Export Administration Laws and Regulations of the United States. Buyer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Products sold by Seller cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. Buyer agrees to indemnify and hold Seller harmless from any and all costs, liabilities, penalties, sanctions and fines related to non-compliance with applicable export laws and regulations.
Buyer represents and warrants that it is not subject to any trade sanctions imposed by the U.S., EU and/or UN and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including trade sanctions imposed by the U.S, EU and/or UN) with respect to Products sold hereunder, and shall provide evidence of compliance with the foregoing as Seller may reasonably request from time to time.
Buyer represents and warrants that it is in compliance 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. Buyer is not on, nor is Buyer associated with any organization that is on, any list of entities maintained by the United States government that identifies parties to which the sale of goods or services is restricted or prohibited.
Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer's sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
12. Suspension of Orders
Seller shall have the right to suspend and/or refuse delivery of any Products and/or Services if the Buyer does not comply with these T&C, or in the event Buyer fails to perform any obligations under the Contract and/or the Purchase Order, up and until the cause of suspension is lifted by Buyer.
Such suspension and/or refusal of delivery shall be with no indemnification whatsoever to Buyer.
Moreover, acceptance by Seller of a Purchase Order shall not be deemed as an acceptance of failure by Buyer to abide by these T&Cs.
13. Amendment and Modifications
Seller shall have the right at any time to amend these T&C by posting them on Seller’s Website.
14. Confidential Information
All non-public, confidential, proprietary information of either Seller or Buyer, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, rebates, disclosed by either Party to the other, whether disclosed or accessed in writing, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Contract is confidential, solely for the use of performing this Contract and/or Purchase Order, and may not be disclosed or copied for any reason whatsoever.
Seller or Buyer, as the case may be, shall be entitled to injunctive relief for any violation thereof.
This Clause 14 does not apply to information that is: (a) in the public domain, (b) known to either Party at the time of disclosure; or (c) rightfully obtained by either Party on a non-confidential basis from a third party.
15. Limitation Period
Subject to aby of the limitations expressed in the applicable manufacturer’s warranty, no action by Buyer may be brought at any time for any reason against Seller or the manufacturer more than Three (3) months after the facts occurred upon which the cause of action arose.
16. Force Majeure
Seller shall not be liable or responsible for Buyer, nor be deemed to have defaulted or breached a Contract and/or a Purchase Order for any failure or delay in fulfilling or performing any term of a Contract and/or a Purchase Order, when and to the extent such failure or delay is caused by or results from any acts of God, flood, fire, earthquake, explosion, governmental actions, pandemics and epidemics, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riots, or other civil unrest, national emergency, revolution, insurrection, lockouts, strikes, or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
17. Governing Law
These T&C are subject to the applicable laws of the United Arab Emirates.
Any disputes arising out the validity, execution and/or interpretation of these T&C shall be finally settled by the competent courts in the United Arab Emirates.
In this respect, we have taken into consideration that Seller is based on the UAE (i.e McKinsey Electronics Limited -RAK-), whereas the location of Buyer cannot be determined ahead of time.
Please propose any other location, according to the type of business, if any.