1. DEFINITIONS

In these terms and conditions of sale, “the Contract” means any purchase order acknowledgement, invoice or other contract in which these terms and conditions of sale are incorporated or referenced, “the Company” means the company whose name appears as the seller/ vendor or similar description in the Contract, “the Buyer” means the person, firm or company identified as the purchaser of the Goods in the Contract, and “the Goods” means the goods and/or services to be purchased by the Buyer under the Contract. All headings are included for reference purposes only.

 

2. BASIS OF THE SALE

2.1 The Company shall sell and the Buyer shall purchase the Goods in accordance with any written quotation or price list of the Company which is accepted by the Buyer, or any written order (including delivery schedules) of the Buyer which is accepted in writing by the Company (which in either case shall be deemed a Contract), subject in either case solely to these terms & conditions. These terms and conditions shall apply to the exclusion of any other terms and conditions howsoever referenced by the Buyer and acceptance of any order by the Company is conditional on the Buyer’s acceptance of the terms and conditions herein.

2.2 No variation, alteration or modification to these terms and conditions shall be binding unless agreed to in writing by a duly authorised representative of the Company.

2.3 The Buyer acknowledges that the sale of Goods under the Contract was not entered into in reliance on any representations made by any employee or agent of the Company or appearing in any sales literature or related data unless specifically incorporated into the Contract.

2.4 The Contract and these terms and conditions shall not create or give rise to nor shall it be intended to create or give rise to any third party rights except to the extent expressly stated herein or therein.  The application of any legislation giving to or conferring on third parties contractual or other rights in connection with the Contract shall be excluded.

 

3. ORDERS AND SPECIFICATIONS

3.1 All orders submitted by the Buyer shall be deemed to constitute an offer.  No order for the Goods submitted by the Buyer shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company.

3.2 The quality, quantity, scope, description of and any specification for the Goods shall be solely as set out in the Company’s quotation, or Buyer’s order and delivery schedules if and when they have been accepted by the Company in writing.

3.3 The Company reserves the right at any time to make any changes in the specification or design of the Goods where either such changes are required to ensure that the Goods conform with any applicable safety or other statutory requirements or where such changes do not materially affect their quality or performance negatively. Delivery of Goods conforming to such altered specification or design shall constitute proper performance of the Contract by the Company.

3.4 Where the Buyer has provided the sample, specification or design for the Goods the Buyer is solely responsible for its accuracy, performance and completeness.

3.5 No order which has been accepted by the Company may be cancelled in whole or in part by the Buyer except with the prior written agreement of the Company. Such agreement will only be given on terms which compensate the Company in full for all losses and expenses howsoever resulting from the cancellation.

3.6 The sale of the Goods by the Company does not confer any right or license upon the Buyer to use or exploit in any way intellectual property rights subsisting in or relating to the Goods or which the Company is the proprietor or to which the Company is otherwise entitled.

3.7 The Company may at any time, without notice, make changes (whether in design, materials, the addition of improvements, or otherwise) in any Goods, and may discontinue the manufacture of any product, all in its sole discretion, without incurring any obligations of any kind as a result thereof, whether for failure to fill an order by the Company or otherwise.

 

4. PRICES

4.1 The price of the Goods shall be the Company’s quoted price or, where no price has been quoted, (or a quoted price is no longer valid) the price listed in the Company’s published price list current at the date of acceptance of the order.  Unless otherwise stated all quoted prices are valid for 30 days only.

4.2 Except as otherwise agreed in writing between the Company and the Buyer, all prices are given by the Company on an ex works (EXW) basis and will exclude all duties, taxes and customs fees. Where the Company agrees to deliver the Goods elsewhere, the Company shall add charges for the costs of transport, packaging, insurance and customs fees, duties and taxes. The company does not normally arrange insurance for the shipments. 

4.3 All prices are exclusive of any value added tax payable which will be added where appropriate to all invoices at the then current rate.

4.4 The Company reserves the right by giving written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the Company’s control, any change in delivery dates, quantities or specification which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instruction.

 

5. PAYMENT

5.1 Except as otherwise agreed in writing between the Company and the Buyer, the Company may invoice the Buyer for the price of the Goods just before, on or at any time after delivery. 

5.2 Except as otherwise agreed in writing between the Company and the Buyer, the Buyer shall pay the price of the Goods in US Dollars within 7 days of the date of the Company’s invoice, notwithstanding that delivery may not have taken place and title in the Goods has not passed to the Buyer. Time for payment of the invoice shall be of the essence. The Buyer shall also be responsible for all costs associated with making such payment to the Company.

5.3 The Company’s prices do not include any sales, excise or other taxes which the Company may be required to pay in connection with filling any of the Buyer’s orders.  The amount of any applicable present or future tax shall be paid by the Buyer as an additional charge or, in lieu thereof, the Buyer shall provide the Company with a tax exemption certificate acceptable to the taxing authorities.

5.4 Payment of all amounts invoiced must be made by the Buyer in full and without deduction or setoff. Any bank or other charges or money changer charges are payable by the Buyer.

5.5 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:

5.5.1 Cancel the Contract and / or suspend any further deliveries to the Buyer, at its sole discretion

5.5.2 Sell any goods from the buyers orders in the market irrespective of any exclusivity agreement

 

6. DELIVERY

6.1 All delivery terms are to be interpreted by reference to the then current edition of INCOTERMS. Delivery of the Goods shall be made either (a) by the Buyer collecting the Goods at the Company’s premises at any time after the Company has notified the Buyer that the Goods are ready for collection or (b) if some other place for delivery is agreed in writing by the Company, by the Company delivering or causing to be delivered the Goods to that place. Where the Goods are to be delivered to the Buyer's facility or nominated site, the Buyer shall be responsible for all unloading activities and the costs thereof. The Company reserves the right in all such cases to deliver the Goods to the nearest point of suitable access.

6.2 Any dates quoted for delivery of the Goods are approximate only. An order once accepted by the company will be dispatched within 4 months, under normal conditions, if not ex stock for regular items. For non-regular items and new developments in the order, the delivery may take longer. An estimated delivery schedule will be provided for non-regular items and new developments at the time of accepting the order which may be then subsequently confirmed or modified. The Company shall not be liable for any delay in delivery of the Goods or failure to deliver howsoever caused.  In case of delay in delivery of more than one month from the latest agreed delivery date, the Buyer and company can mutually agree to reschedule the deliveries if required. 

6.3 The Company may, at its option, condition shipment under any order accepted by the Company upon receipt of satisfactory security or of cash before shipment.  

6.4 If, at the Buyer’s request, shipment of Products on an order accepted by the Company is delayed beyond the date the Products are ready for shipment, the Company may require immediate payment in full and/ or assess additional charges for storage and other expenses incident to such delay.

6.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract. A failure by the Company to deliver any one or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as repudiated.

6.6 If the Buyer fails for whatever reason to take delivery of all or any of the Goods by the date stipulated by the Company or otherwise agreed in the Contract, then without prejudice to any other right or remedy available to the Company including the right to enforce payment under Clause 5.2, the Company may at its sole discretion:

6.6.1 Store the Goods at the Buyer’s cost and risk until actual delivery or 30 days (whichever shorter) and charge the Buyer for the reasonable storage costs (including transport, handling and insurance); and/or 

6.6.2 Sell the Goods elsewhere after notifying the Buyer in writing of its intention to do so and claim the greater of the difference between the selling price of the Goods and the invoice price.

 

7. RISK AND TITLE

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery.

7.2 Notwithstanding delivery and the passing of risk in the Goods, title in and to the Goods shall not pass to the Buyer until the Company has received in cash or cleared funds payment in full of the price of not only the Goods but all other goods or services agreed to be sold by the Company or any other legal entity within the Company’s Group of companies to the Buyer for which payment is then due. Notwithstanding any passing of title in the particular Goods, this shall not serve to transfer to the Buyer or any user of the Goods any intellectual property rights in such items, which rights shall remain solely vested in the Company and its suppliers.

7.3 Until such time as title in the Goods passes to the Buyer, following delivery of the Goods to the Buyer, the Buyer shall hold the Goods as the Company’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties or in some other way ensure that they are readily identifiable as the property of the Company, and properly stored, protected and insured as the Company’s property. The Buyer shall keep the delivered goods free from any charge lien or other encumbrance thereon.

Prior to the title passing the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business. It shall account to the Company for the proceeds of sale or otherwise of the Goods (whether tangible or intangible including insurance proceeds) and shall keep all such proceeds separate from any other monies or property.

7.4 In the event the Buyer has failed to make payment in full for the Goods when due, until such time as title in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Buyer to hand over the Goods to the Company at the Buyer’s expense.   If the Buyer fails to do so, the Company may forthwith without any restrictions enter any premises of the Buyer or any third party where the Goods are stored and repossess the Goods without any liability thereby arising.

 

8. WARRANTIES AND LIABILITY

8.1 The Goods are warranted as provided in the Company's Warranty Policy in effect on the date of shipment of the Goods (which terms are deemed to be incorporated herein) and will be administered in accordance with the Company's standard warranty administration processes and procedures in effect from time to time.  In the event of any conflict as between these terms and conditions and the terms of the Company's then current Warranty Policy, the later shall prevail.  All warranty service work and/or repairs on any Goods must be performed by a Company authorized service agent or representative. Recommendations by the Company concerning the use, utilization, installation, application or properties of the Goods, are believed reliable, but the Company makes no warranty whatever with respect thereto.  Any use or application of any recommendations or design or engineering services provided by the Company is at the discretion of the Buyer, and the Company shall incur no liability or any obligations as a result of such use or application.

8.2 Subject as expressly provided in this clause, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.3 Subject to paragraph 8.1, (a) the Company shall not be liable to the Buyer for any special, indirect or consequential loss, damage, expense or cost, or any loss of profits, contracts or production howsoever arising out of or in connection with the supply of the Goods or their use or resale by the Buyer, and (b) the Company's maximum liability howsoever arising out of or in relation to the Contract shall be limited to the invoiced value of the Goods concerned.

8.4 The Buyer will carry out all certification activities relating to products into which the Goods are incorporated and will ensure that the Goods comply with legislation in force in territories where they are to be sold or used. The Buyer shall indemnify the Company against all liability, loss, damages, costs and expenses howsoever arising from any breach of this obligation.

 

9. FORCE MAJEURE

The Company shall not be liable to the Buyer or be deemed to be in breach by reason of any delay in performing or any failure to perform any obligation in relation to the Goods if the delay or failure is due to any cause beyond the Company’s reasonable control.

 

10. INSOLVENCY OF BUYER

10.1 The Company shall be entitled either to cancel the Contract in whole or in part or to suspend any further deliveries of Goods or performance of services under such Contract without any liability to the Buyer forthwith by written notice if (a) the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or becomes bankrupt or goes into liquidation, or a receiver is appointed over any of the property or assets of the Buyer; or (b) the Buyer ceases or threatens to cease to carry on business or is unable in the Company's reasonable opinion to meet its debts as they fall due; or (c) the Company has reasonable grounds for believing that any of these events is about to occur in relation to the Buyer.

The above rights shall be in addition to any other rights of the Company in such circumstances.

10.2 If any Goods have been delivered or services performed but not paid for, then the price shall become immediately due and payable notwithstanding any previous arrangement to the contrary.

 

11. GENERAL

11.1 Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to the other Party at its registered office or such other address as may have been notified in writing.

11.2 The Buyer shall take all necessary steps to protect the Company’s Confidential Information with at least the same degree of care that the Buyer uses to protect its own confidential and proprietary information of like kind, but in no event less than reasonable care.  Confidential Information means all information relating to the Company’s products or operations that is disclosed to the Buyer or created during the performance of the Contract.  Confidential Information includes all business or technical information that is disclosed to the Buyer including Pricing, Specifications, Strategies, Development Programs, etc., directly or indirectly, in writing, orally or visually, but does not include information that (a) was already in the Buyer’s possession before its receipt from the Company without restriction on its use or disclosure; (b) is or becomes available to the general public through no act or fault of the Buyer; or (c) is rightfully disclosed to the Buyer by a third party without restriction on its use or disclosure.

11.3 No waiver by the Company of any breach of these conditions by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

11.4 No waiver by the Company of any breach, default or omission by the Buyer in the performance or observance of any of its obligations hereunder shall be valid unless agreed by the Company in signed writing and no such waiver shall apply to or be deemed a waiver of any other breach, default or omission hereunder.

11.5 No variation of these terms and conditions will be binding unless expressly accepted by the Company in writing.  All other terms and conditions are hereby expressly excluded.

11.6 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions shall not be affected.

11.7 The Contract and all matters related to it shall be governed by the laws of U.A.E. and all disputes and related matters shall be subject to the exclusive jurisdiction of the Dubai International Arbitration Centre.

11.8 The Company may at its option assign or subcontract the whole or any part of the Contract to any third party.