Notus Composites FZC
Terms and Conditions of Sale
1. General
1.1 Definitions
For the purposes of these Terms and Conditions of Sale (“Conditions”) the following definitions apply:
"Business Day" means a day (other than a Friday, Saturday or public holiday) when banks in the United Arab Emirates are open for business.
“Buyer” means the person, firm or company which purchases the Products from the Supplier.
“Conditions” means the terms and conditions of sale set out in this document as amended from time to time by the Supplier.
“Contract” means the contract between the Supplier and the Buyer for the sale and purchase of the Products in accordance with these Conditions.
"Force Majeure Event" means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
"Order" means the Buyer's order for the Products, as set out in the Buyer's purchase order form OR written acceptance of the Supplier's quotation
“Products” means the Products (or any part of them) set out in the Order.
"Specification" means any specification for the Products, including any related plans and drawings, that is agreed (in writing) by the Buyer and the Supplier.
“Supplier” means Notus Composites FZC.
1.2 Construction
In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(d) A reference to writing or written includes faxes (and e-mails).
2. Basis of Contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase the Products in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification (submitted by the Buyer) are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force.
2.7 THESE CONDITIONS SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS WHICH APPEAR IN THE BUYER’S ORDER OR IN ANY DOCUMENTS INCORPORATED BY REFERENCE IN THE BUYER’S ORDER. No term or condition of the Buyer’s order additional to or different from these Conditions shall become part of any Contract unless explicitly agreed to in writing by the Supplier. Retention by the Buyer of any Products delivered by the Supplier or payment by the Buyer of any invoice rendered hereunder shall be conclusively deemed acceptance of these Conditions. The Supplier’s failure to object to any provision contained in any communication from the Buyer shall not be construed as a waiver of these Conditions nor as an acceptance of any such provision.
3. Quotations
Prices, specifications and delivery date referenced in the Supplier's quotations are for information only and shall not be binding on the Supplier until all specifications and delivery requirements have been agreed and the Supplier has accepted the Buyer's order. A quotation shall only be valid for a period of 14 Business Days from its date of issue.
4. Orders
By submitting an Order to the Supplier, the Buyer agrees to be subject to these Conditions in their entirety. All Orders must be bona fide commitments showing definite prices and quantities and mutually agreed delivery dates. No Order, whether or not submitted in response to a quotation by the Supplier, shall be binding upon the Supplier until accepted in writing by the Supplier.
5. Prices and Taxes
The prices for Products shall be the price quoted in UAE Dirham in the Order, or, by the Supplier to the Buyer, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery, or, as may be otherwise agreed between the parties in writing. Prices and fees do not include, taxes, transport charges, insurance and export and/or import charges or duties including without limitation any taxes that may become levied in the UAE, applicable to the Products sold or supplied under any Contract, which taxes and other charges may, in the Supplier’s discretion, be added by the Supplier to the sale price and or fees or billed separately and which taxes and other charges shall be paid by the Buyer unless the Buyer provides the Supplier with any necessary tax exemption certificate. Unless otherwise agreed in writing, the Buyer shall be liable to pay the Supplier’s charges for transport, packaging, insurance and export and/or import clearance. Supplier reserves the right to alter quoted prices at any time without notice in the event of any variation of costs incurred by Supplier after acceptance of Buyer’s order.
6. Shipment and Delivery
6.1 The Supplier shall deliver or arrange for delivery of Products on the basis of EX WORKS (as defined in INCOTERMS 2010) from the warehouse located in the Ras Al Khaimah (RAK) Free Trade Zone Technology Park, or such other delivery point as agreed in writing between the parties.
6.2 Any dates quoted by the Supplier for delivery of Products are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of Products howsoever caused including but not limited to a delay that is caused by a Force Majeure Event or the Buyer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
6.3 The Supplier reserves the right to make delivery of Products by installments and to tender a separate invoice in respect of each installment. When delivery is to be by installments or the Supplier exercises its right to deliver by installments or if there is delay or defect in the delivery of any one or more installments for whatever reason the Buyer shall not be entitled to treat the Contract as a whole as repudiated.
6.4 If the Supplier fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7. Risk and Passing of Title
Title to, and risk of loss and damage to, the Products shall pass to the Buyer on delivery in accordance with Clause 6. Any claims for loss, damage or mis-delivery shall be filed with the carrier and notified to Supplier within 24 hours of the date of delivery. Products shall be deemed finally inspected and accepted within ten days after delivery unless notice of rejection is given to the Supplier within such period. Acceptance shall constitute acknowledgement of full performance by the Supplier of all obligations under the Contract except as stated in Section 10.
8. Terms of Payment
8.1 Standard terms of payment (unless agreed in writing with the Supplier) shall be 30% advance payment with order confirmation and the balance 70% before delivery. Time of payment is of the essence.
8.2 All amounts due under a Contract shall be paid in full by the Buyer without deduction, withholding, set-off or counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, save as may be required by law.
8.3 If the Buyer fails to make any payment when due then, without prejudice to any other rights and remedies available to the Supplier, the Supplier shall (at its option) be entitled:
(i) to treat the Contract as repudiated by the Buyer and to suspend or cancel further delivery of Products or any part thereof under that Contract or any other Contract between the parties and claim damages and/or receive reasonable cancellation fees; or
(ii) to affirm the Contract and claim damages from the Buyer; and
(iii) to recover, in addition to the payment under either (i) or (ii) above, interest on the unpaid amount (both before and after judgment) at the rate of [12%] per annum, until payment in full is made by the Buyer.
9. Products
9.1 The Products are described in the Supplier's catalogue as modified by any applicable Specification OR the Specification.
9.2 To the extent that the Products are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This Clause 9.2 shall survive termination of the Contract.
9.3 The Supplier reserves the right to modify the specification of the Products provided the modifications do not adversely affect the performance of the Products. In addition, the Supplier may at its discretion furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority, or non-availability of materials from its suppliers.
9.4 All descriptions, illustrations and any other information relating to the Products contained in the Supplier’s catalogues, brochures, price lists, advertising material and any sales or other particulars or literature are made by way of general description, are approximate only and for the general guidance and information of the Buyer. They shall not constitute warranties or representations by the Supplier nor shall they form part of any Contract.
10. Warranties
10.1 The Supplier warrants that on delivery, and for a period of 18 months from the date of manufacture. (Warranty Period), the Products shall be free from material defects in design, material and workmanship.
10.2 Subject to Clause 10.3, if:
(a) the Buyer gives notice in writing to the Supplier during the Warranty Period that some or all of the Products do not comply with the warranty set out in Clause 10.1;
(b) the Supplier is given a reasonable opportunity of examining such Products; and
(c) the Buyer (if requested by the Supplier) returns such Products to the Suppliers warehouse in RAK Free Trade Zone Technology Park at the Buyer's cost the Supplier shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
10.3 The Supplier shall not be liable for Products failure to comply with the warranty set out in clause 10.1 in any of the following events:
(a) the Buyer makes any further use of such Products after giving notice in accordance with Clause 10.2;
(b) the defect arises because the Buyer failed to follow the Supplier's oral or written instructions as to the storage, use and maintenance of the Products or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Buyer;
(d) the Buyer alters or repairs such Products without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; or
(f) the Products differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
10.4 These Conditions shall apply to any repaired or replacement of Products supplied by the Supplier.
11. Liability
11.1 Nothing in these Conditions shall exclude or limit the Supplier's liability to the extent that the same may not be excluded or limited as a matter of law.
11.2 The Supplier shall be liable to the Buyer for loss of or damage to the physical property of the Buyer caused by its negligence only up to 50,000 UAE Dirhams in respect of any event or series of connected events.
11.3 Subject to Section 11.1 and 11.2, in relation to Products, the Supplier’s maximum aggregate liability under or in connection with the supply, non-supply or purported supply of Products under any Contract, whether arising in contract, tort (including negligence) or otherwise, shall in no event exceed 100 % of the total amount payable by the Buyer in respect of Products under that Contract.
11.4 Subject to Section 11.1, the Supplier shall be under no liability to the Buyer for any loss of profit, loss of income, loss of use, loss of business, loss of revenue, loss of goodwill, or for any indirect or consequential loss or damage of any kind, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in tort (including negligence), contract or otherwise.
11.5 Any claim arising out of or in connection with a Contract must be commenced against the Supplier within 6 months of delivery of the Products giving rise to the claim, and Supplier shall have no liability to the Buyer under or in connection with any claim commenced after such time.
12. Force Majeure
Notwithstanding anything to the contrary in these Conditions, the Supplier shall not be liable to the Buyer for any failure or delay in performing its obligations under the contract for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of Products being prevented, delayed or rendered uneconomic by reason of Force Majeure Event. If due to such Force Majeure Event the Supplier has insufficient stocks to meet all its commitments the Supplier may apportion available stocks between its customers at its sole discretion.
13. Confidential Information
Each party undertakes to keep confidential, not use for its own purposes and not without the prior written consent of the other party disclose to any third party, any information of a confidential nature belonging or relating to the other party which may become known to it unless such information is or becomes public knowledge (other than by breach of this Clause 13) or is required to be disclosed by order of a competent authority.
14. Cancellation, Rescheduling and Termination
14.1 Orders for Products accepted by the Supplier may be cancelled or rescheduled by the Buyer only with the written consent of the Supplier (which consent the Supplier may withhold for any reason) and the Buyer shall indemnify the Supplier against the cost of all labor and materials used in connection with the Order so cancelled or varied and against all loss, damage cost, charges and expenses suffered or incurred by the Supplier as a result of that cancellation or variation.
14.2 Termination of any Contract in accordance with these Conditions shall not affect the accrued rights or liabilities of the parties at the date of termination.
15. Insolvency of the Buyer
If: (i) the Buyer becomes insolvent, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or carries out or undergoes any analogous act or proceedings under an applicable foreign law; or (ii) the Buyer ceases, or threatens to cease to carry on business then, without prejudice to any other right or remedy available to the Supplier, the Supplier may treat any Contract as repudiated and/or withhold any further supply of Products without any liability to the Supplier and, if any Products have been supplied but not paid for, the price or fees shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
16. Miscellaneous
16.1 These Conditions and any Contract shall be governed by the laws of the United Arab Emirates as applicable in the Emirate of Dubai, without regard to its conflict of laws principles. Any controversy, claim or dispute arising out of or in connection with these Conditions or any Contract or the breach thereof shall be referred to arbitration, in accordance with the then applicable Rules of Arbitration of the Dubai International Arbitration Centre. The number of arbitrators shall be one. The arbitrator shall be nominated and appointed by the Dubai International Arbitration Centre. Arbitration proceedings shall be held in Dubai, and the language of the arbitration shall be English. Under no circumstances are the arbitrators authorized to render an award inconsistent with the provisions of Clauses 10 and 11 of these Conditions. The award of the arbitrator shall be final and binding upon the parties, and judgment upon any such award may be entered in any court having jurisdiction.
16.2 Failure by the Supplier to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bear the exercise or enforcement thereof any time or times thereafter.
16.3 If any provision or part of a provision of these Conditions is or is held to be unenforceable or invalid, such unenforceability or invalidity shall not affect the enforceability of any other provision.
16.4 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any rights or obligations under the Contract. The Buyer may not assign, transfer, novate or otherwise dispose of all or any of its rights or delegate any of its obligations there under, in whole or in part, without the prior written consent of the Supplier.
16.5 These Conditions and the relevant Contract constitutes the entire agreement and understanding between the parties with respect to its subject matter and supersede any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to the date of any Contract except as expressly stated in that Contract. The Buyer shall not have any remedy in respect of any untrue statement made by the Supplier upon which the Buyer relied in entering into a Contract (unless such untrue statement was made fraudulently or was in relation to a fundamental matter including a matter fundamental to the Supplier’s ability to perform its obligations under the Contract) and the Buyer’s only remedies shall be for breach of contract as provided for in these Conditions.
16.6 Except as set out in the Conditions, any variations, modification or amendment to any Contract including the introduction of any additional terms and conditions, shall only be binding when made in writing, agreed and signed by the Supplier.
16.7 All notices given under these Conditions shall be sent to the address of the other party set forth in the Quotation or to such other address as such party may designate from time to time by such notice. Notice shall be regarded as properly given if sent in writing and shall be deemed to have been served on delivery if sent by hand, 2 days after dispatch if sent by mail, and on confirmation of transmission, if sent by facsimile.