Standard terms and conditions of sale and service

1. Definitions

1.1 “Seller” means Elcome International L.L.C.

1.2 “Buyer” means the party contracting with the Seller under the Agreement for the sale and purchase of the Product and/or the provision of Service. It includes the agent, ship manager, and any other authorised person contracting with the Seller and/or issuing purchase order (PO) on behalf of the End User.

1.3 “Product” means the item(s) agreed to be sold by the Seller to the Buyer under the Agreement.

1.4 “Service” means the service(s) agreed to be provided by the Seller to the Buyer under the Agreement.

1.5 “Agreement” means and includes any written agreements, contracts, proforma invoices, order acknowledgements, delivery orders, job sheets and invoices duly issued by the Seller and signed by the Seller and/or the Buyer for the sale and purchase of the Product and the provision of Service. It shall also include any Purchase Order issued by the Buyer provided the same is duly accepted by the Seller in writing.

1.6 “Parties” means Seller and the Buyer and “Party” means either of them.

1.7 “Sanctions and Export Controls” means all laws and regulations relating to economic and trade sanctions and export controls of (without limitation) the UK, US and EU and any other applicable sanctions and export control laws and regulations in the Buyer’s place of establishment or place of business.

2. Agreement

2.1 Quotations, price lists or any other communication from the Seller to the Buyer indicating the price of any Product or Service shall not be binding on the Seller unless expressly stated as such in the same or reduced to or incorporated in, an Agreement.

2.2 Any offer, proposal, order, agreement or understanding, either oral or written, as regards the purchase of Products or the provision of Services shall be binding on the Seller only when it is duly reduced to an Agreement.

2.3 Any amendment to the Agreement shall be valid only when it is reduced in writing and signed by the Seller and/or the Buyer.

2.4 The Agreement cannot be terminated without the prior written consent of the Seller. In such an event the Buyer shall be liable to pay damages equivalent to a minimum of 25% of the related invoice value to the Seller, which shall be without prejudice to the Seller’s right to compensation for any expenses or losses incurred in excess of the same.

A. Terms applicable to sale of products

3. Delivery and transport

3.1 Seller shall make every reasonable effort to meet quoted/ acknowledged delivery dates but shall not be liable in any manner for failure to meet such dates.

3.2 The agreed delivery dates and time shall always be approximate and subject to unforeseen circumstances.

3.3 Time shall not be of the essence for the purpose of delivery.

3.4 In the event the Seller is unable to deliver the Products within the agreed or stipulated period, the Seller shall be entitled to make partial deliveries and the delivery period shall be extended accordingly.

3.5 Failure to meet the delivery date shall not entitle the Buyer to terminate the Agreement and/or to demand compensation unless the Buyer can prove intent or gross negligence on the part of the Seller.

3.6 If the Seller cannot reasonably be expected to meet its delivery commitment as a result of force majeure, the Seller shall have the right to suspend the delivery. If such circumstance persists for more than two months then either Party may dissolve the related Agreement, by serving a written notice to the other. Force Majeure shall include, but not be limited to, the following:

a) Operational failure or business interruption, irrespective of nature or cause;
b) Delayed or late delivery by the carrier or manufacturer;
c) Any transportation problem which may hamper or impede the transportation of Products from the manufacturer to the Seller;
d) Import and export restrictions of any nature.

3.7 Unless agreed otherwise, all deliveries shall be Ex Works (Incoterms 2010) Dubai.

3.8 Risk shall pass upon delivery. Seller accepts no liability for any loss or damage caused to the Products subsequent to delivery.

3.9 If the Buyer fails to take delivery on the designated date or within five business days thereafter, the Seller shall be entitled to either:

a) Store the Products at the Buyer’s expense and risk against a storage fee of 1.5% per month of the invoice value of such Products, and be entitled to invoice the Buyer for the Products and the storage fee; or
b) Terminate the Agreement without any judicial intervention, and without prejudice to Seller’s right to compensation for any expense or loss incurred.

3.10 In no event shall Seller have any liability in connection with transportation or shipment, of the Products.

3.11 Products where delivered, are strictly not returnable. In exceptional cases, as determined by Seller at its sole discretion, Seller may agree to accept the return of any Product and a cancellation of the corresponding order or part of it. In such cases Seller reserves the right to claim from the Buyer the costs incurred by Seller to bring the Products to a saleable condition and a re-stocking or cancellation fee equivalent to 25% of the related invoice.

4. Title

4.1 Notwithstanding delivery and subject to the passing of risk in the Products to the Buyer pursuant to Clause 3.8, title to the Products shall remain with Seller until all prices due in respect of the Products have been paid in full and realised by Seller.

4.2 Until such time as the title to the Products passes to the Buyer, the Buyer’s possession of the Products shall be deemed to be on behalf of the Seller as its agent. During such period the Buyer shall store the Products in a secure and proper environment with adequate insurance cover and capable of being distinctly identified. The Buyer may resell or use the Products in the ordinary course of its business, but shall account to Seller the proceeds of such sale, usage or otherwise, whether tangible or intangible, including insurance proceeds, and shall retain all such proceeds secure and separate from any moneys or property of the Buyer and of third parties until the title to the Products passes to the Buyer.

4.3 Until such time as the title to the Products passes to the Buyer (and provided the Products are still in existence and have not been resold), Seller shall be entitled at any time to require the Buyer to deliver the Products to Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Products are stored and repossess the shall not be liable to reimburse to the Buyer the costs/expenses incurred by him on such Products, including shipping, taxes, duties, etc.

4.4 The Buyer’s right to sell or use the Products as referred to in Clause 4.2 above shall immediately cease if any security held by any third party is enforced over all or any part of the Buyer’s assets or if it is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary, or if it makes an arrangement with its creditors, or generally becomes unable to pay its debts. On cessation of the Buyer’s right to sell or use the Products, the Buyer’s possession of the Products shall be deemed to be on behalf of the Seller as its agent. Until such time as Seller exercises its right under Clause 4.3 above, the Buyer shall store the Products in a secure and proper environment with adequate insurance cover and capable of being distinctly identified.

4.5 Until such time as the title to the Products passes to the Buyer, the Buyer shall not be entitled to pledge or in any way charge by way of security any of the Products. Any breach of this covenant shall (without prejudice to any other right or remedy available to Seller) result in all Invoices of the Seller to the Buyer becoming due and payable forthwith.

5. Representations, warranty claims, and liability

5.1 Seller warrants that it has good title to and/or valid license to supply the Products to the Buyer.

5.2 Specifications of the Product are subject to change by the manufacturer. Unless otherwise agreed, the Products are supplied in accordance with the manufacturer’s standard specifications. As these may be improved, or modified, Seller reserves the right to increase its quoted or listed price, and under no circumstances will it consider cancellation of such orders or the return of the Products related to such orders.

5.3 In the event the manufacturer notifies the Seller that the Product, which is the subject of an Agreement, has been discontinued, Seller shall not be held responsible for any loss or damage caused to the Buyer.

5.4 Seller will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the Products from the manufacturer’s specifications or technical data.

5.5 Immediately after delivery, the Buyer shall inspect the Products for any defects. Any such defects must be notified to the Seller, in writing, within ten days from the date of delivery. On expiry of such period, the Buyer shall be deemed to have, irrevocably and unconditionally, accepted the Products. In any event such notice shall be given before the Products are resold. No claim for defects will be tenable if the Products are resold. Subsequent to giving such notice, the Buyer shall provide the Seller reasonable opportunity to test the Products. Notifying the Seller shall not suspend the Buyer’s payment obligation in respect of the Products in dispute.

5.6 If any part of the Product should prove defective in materials or workmanship under normal operation, such part or the Product will be repaired or replaced strictly in accordance with the warranty cover and its terms as provided by the manufacturer of such part or Products provided that no attempt has been made to repair the same or no modification of the Product has taken place. Seller reserves the right to charge the Buyer for any Service provided under this Clause if the same relates to a defect not covered by the related warranties.

5.7 Seller disclaims and excludes all other warranties, whether express or implied, 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.

5.8 Without prejudice to the foregoing, no standard or specification as to the suitability of the Product for any purpose shall give rise to any legal liability of the Seller. The Buyer shall satisfy itself that the Product is suitable for the purpose of its intended use before the Products are installed and used.

5.9 In case of any loss incurred by the Buyer arising out of, or related to, the use of the Products then neither the Seller nor its employees shall be held liable.

5.10 The Seller shall not be held liable for any indirect, special, incidental, or consequential loss or punitive damages, of any manner whatsoever.

5.11 Except for standard warranties and any individual written warranties supplied with the Products, the Seller does not accept and will not be liable for any warranties whether oral, express or implied.

5.12 Any warranty given by the Seller shall deem to be invalid if:

a) And as long as the Buyer is in default vis-à-vis the Seller
b) The Products have been exposed to abnormal conditions or have been handled incompetently or carelessly
c) The Seller has not been given an opportunity to investigate a defect within ten working days of its discovery.

5.13 In all the cases, the Seller’s liability with respect to the Products shall be limited only up to the extent of the liability of the manufacturer of such Products. Seller’s liability with respect to the Products shall not be independent of the liability of manufacturer irrespective of whether such manufacturer continues to do business or is liquidated or under liquidation.

5.14 In any event the total liability of Seller, on any claim, whether in contract, tort (including negligence) or otherwise, arising out of, connected with, or resulting from the performance or non-performance of any Agreement or from the sale, delivery, resale, repair, or replacement of Products shall not exceed the proportionate price of the Products, which gives rise to the claim, according to its related invoice.

6. Price and payment

6.1 Prices as quoted in the catalogues, price lists and other advertising literature or material used by the Seller are intended only as an indication as to price and the range of Products and are subject to change at any time, at the sole discretion of the Seller.

6.2 Invoices will be issued by Seller on the date of delivery of the Products. In the event of any discrepancy Buyer shall bring it to the notice of Seller within seven (7) working days from the date of receipt of the invoice.

6.3 Invoices shall ordinarily be denominated in U.A.E. Dirhams (AED). Where an invoice is denominated in any currency other than AED, the Buyer shall settle the invoice in such currency.

6.4 All the prices quoted by the Seller, are exclusive of all applicable sales or Value Added Tax (VAT), government charges or duties, unless specifically agreed to otherwise in writing. The Seller shall add Value Added Tax (VAT) if appropriate and shall issue a valid tax invoice against payments, if required by the applicable law. The Buyer shall indemnify the Seller against any loss or penalties under the applicable tax laws.

6.5 The Seller at its sole discretion shall decide the manner, sequence and mode of payment.

6.6 Unless agreed otherwise in writing, all invoices shall be settled in full, without any deductions or withholding, and within thirty days from the date of delivery.

6.7 All charges related to transfer of funds, including but not limited to wire transfer, letter of credit, and confirmation charges, will be borne by the Buyer, unless otherwise agreed in writing.

6.8 The Buyer shall not be entitled to any kind of discount or set-off unless it is expressly agreed by the Seller. Any kind of claim by Buyer, as it may have on the Seller, to set-off is explicitly excluded.

6.9 In case the Buyer fails to make the complete payment within thirty days (unless specifically agreed otherwise in writing) from the date of delivery, then the Buyer shall be liable, without any reminder or service of notice in default, to pay interest at the rate of 1.5% per month on the outstanding amount from the date of such default till payment in full.

7. Termination

7.1 If the Buyer fails to meet any of its obligations in any form whatsoever with the Seller, then the Seller shall have right either to suspend the delivery of Products or to dissolve the Agreement by serving a notice in writing to the Buyer and demand the payment of all outstanding sums forthwith. In such circumstance, the Buyer shall not be entitled to any kind of compensation for any kind of loss sustained by it.

7.2 The Seller shall be entitled, without prejudice to its other rights and remedies, either to terminate, wholly or in part, any or every Agreement between itself and the Buyer or to suspend any further deliveries under any or every Agreement in any of the following events:

a) If any invoice is due and payable by the Buyer to the Seller but is unpaid.
b) If the Buyer has failed to provide any letter of credit, bill of exchange or any other security as required by the Agreement provided that in such an event the Seller’s right of termination or suspension under this condition shall apply only in regard to the particular Agreement in respect of which the Buyer shall have so failed.
c) If the Buyer has failed to take delivery of the Products under any Agreement.
d) If the Buyer becomes insolvent or enters into any composition or arrangement (including a voluntary arrangement) with its creditors, or being a body corporate, has passed a resolution for voluntary winding up or for a receiver (including an administrative receiver) or administrator to be appointed or if any such order or appointment is made or it suspends payment of its debts, in whole or in part, or if any application has been made for an interim order or a petition has been presented for a bankruptcy order or if any such order is made or if the Buyer, whether or not a body corporate shall carry out or be subject to any analogous act or proceedings under any law.

7.3 The Seller shall be entitled to exercise its rights of termination or suspension under this Clause at any time during which the event giving rise to such rights is continuing and has not been remedied and, in the event of a suspension, the Seller shall be entitled, as a condition of resuming delivery under any Agreement between it and the Buyer, to require prepayment or such security as it may require for the payment of the price of further Products.

7.4 Termination of the Agreement for any reason whatsoever 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.

B. Terms applicable to sale of orders

8. Price and payment

8.1 All Agreements of Service shall be executed and charged at the applicable hourly rates commencing two hours before the actual time of departure from base of the Service personnel till his/their return to base and for the entire duration required to provide the Service.

8.2 Traveling, accommodation, boarding, and any other related expenses of or incurred by Service personnel and related to the Service shall be chargeable including applicable overheads.

8.3 Extra charges would be applicable for Service provided beyond the normal business hours.

8.4 Components, parts, equipment, and materials used during or for the Service shall be charged separately.

8.5 Unless agreed otherwise in writing by the Seller, terms of payment shall be partly in advance and the balance, without any deductions or withholding, within fifteen (15) days of receiving the final invoice after completion of the job. Final invoice will be issued by Seller after completion of the Service. In the event of any discrepancy Buyer shall bring it to the notice of Seller within seven (7) working days from the date of receipt of the invoice. In case the balance payment in full is not made on the scheduled date, Buyer shall be liable, without any reminder or service of notice, to pay interest at the rate of 1.5% per month on the outstanding amount from the date of such default till payment in full.

8.6 Charges for the Service shall be due and payable on attendance of job irrespective of whether the complaint/problem has been resolved, provided the inability to do so is due to circumstances beyond the reasonable control of the Seller.

9. Terms of service, warranty, termination

9.1 Seller reserves the right to determine the number of persons required to perform the Service.

9.2 Buyer shall inspect the Product/equipment on which the Service has been provided promptly upon completion of Service and shall notify any defects promptly in writing within seven days from completion of the Service.

9.3 Seller warrants that the Services shall be performed with reasonable skill and care and in a good and workmanlike manner.

9.4 Warranty for any defect arising out of the Service that has been paid for shall be restricted to rectifying the defect at no additional cost to the Buyer. Seller reserves the right to charge the Buyer for any Service provided under this Clause if the same is not covered by the related warranties.

9.5 Warranty does not apply to normal wear and tear nor to issues related to software and is subject to proper and diligent handling and usage of the Product/equipment by the Buyer.

9.6 In case of termination of the Service Agreement by the Buyer before its completion, for reasons other than the failure of the Seller to provide the Service as agreed, the Seller shall be entitled to claim the full charges related to the Service.

9.7 Except for standard warranties applicable to Services, the Seller does not accept and will not be liable for any warranties whether oral, express or implied.

C. Terms applicable to electronic services

10. Warranty policy

10.1 Standard repaired and reconditioned Products are warranted to be free from defect in workmanship and materials used for repair under normal conditions for a period of twelve (12) months from the date of shipments, unless otherwise stated.

10.2 The warranty is void if the reported failure or defect of the Product has resulted from accident, abuse, cannibalisation of parts, catastrophic failure conditions, severe environmental exposure, misapplication, negligence, contamination, improper calibration, storage, or handling by the Buyer, or due to unauthorised maintenance or repair or removal or alteration or tampering of the warranty label in any manner.

11. Limited liability

11.1 If any part of the Product should prove defective in materials or workmanship under normal operation, such part or the Product will be repaired or replaced strictly in accordance with the warranty cover and its terms as provided by the manufacturer of such part or Products provided that no attempt has been made to repair the same or no modification of the Product has taken place. Seller reserves the right to charge the Buyer for any Service provided under this Clause if the same relates to a defect not covered by the related warranties.

11.2 In no event shall the Seller be liable for any indirect, special, incidental, or consequential loss or punitive damages, of any manner whatsoever.

D. Other terms applicable to product & service orders (as per A, B, and C above)

12.1 The validity, performance and all the matters relating to the interpretation and effect of these Terms & Conditions and all disputes and/or differences related thereto or arising there from shall be governed by the laws of the United Arab Emirates and shall be subject to the non-exclusive jurisdiction of the Dubai Courts. In case the cause of action is the default in the payment, the Buyer shall bear all related costs of the Seller including attorney’s fees and other disbursements not reimbursed by the Court.

12.2 The Buyer shall not use or export or re-export any Products purchased/received from the Seller in violation of any applicable laws or regulations of U.A.E. The Buyer shall at all times comply with any applicable U.A.E. laws and regulations relating to the use and export of the Products.

12.3 The Agreement constitutes the entire, complete, and exclusive understanding between the Parties with respect to the subject matter thereof and contains all the terms and conditions of sale of the Product and the Service. No course of dealing or usage of the trade shall be applicable unless expressly incorporated in an Agreement.

12.4 The Buyer warrants and agrees that it shall (and shall procure that its directors, officers, agents, affiliates and employees shall):

(a) Observe and comply with all Sanctions and Export Controls;
(b) Not sell, transfer, export, re-export, or forward the Goods to any individual, entity or jurisdiction subject to Sanctions and Export Controls;
(c) The Buyer shall not cause the items purchased under the quote or invoice being sold to or used by any person or entity in countries which are under International Trade Restrictions, Sanctions or Embargo such as Iran, Sudan, Syria, etc. The Buyer shall keep the Seller and its suppliers completely indemnified against any liability or legal procedures for non-compliance or breach in this respect.
(d) Determine export and import licensing or permitting requirements for the Goods, obtain any required licenses and permits, and ensure that any such licenses, permits and authorisations are provided to the Seller within five (5) working days, on request;
(e) In case the Seller requests for documents and/or details pertaining to the end use of the Goods, the same shall be provided to the Seller with five (5) working days of request;
(f) Keep records relating to the Goods, including but not limited to, any documents relating to the sale, transfer, export, re-export, or forwarding of the Goods, for a minimum of five (5) years after entering into the Contract with the Buyer.

12.5 The Seller assumes no liability to the Buyer or any other person for the Buyer’s acts of non-compliance with Sanctions and Export Controls.

12.6 The Terms & Conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification signed by the Seller.

12.7 These Terms & Conditions shall apply and supersedes to all the Agreements or Contracts entered into by the Buyer and the Seller and/or any POs issued by the Buyer.

12.8 If any term or provision of these Terms & Conditions is held to be invalid, illegal or unenforceable by any Court of competent jurisdiction, such term/provision shall be severed and the remainder of the terms/provisions shall continue to be applicable in full force and effect as if these Terms and Conditions had been agreed without the invalid, illegal, or unenforceable term/provision.

12.9 Unless stated otherwise, all trade and commercial terms as used in the Agreement shall be interpreted in accordance with the applicable U.A.E. Laws.