TERMS & CONDITION OF SALES
The Terms & Conditions contained herein, together with any additional or different terms contained in the final written proposal issued by 3A-Cryogenic FZE (“3A”) and submitted to buyer if any (which proposal shall be incorporated herein and control over this terms & conditions to the extent it contains any conflicting terms & conditions) constitute the entire agreement (“Agreement”) between the parties with respect to the subject sale.
Acceptance of 3A of buyer’s purchase order (“PO”) and buyer’s acceptance of 3A’s proposal is expressly limited to and conditioned upon Buyers acceptance of these terms & condition of sale, which may not be waived or changed except in writing signed by 3A. Any additional, inconsistent or different terms contains in buyers purchase order unless included in he 3A offer & in the acknowledgement of order will be rejected.
3A Acknowledgement of Order from PO terms as defines:
- Equipment – means all goods, equipment & parts and accessories were sold to the buyer by 3A.
- Services – means labor, supervision, repair and project engineering services provided by 3A
- Buyer – means the party issuing the purchase order to 3A for equipment, parts or services regardless of whether or not the buyer is the end use of the equipment or services.
2- PAYMENT TERMS & INVOICES
Unless a different payment schedule is agreed to in writing by 3A, payment terms are net 30 days except that all payment made thru bank transfer and cash payment at the time of order placement.
An interest of 1.5 % monthly per late payments as per the agreed terms will be charged calculated per diem Any check returns for non-sufficient funds or any stopped or reversed fund payment shall be subject to a fee. Buyer’s credit limit will be set at 3A sole discretion and maybe modified at any time based upon buyer’s credit risk is determined by 3A. In the event that buyer’s credit risk increases or the buyer failed to pay timely, 3A may suspend performance and/or will require alternate payment methods. Buyer shall notified 3Aof any items disputed in good faith relating to an invoice within 15 days after the invoice date in writing specifying the mature of disputed item. Any withhold amount from the invoice will not be accepted by 3A without the above procedure. In the event if become necessary for 3A to refer the buyer’s account to a third party for collection or for 3A to take other reinforcement measures of this agreement against buyer. Buyer’s agrees to pay any and all attorney and arbitrator’s fee, lien filing fees, collection costs and legal expenses associated therewith incurred by 3A.
3- TIME LIMIT
All Quotations are valid for the period of 30 days, unless otherwise extended in writing by 3A.
- Acceptance of equipment occurs at the time of delivery.
- Acceptance of any services provided hereunder occurs at completion.
Unless a different warranty is agreed to in writing by 3A, 3A warrant to buyer that all equipment supplied by 3A shall be free from defects in materials & workmanship in a period of one year after initial use (or placement to the storage) or 18th month after the date of shipment, whichever expire first. Parts sold as spares of for replacement are warranted for 30 days only after the date of shipment or delivery note receipt or until the expiration of the warranty offered by the original manufacturer, which ever expires first. All resale product and components only carry the warranty offered by their original manufacturer. 3A warrants service against defect in workmanship for a period of 30 days upon the period of completion.
- To have been improperly installed or self-repaired
- To have been altered or modified in anyway without 3A prior written approval
- To have been subjected to misuse, abuse, excessive external forces, negligence or accident
- To have been installed, stored, used or operated in a manner contrary to manual instructions of the equipment, specifications & drawings, outside the specified design condition or not used in accordance with normal operating and maintenance instructions
- As purchased as used equipment, a prototype or a sample
- Resulted from normal wear & tear, corrosion, or erosion. Each of the forgoing shall act to void any existing warranty. Proper installation of normal maintenance parts does not constitute a modification. Buyers agreed to defend, indemnify and hold 3A harmless from any third party claims arising out of use and hold 3A harmless from any third party claims arising out of the use, resale, or lease of said furnished Equipment or Services.
These warranties do not cover Buyer-furnished designs, goods, equipment, services or materials and do not apply to any equipment, services or materials and do not apply to any equipment or services or parts thereof which 3A determines:
6- EXCLUSIVE REMEDY
Should any failure to conform the applicable warranties stated above occur during the warranty period stated, the buyer should coordinate and provide 3A with prompt written notice identifying the problem, but in no event shall the notice to 3A be not more than 30 days after discovery of such failure. Provided that the buyer had fulfilled all of its obligations under the agreements and complied with the procedure as set forth in this section 7, 3A shall inspect the equipment within 10 working days after receipt of the buyers notice. 3A sole obligations and buyer sole remedy is for 3A to correct such non-conformity by the following options:
- Repair or replacement of the non-conforming equipment or spare parts thereof
- Refund the purchase of the non-conforming equipment or spare parts
- In the case of non-conforming services, re –perform the services or refund the price
- 3A shall not be responsible for the transport or return of the equipment or spare parts for repair or replacement
- If it is determined by 3A that such failure is not covered by the warranty stated above, the 3A will invoice the buyer and the buyers agreed to pay for all the inspection, repair, replacement & other charges.
- No 3A liabilities exist for Equipment or Services shown to be defective until such time as the equipment & services have been paid for.
The foregoing warranties & remedies are exclusive and in lieu of all other claims of relief and warranty qualities, performance and design written, oral or implied and all other warranties including any implied warranties of merchantability and fitness for a particular purpose or those arising from course of dealing or usage of the trade, all of which are hereby disclaimed by 3A-Cryogenic FZE and all equipment manufacturers
No termination by buyer by default shall be effective unless, within 15 days after receipt by 3a buyer’s written notice specifying the default, 3A fails to initiate and pursue correction of such specified default.
9. EXCUSABLE DELAYS
The schedule for the delivery of equipment and performance of services will be modified for delays resulting from causes beyond 3A’s reasonable control, including but not limited to:
- Acts of God
- War & Terrorism
- Strikes & restriction of United Arab Emirates or other government having jurisdiction and sanctions
- Delays in transportation due to holidays and duty timing season occasion or breaks
- Inability to obtain necessary labor, materials or manufacturing facilities
10- DELIVERY & RISK OF LOSS OR DAMAGE
Unless otherwise agreed in writing by 3A, all domestic shipment are FCA by 3A’s company and all international shipment are CFR or CPT port of destination. Notwithstanding anything to the contrary, all lead time quoted & accepted by 3A shall be from the date 3A accepted the buyers purchase order. If 3A agrees in writing to prepay all the freight, delivery charges, then the 3A shall include the transport charges in the buyer’s invoice. Delivery date will be confirm on the 3a acceptance of the purchase order and 3A will give the best effort to meet the delivery date related to excuses acceptable in section 9. 3A could make partial or whole shipment depending on the availability & invoice buyer accordingly. Despite any agreement with respect to collection or delivery or prepayment of transportation or transit insurance charges, the risk of loss or damage shall pass to buyer upon completion of the delivery or upon moving the ordered equipment into buyer storage whichever comes first.
11- LAWS, CODES AND STANDARDS
Price & delivery schedule are based on the applicable laws, code and standards stated in the equipment or spare parts specifications in effect as of the date seller’s acceptance of Purchase Order If such laws, codes and standards change, or if Purchaser changes the laws, codes and standard stated in the equipment specifications and such change increase or decrease the cost of performing the work or impact the delivery schedule, then 3A will advise buyer of the same. Any local laws, statutes, codes or standards or interpretation thereof that do not match national building codes are hereby exempt from the agreement unless written copies are presented by buyer to 3A as additional specification and accepted in writing or stamp by 3A as part of this agreement.
3A shall retain the legal & equitable title to any equipment or spare parts until buyer had paid to such equipment in full, and buyer should complete and execute all the documents required to this effect upon 3A’s request and allow 3A to repossess the equipment in the event the buyer’s failure to pay after receipt of written notice from 3A.
Installation of equipment furnished under shall be by buyer, unless otherwise agreed in writing signed and stamp by 3A’s authorized representative. Installation services provided by 3A or one of its affiliates shall be pursuant to a separate agreement.
14- FIELD SERVICES
Field services will be provided on a per diem basis upon written authorization by buyer and the 3A’s rates in effect when such services are provided. Buyer will provide free and unrestricted access to 3A personnel, contractors, sub - contractors, equipment and any other personnel necessary in order to 3A to complete the contracted work. The buyer shall ensure the preparation of working environment upon the inspection service or repair service has been scheduled or execute. In the event of field services the buyer should provide all the assistance required in the facilities specially machineries and other tools required to be utilized unless agreed by 3A in writing to provide in rental as per purchase order.
Cancellation of any order shall be in written notice to 3A and will be subjected to 3A cancellation charges and fees including, but not limited to, all cost incurred through the date of cancellation, the cost for the materials ordered that cannot be returned, the service or field inspection and urgent repairs that cannot be undone, the return and cancellation fees, cost to process such cancellation plus a reasonable profit.
16- INTELLECTUALPROPERTY & CONFIDENTIALITY
Unless otherwise agreed to in writing signed by 3A’s authorized representative, all right, title and interest in any inventions, developments, improvements or modifications of the equipment & services made by 3A and buyer as a result of an agreement shall exclusively remain in 3A and its suppliers.
Any DESIGNS, REPORT, PLANS, DRAWING, STANDARDS, SPECIFICATIONS & OTHER INFORMATION submitted to buyer by 3A (“3A Documents”) were develop at 3A supplier’s expense and shall remain as 3A exclusive property. Without the express prior written consent from 3A, Buyer should not copy or disclose 3A and its suppliers documents to any third party, and shall not use them to any purpose rather than to install, own, operate and maintain the subject equipment or to use the services, including, without limitations, use with any other project, or for completion of the project contemplated by this agreement by others.
3A and its suppliers documents are not suitable for use on any other agreement or project, and any reuse of the 3A documents without the express written consent from 3A will be at the sole risk of the buyer, and buyer shall indemnify, defend and hold 3A and its suppliers, harmless from any and all claims arising from the buyer’s reuse of 3A and its suppliers documents. Upon 3A’s request at any time, the buyers shall promptly return all 3A and its supplier’s documents.
The foregoing is 3A entire liability and buyer’s sole remedy for patent infringements of the equipment. Buyer shall defend, indemnify and hold 3A harmless from all expenses. Losses and other damages resulting from any actual or alleged infringement of intellectual property rights arising from 3A compliance with buyer’s designs, specifications and instructions, from the use of the equipment in combination with other materials, or from the operation of any process.
This agreement may not be transferred or assigned by buyer by operation of law otherwise without the prior written consent express from 3A. Any transfer or assignment by buyer of any rights, duties or obligations without 3A consent shall be void.
18- LIMITATIONS OF LIABILITY
Notwithstanding anything to the contrary in this agreement; in no event shall 3A, its affiliates, suppliers and subcontractors be liable to buyer or to any third party for any special, in direct, incidental, punitive or consequential damages including but not limited to loss of profits, loss of use, cost of capital, cost of substitute equipment, downtime cost, cost of delays or for any penalties, whether any such claim for the same is based on contract warranty, tort, negligence, strict liability, indemnification or otherwise.
Notwithstanding anything to the contrary of this agreement, 3A total liability arising out of this agreement for any claims whether in contract, warranty, negligence, tort, strict liability, indemnification, or otherwise or for any loss or damage arising out of, connected with this agreement or the performance or breach thereof, or from any design, sale, installation, operation or use of the equipment or performance of any services under the agreement, shall in no event exceed the purchase price paid to 3A by buyer for the specific equipment or spare part thereof or for the services giving rise to the claim.
19- EXPORT SALES COMPLIANCE WITH THE TRADE LAW
In no event shall 3A be required to export or deliver any technical information, data or equipment if such export or delivery is the prohibited or restricted by any law or regulations of the UAE Government, including department, agencies and sub-divisions thereof of any other applicable governmental agency of any country having jurisdiction, including the country in which the equipment or services to be sold will be installed, used or performed. Should 3A’s performance of its obligations hereunder be prohibited by any applicable governmental agency, in whole or in part of if the exportation or importation of the equipment which is the subject of this agreement be precluded because of the inability to obtain an export or import license within the reasonable time as appropriate, the 3A’s obligations hereunder shall be terminated at 3A option and 3A shall be entitled to reasonable cancellation charges. Under otherwise agreed in writing by 3A, buyers accept all the responsibilities for exporting & importing any equipment sold hereunder outside of the U.A.E., will be the exporter of record & importer of record, and will be responsible for filing documents, obtaining any licenses required by the U.A.E. or other government agencies, and paying all the duties & taxes necessary for the exportation and importation. Buyer agrees no to export, re-export or import any equipment, technical information or data of 3A without full compliance in U.A.E. and other laws of the countries having jurisdiction and shall cause the end user of the equipment od services to comply with such applicable laws. Buyer warrants and represents that it is in full compliance with all such applicable export and import laws, including but not limited to, the International Traffic Arms Regulations, the Export Administration Regulations and all U.A.E anti-boycott and embargo regulations, and Buyer shall provide 3A with such written assurances of compliance as requested by 3A from time to time. Specifically, Buyers agrees not to export, reexport, sell or lease any equipment or components thereof or technical data supplied by 3A to a prohibited person, to a prohibited country or for a prohibited use under the U.A.E or any other applicable trade laws.Buyer’ s agreed to indemnify and hold 3 A harmless from and against any all damages and expenses(including attorney’ s fees) resulting from Buyer’ s violation of applicable export and import regulations.
20- COMPLIANCE WITH ANTI-BRIBARY LAWS
Buyer warrants & represent that it is familiar with the requirements of the UAE foreign corrupt practices act and other similar anti - bribery laws, including without limitation, the anti - bribery convention and UAE bribery act, that it has not and will not violate those laws as may be amended from time to time and that it neither has nor will offer, make or agree to make, directly or indirectly, any gift or payment of any kind or any political contribution in violation of such laws.Buyer shall provide 3 A with such written assurances of compliance with such laws as requested by 3 A from time to time.Any payment, offer of payment, or agreement to make a payment that is contrary to the laws of the United Arab Emirates or the law of the country in which it is made, or any other payment in conflict with this clause, will constitute a materials breach of this agreement and any obligation of 3 A hereunder shall automatically terminate upon such breach without further liability to 3 A.Buyer agrees to indemnify and hold 3 A harmless from and against any and all damages and expenses(including attorney’ s fees) resulting buyer’ s violation of the requirements referenced in this section.
21- GOVERNING LAW; ARBITRATION
The agreement and any claim, controversy or dispute arising under or related to the agreement, the relationship of the parties, and the interpretation and enforcement of the rights and duties of the parties exclusively governed by the law of United Arab Emirates, excluding its conflict of law principles and excluding the united nation convention on contracts for the International sale goods. Buyer waives all causes of actions arising under this agreement after one year from date of occurrence of the event giving rise to any such claim, waives any sovereign immunity claims and defenses, and consents to and will not contest personal jurisdiction in the local and federal courts. Except for the account collection disputes, any disputes, controversies or claims arising out of or relating to this agreement, or breach thereof which cannot be resolved amicably within 60 days, shall be settled by binding arbitration. This agreement to submit to binding arbitration shall be especially enforceable under the prevailing arbitration law. The award of the arbitrator shall be final and a judgment may be entered upon it by any court having jurisdiction. A party desiring to invoke the arbitration provision shall serve written notice upon the others of its intention to do so and the name of an impartial individual who is acknowledgeable in matter pertaining to 3A Cryogenic FZE to serve as an arbitrator. If the other party objects with 15 days to the arbitrator proposed, and the party fails to agree on an arbitrator within 30 days thereafter, then the arbitrator shall be appointed by the arbitration tribunal. For domestic sales, the arbitration shall be conducted in accordance with the Commercial Arbitration Rule of the Arab Arbitration Association then prevailing. For international sales the arbitration shall be conducted in accordance with the International Arbitration Rules the prevailing of the International Centre of Disputes Resolution. Unless the parties agree otherwise all the arbitration shall be conducted and all related document submitted shall be in the English or Arabic language in UAE, and the arbitrator shall apply the substantive governing laws as specified above. All awards granted by the arbitrator shall be final and binding on the parties, and shall include interest from the date of any breach or default and from the date of the award until paid in full. Judgment may be entered on any award or decision of the arbitration panel by either party in a court of competent jurisdiction. The arbitrator may grant emergency interim relief according to the applicable arbitration rules and shall award costs, fees, and other expenses of the arbitration, including reasonable attorney’s fees, to the party not in default. If the buyer fails to promptly assume 3A’s defense when requested to do so as required under this agreement then 3A may defend with counsel of its own choice at expense of buyer.
The agreement as defined in section 1 constitute the complete and exclusive agreement between the 3A and the buyer and there are no agreements, understandings, restrictions, warranties, or representation between 3A and Buyer other than those set forth herein. If any provision, or any part thereof, of this agreement is found by any court or governmental agency of competent jurisdiction to be invalid or unenforceable for any reason whatsoever, then such provision shall redeemed revised and applied to the maximum extent allowed by applicable law, and such invalidity or unenforceability shall not affect the remainder of such provision or any other provision here which shall remain in full force and effect. All obligations herein shall survive termination, expiration or completion of this agreement. No term or condition is intended for the benefit of any third party, and 3A and Buyer do not intend any term or condition to be enforceable by a third party, including any end-user of equipment or services. 3A failure on any occasion to insist on strict performance of any term or condition hereof shall not constitute a waiver of compliance with such term or condition on any other occasion or a waiver of any default. References to any statutory provision, enactment, order, regulation or instrument as amended, replaced, consolidated, or re-enacted from time to time and shall include any orders regulations, codes of practice, instrument or other subordinate legislation made under it. The headings used throughout are for convenience only and shall be given no legal effect. Fax copies, mail scanned copies shall be given the full force and effects as an original.