Terms And Conditions

1. Application of Conditions
   • The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller; and
   • These Terms and Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted by the Seller, or any such order is made or purported to be made, by the Buyer.
2. Interpretation
   • In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

 

“Business Day”	means any day other than a Saturday, Sunday or bank holiday in United Arab Emirates (U.A.E.);
“Buyer”	means the person who accepts a quotation or offer of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
“Contract”	means the contract for the purchase and sale of the Goods under these Terms and Conditions;
“Contract Price”	means the price stated in the Contract payable for the Goods;
“Delivery Date”	means the date on which the Goods are to be delivered as stipulated in the Buyer’s order and accepted by the Seller;
“Goods”	means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms and Conditions;
“Month”	means a calendar month; and
“Seller”	means DCARBON SOLUTIONS DMCC, a company registered in United Arab Emirates Dubai, with registration number DMCC195040 and license number DMCC-864399, registered at Jumeirah Lakes Towers, Dubai, United Arab Emirates, and includes all employees and agents of DCARBON SOLUTIONS DMCC.

 

• Unless the context otherwise requires, each reference in these Terms and Conditions to:

“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

“these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;

a Schedule is a schedule to these Terms and Conditions; and

a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.

a “Party” or the “Parties” refer to the parties to these Terms and Conditions.

• The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
• Words imparting the singular number shall include the plural and vice versa.
• References to any gender shall include the other gender.

3. Basis of Sale
   • The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
   • No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
   • Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the goods or has accepted an order placed by the Buyer by whichever is the earlier of:

the Seller’s written acceptance;

delivery of the Goods; or

the Seller’s invoice.

• Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

4. Orders and Specifications
   • No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.
   • The specification for the Goods shall be that set out in the Seller’s sales documentation unless varied expressly in the Buyer’s order (if such variation(s) is/are accepted by the Seller). The Goods will only be supplied in the minimum units thereof stated in the Seller’s price list or in multiples of those units.  Orders received for quantities other than these will be adjusted accordingly.
   • Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Seller are intended as a guide only and shall not be binding on the Seller.
   • The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
   • No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.
5. Price
   • The price of the Goods shall be the price listed in the Supplier’s Sales Brochures current at the date of acceptance of the Buyer's order or such other price as may be agreed in writing by the Seller and the Buyer.
   • Where the Seller has quoted a price for the Goods other than in accordance with the Seller's published price list the price quoted shall be valid for 30 days only or such lesser time as the Seller may specify.
   • The Seller 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 Seller which is due to any factor beyond the control of the Seller (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which are requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
   • The Seller may allow the Buyer quantity discounts subject to and in accordance with the conditions set out in the Seller's published price list for the Goods current at the date of acceptance of the Buyer’s order.
   • Any settlement discount specified by the Seller in the Contract will be allowed by the Seller to the Buyer in respect of Goods for which payment is received by the Seller on or before the due date and otherwise in accordance with the payment terms set out in these Terms and Conditions and provided that no other amounts owing by the Buyer to the Seller are overdue and unpaid.
   • Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are exclusive of the Seller’s charges for packaging and transport.
   • The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to the Seller.
6. Payment
   • Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the price of the Goods at any time before delivery of the Goods.
   • The Buyer shall pay the price of the Goods (less any discount or credit allowed by the Seller, but without any other deduction credit or set off) within on Receipt of the date of the Seller’s invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Buyer and the Seller in respect of the Contract. The time for the payment of the price shall be of the essence of the Contract.  Receipts for payment will be issued only upon request.
   • All payments shall be made to the Seller as indicated on the form of acceptance or invoice issued by the Seller.
   • In the case that credit terms are offered, the Seller is not obliged to accept orders from any customer or buyer who has not supplied the Seller with references satisfactory to the Seller. If at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and notwithstanding sub-Clause 6.2 of these conditions, all amounts owing by the Buyer to the Seller shall be immediately payable in cash.
7. Delivery
   • Delivery of the Goods shall be made by the Seller delivering the Goods to the place specified in the Buyer’s order and/or the Seller’s acceptance as the location to which the Goods are to be delivered by the Seller or, if no place of delivery is so specified, by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection.
   • The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer.
   • Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these Terms and Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
   • If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provisions of sub-Clause 10.1 risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure.
8. Non-Delivery
   • If the Seller fails to deliver the Goods or any part thereof on the Delivery Date other than for reasons outside the Seller’s reasonable control or the Buyer’s or its carrier’s fault:

if the Seller delivers the Goods within 60 days thereafter the Seller shall have no liability in respect of such late delivery; or

if the Buyer gives written notice to the Seller within 15 Business Days after the Delivery Date and the Seller fails to deliver the Goods within 60 Business Days after receiving such notice the Buyer may cancel the order and the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to those not delivered over the price of the Goods not delivered.

9. Inspection/Shortage
   • The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be.
   • Where the Goods cannot be examined the carrier’s note or such other note as appropriate shall be marked “not examined”.
   • The Seller shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the provisions of this Clause 9 are not complied with and, in any event, will be under no liability if a written complaint is not delivered to the Seller within 15 Business Days of delivery detailing the alleged damage or shortage.
   • In all cases where defects or shortages are complained of the Seller shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to the Seller before any use is made thereof or any alteration or modification is made thereto by the Buyer. Subject to sub-Clauses 9.3 and 9.4, the Seller shall make good any shortage in the Goods and where appropriate replace any Goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
10. Risk and Retention of Title
    • Risk of damage to or loss of the Goods shall pass to the Buyer at:

in the case of Goods to be delivered at the Seller’s premises, the time when the Seller notifies the Buyer that the Goods are available for collection; or

in the case of Goods to be delivered otherwise than at the Seller's premises, the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

• Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods.
• In the event that the Buyer sells or transfers the Goods to a third party before legal and beneficial title has passed to him under these Terms and Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to the Seller) shall be held by the Buyer on behalf of the Seller. The Buyer shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds, and that all moneys held on the Seller’s behalf are identified as such.
• The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

11. Assignment
    • The Seller may assign the Contract or any part of it to any person, firm or company without the prior written consent of the Buyer.
    • The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
12. Defective Goods
    • If on delivery any of the Goods are defective in any material respect and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery as “condition and contents unknown” the Buyer gives written notice of such defect to the Seller within 15 Business Days of such delivery, the Seller shall at its option:

replace the defective Goods within 60 Business Days of receiving the Buyer’s notice; or

refund to the Buyer the price for those Goods (or parts thereof, as appropriate) which are defective;

but the Seller shall have no further liability to the Buyer in respect thereof and the Buyer may not reject the Goods if delivery is not refused or notice give by the Buyer as set out above.

• No Goods may be returned to the Seller without the prior agreement in writing of the Seller. Subject thereto any Goods returned which the Seller is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Seller’s sole discretion the Seller shall refund or credit to the Buyer the price of such defective Goods but the Seller shall have no further liability to the Buyer.
• Unless otherwise acknowledged in writing under the terms of a Limited Condition Warranty offered together with the Goods, the Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Seller’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Seller’s prior approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party.
• Except in respect of death or personal injury caused by the Seller’s negligence, or as expressly provided in these Terms and Conditions, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.
• The Buyer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Buyer is carried out in accordance with directions given by the Seller or any competent governmental or regulatory authority and the Buyer will indemnify the Seller against any liability loss or damage which the Seller might suffer as a result of the Buyer’s failure to comply with this condition.

13. Warranty and Disclaimer
    • Seller represents, warrants and agrees: (a) to perform the Services in a good and workmanlike manner; and (b) that, for a period of one (1) year from delivery of the Goods, the Goods sold by Seller will perform substantially in accordance with the applicable specifications therefore, provided that this warranty shall not apply to any Goods which is modified after delivery by Seller; and (c) that Seller has full power, right and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to Buyer herein, if any, including without limitation, any rights to the Goods developed under this Agreement; and (d) that Seller has not previously or otherwise granted nor will in the future grant any rights to any third party which conflict with the rights herein granted by Seller. Buyers sole remedy, and Sellers entire liability, for breach of the foregoing will be to either repair the Goods or replace Goods to bring it substantially into conformance with the described warranty.
    • ALL SERVICES AND GOODS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND FROM ANYONE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, SELLER DOES NOT WARRANT RESULTS OF USE OR THAT THE PRODUCTS ARE BUG FREE OR THAT THE PRODUCT’S USE WILL BE UNINTERRUPTED. SELLER DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESSED, INCLUDING WITHOUT LIMITATION ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND THE STATED EXPRESS WARRANTIES, IF ANY, ARE IN LIEU OF ALL OTHER OBLIGATIONS AND PERFORMANCE LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE RENDERING OF THE SERVICES HEREUNDER. SELLER MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY THIRD-PARTY MATERIALS, EVEN IF SUCH THIRD-PARTY MATERIALS WERE RECOMMENDED BY SELLER, AND SELLER does not warrant that SELLERS Software or Deliverables are error-free or that their use will be uninterrupted.
14. Buyer's Default
    • If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

cancel the order or suspend any further deliveries to the Buyer;

appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and

charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 10% per annum from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

• This condition applies if:

the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;

an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;

the Buyer ceases, or threatens to cease, to carry on business; or

the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

• If sub-Clause 13.2 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

15. Limitation of Liability
    • Subject to condition 7, condition 8 and condition 13, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:

any breach of these conditions;

any use made (including but not limited to modifications) or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and

any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

• Nothing in these Terms and Conditions excludes or limits the liability of the Seller:

for death or personal injury caused by the Seller’s negligence;

for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or

for fraud or fraudulent misrepresentation.

• Subject to sub-Clauses 14.2 and3:

the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and

the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

16. Confidentiality, Publications and Endorsements
    • The Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer's default;
    • The Buyer will not use, authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises, note paper, visiting cards, advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its licensor;
    • The Buyer will use its reasonable endeavours to ensure compliance with this Clause 16 by its employees, servants and agents.
    • The provisions of this Clause 16 shall survive the termination of the Contract.
17. Communications
    • All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
    • Notices shall be deemed to have been duly given:

when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or

when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or

on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or

on the tenth business day following mailing, if mailed by airmail, postage prepaid.

• All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party, including as to any contact information or addresses listed on bills of sale, invoices or other transactional documentation.

18. Force Majeure

Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party.  Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

19. Waiver

The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision.  Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

20. Severance

The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract).  The remainder of these and the Contract shall be valid and enforceable.

21. Export Control

Customer agrees that it will comply with all applicable export control regulations with respect to the Goods.

22. Law and Jurisdiction

Any dispute, controversy, difference, or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach, or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Hong Kong law). The seat of arbitration shall be in Hong Kong. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in the English language.