Terms & Conditions

TERMS & CONDITIONS

STANDARD TERMS AND CONDITIONS FOR SUPPLY OF GOODS & SERVICES BY XTRON INTERNATIONAL FZC

1. Interpretation

1.1 Definitions:

Business Day: A day (other than a Friday, Saturday or public holiday) when banks in United Arab Emirates are open for business.

Conditions: The terms and conditions set out in this document.

Contract: The contract between Xtron and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: The person or firm who purchases the Goods from Xtron.

Goods: The goods (or any part of them) set out in the Order.

Intellectual Property Rights: Patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order: The Customer's order for the Goods, as set out in the Customer's purchase order form.

Xtron International FZC registered in Ajman Free Zone with Licence No. 24645 in United Arab Emirates

Specification: Any specification for the Goods, including any related drawings, that is agreed in writing by the Customer and Xtron.

1.2 Interpretation:

(a) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(b) 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 Third Party Purchaser has the meaning given in clause 6.1, but where the context so require, shall also include any end user of the Product.

2. Basis of contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer 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 Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.

2.3 The Order shall only be deemed to be accepted when Xtron issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.5 Any samples, drawings, descriptive matter or advertising produced by Xtron and any descriptions or illustrations contained in Xtron's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6 A quotation for the Goods given by Xtron shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue (unless otherwise stated on the quotation).

3. Goods

3.1 The Goods are described in Xtron's catalogue as modified by any applicable Specification.

3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Xtron 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 Xtron in connection with any claim made against Xtron for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Xtron's use of the Specification. This clause 3.2 shall survive termination of the Contract.

3.3 Xtron reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

3.4 All Intellectual Property Rights in or arising out of or in connection with the Goods (other than Intellectual Property Rights in any materials provided by the Customer or the Software Plug In) shall be owned by Xtron and Xtron hereby grants to the Customer a non-exclusive licence to use the Intellectual Property Rights in accordance with the terms of this agreement.

4. Delivery

4.1 Xtron shall ensure that:

(a) Each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Xtron reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(b) If Xtron requires the Customer to return any packaging materials to Xtron, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Xtron shall reasonably request. Returns of packaging materials shall be at Xtron's expense.

4.2 The Goods shall be delivered by such method as set out in the Order being either:

(a) Xtron shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Xtron notifies the Customer that the Goods are ready.

(b) The Customer shall collect the Goods from Xtron's premises at Ajman Free Zone C1 Tower or such other location as may be advised by Xtron prior to delivery (Delivery Location) within seven Business Days of Rolec notifying the Customer that the Goods are ready.

4.3 Delivery is completed on the completion of loading of the Goods at the relevant Delivery Location.

4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Xtron shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Xtron with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 If Xtron fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Xtron 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 Customer's failure to provide Xtron with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If the Customer fails to accept delivery of the Goods within seven Business Days of Xtron notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Xtron's failure to comply with its obligations under the Contract:

(a) Delivery of the Goods shall be deemed to have been completed at 5:30 pm on the seventh Business Day after the day on which Xtron notified the Customer that the Goods were ready; and

(b) Xtron shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7 If ten Business Days after the day on which Xtron notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, Xtron may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

4.8 Xtron may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. Quality and Warranty

5.1 Xtron warrants that on delivery, and for a period of 12 months from the date of delivery, unless such period is extended by written agreement in the Order confirmation (warranty period), the Goods shall (the Warranty):

(a) Conform in all material respects with the Specification; and

(b) Be free from material defects in design, material and workmanship; and

5.2 Xtron offers no warranty for the Software Plug-in.

5.3 Subject to clause 5.4, if:

(a) The Customer gives notice in writing to Xtron during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

(b) Xtron is given a reasonable opportunity of examining such Goods; and

Xtron shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.4 Xtron shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:

(a) The Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;

(b) The defect arises because the Customer failed to follow Xtron's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(d) The Customer alters or repairs such Goods without the written consent of Xtron;

(e) The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(f) The Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.5 Except as provided in this clause 5, Xtron shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Xtron.

6. Conditions of Resale

6.1 If the Customer resells the Goods to a third party (Third Party Purchaser) the Customer shall not make any statement as to the quality or manufacture of the Goods other than as contained in the literature provided by Xtron or as otherwise agreed in writing.

6.2 Where the Goods form part of a packaged product, the Customer warrants to only resell the Goods as such a packaged product.

6.3 The Customer shall be responsible for dealing with Third Party Purchaser complaints and concerns about the Goods and shall provide to Third Party Purchasers, for the duration of any Warranty, a free aftersales care service (After Sales Care Service).

6.4 If, as part of the After Sales Care Service, the Customer ascertains that, on the balance of probabilities, any Goods sold to a Third Party appear to be in breach of Warranty, the Customer shall:

(a) Contact Xtron as soon as reasonably practicable, and in any event within seven days of becoming aware;

(b) Provide such information to Xtron as Xtron reasonably requires;

(c) Co-operate with Xtron to ascertain the most appropriate solution to the defect, taking into account the nature of the defect, and:

(i) Where appropriate shall carry out (or instruct such third parties to carry out) such minor repairs or replacements as directed in writing by Xtron; and/or

(ii) Where necessary, allow Xtron to examine the Goods in accordance with clause 5.3.

In the event the Goods are deemed to defective, Xtron shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

6.5 Xtron shall not be responsible for defects resulting from incorrect installation or use by the Third Party Purchaser.

6.6 In the event that Xtron:

(a) Is directly contacted by a purchaser of Goods sold by the Customer; and/or

(b) Takes action which it deems (acting reasonably) immediately necessary to prevent damage, whether to its brand or to any Goods sold, or the Customer breaches its obligations under this clause 6, the Customer shall indemnify and hold Xtron Harmless against on a full indemnity basis any loss it suffers (including management time).

6.7 Nothing in this clause 6, shall limit any statutory rights the Third Party Purchaser has, whether against Xtron or otherwise.

7. End User Licence Agreement and Software Plug-in

7.1 The Customer acknowledges that the Goods may contain functionality hosted by a Software Provider. Further details are as described in Xtron’s catalogue from time to time.

7.2 It may be necessary or desirable for the Third Party Purchaser to enter into a licence agreement between the Software Provider and the Third Party Purchaser to ensure full functionality of any Software Plug-in.

7.3 The Customer undertakes and agrees with the Company to ensure that Third Party Purchasers are aware of and accept the terms and conditions of any end user licence agreement (or similar) required by the Software Provider.

7.4 To the fullest extent permitted by law, Xtron shall have no liability towards the Third Party Purchaser for the Software Plug-in, save to the extent it relates to hardware in the Goods.

7.5 The Customer undertakes to ensure that any problems or concerns in respect of the Software Plug-in are directed to the Software Provider and not to Xtron, and the provisions of clause 6.6 shall apply as if set out in this clause 7

7.6 It may be necessary or desirable for the Third Party Purchaser to enter into a direct agreement with Xtron, and the provisions of this clause 7 shall apply accordingly.

8. Title and risk

8.1 The risk in the Goods shall pass to the Customer on completion of delivery.

8.2 Title to the Goods shall not pass to the Customer until the earlier of:

(a) Xtron receives payment in full (in cash or cleared funds) for the Goods, in which case title to the Goods shall pass at the time of payment; and

(b) The Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 8.4.

8.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) Store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Xtron's property;

(b) Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) Notify Xtron immediately if it becomes subject to any of the events listed in clause 11.1; and

(e) Give Xtron such information relating to the Goods as Xtron may require from time to time.

8.4 Subject to clause 8.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Xtron receives payment for the Goods. However, if the Customer resells the Goods before that time:

(a) It does so as principal and not as Xtron’s agent; and

(b) Title to the Goods shall pass from Xtron to the Customer immediately before the time at which resale by the Customer occurs.

8.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 11.1, then, without limiting any other right or remedy Xtron may have:

(a) The Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

(b) Xtron may at any time:

(i) Require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

(ii) If the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

9. Price and payment

9.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Xtron's published price list in force as at the date of delivery.

9.2 Xtron may, by giving notice to the Customer at any time up to ten Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a) Any factor beyond Xtron's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) Any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

(c) Any delay caused by any instructions of the Customer or failure of the Customer to give Xtron adequate or accurate information or instructions.

9.3 The price of the Goods:

(a) Excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Xtron at the prevailing rate, subject to the receipt of a valid VAT invoice; and

(b) Excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

9.4 Xtron may invoice the Customer for the Goods on or at any time after the completion of delivery.

9.5 Unless agreed between the parties, the Customer shall pay for the Goods in full and in cleared funds at the time of placing the order. Payment shall be made to the bank account or by such means as nominated in writing by Xtron. Time for payment is of the essence.

9.6 If the Customer fails to make any payment due to Xtron under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclay Bank Plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

9.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Xtron may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Xtron to the Customer.

10. Compliance with laws and policies

10.1 The Customer shall at its own expense comply with all laws and regulations relating to its activities under this agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.

10.2 The Customer shall comply with the Customer’s mandatory polices as may be updated them from time to time, including but not limited to anti-bribery and corruption.

10.3 Each party shall comply with all applicable requirements of Data Protection Legislation.

10.4 In the event the Customer breaches this clause 10 the Customer shall indemnify Xtron 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 Xtron in connection with any claim made against Xtron or loss suffered.

11. Termination

11.1 Without limiting its other rights or remedies, Xtron may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a) The Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within seven days of that party being notified in writing to do so;

(b) The Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

(c) The Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) The Customer's financial position deteriorates to such an extent that in Xtron's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

11.2 Without limiting its other rights or remedies, Xtron may suspend provision of the Goods under the Contract or any other contract between the Customer and Xtron if the Customer becomes subject to any of the events listed in clause 11.1(a) to clause 11.1(d), or Xtron reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

11.3 Without limiting its other rights or remedies, Xtron may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

11.4 On termination of the Contract for any reason the Customer shall immediately pay to Xtron all of Xtron's outstanding unpaid invoices and interest.

11.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.

11.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

12. Limitation of liability

12.1 Nothing in these Conditions shall limit or exclude Xtron's liability for:

(a) Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) Fraud or fraudulent misrepresentation;

(e) Any matter in respect of which it would be unlawful for Xtron to exclude or restrict liability.

12.2 Subject to clause 12.1:

(a) Xtron shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

(b) Xtron's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.

13. Force majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this Contract by giving seven days written notice to the affected party.

14. General

14.1 Assignment and other dealings.

(a) Xtron may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

(b) The Customer may not assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Xtron.

14.2 Entire agreement.

(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.

14.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

14.6 Third party rights. No one other than a party to this Contract shall have any right to enforce any of its terms.

14.7 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of United Arab Emirates.

14.8 Jurisdiction. Each party irrevocably agrees that the courts of United Arab Emirates shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

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