1. Any and all business including acceptance of orders or the provision of services undertaken by Kanoo Machinery LLC (the “Company”), is transacted subject to the conditions herein set out which shall be deemed to be incorporated in and to be a condition of any agreement between the Company and its customers. 2. No agent or employee of the Company has the authority to alter or vary these conditions except with the Company’s written confirmation signed by the authorized signatory of the Company. 3. Any tender or quotation by the Company shall unless otherwise agreed in writing be subject to acceptance by the customer within fourteen (14) days and shall be deemed withdrawn if not accepted by the customer within such period (or within such further period as may be agreed by the Company in writing). Any tender or quotation by the Company shall be subject to revision before or after acceptance in the event of changes in prices, exchange rates, or other applicable changes. On verbal acceptance by the customer of any tender or quotation, the Company will be bound by the order only when written confirmation has been given by the customer and acknowledged in writing by the Company. No credit shall be granted to the customer unless requested by the customer and agreed to specifically in writing by the Company. 4. Any information from the customer necessary to enable the Company to proceed with any order must be furnished within a reasonable time otherwise the Company may at its option cancel the order or charge the customer any additional price for the delay. In case of cancellation the customer will be liable to the Company for any loss incurred by it. By entering into the transaction the customer declares that: (i) it shall be the end-user of the goods in question and that these are destined for civilian use within the borders of the United Arab Emirates and shall not be exported to any other country or sold to any third party; (ii) it is not subject to any international trade restrictions nor that it is a front or agent for, or owned or controlled by, any party subject to any international trade restrictions which would prohibit the Company from doing business with it; and (iii) it shall comply with all applicable laws, rules, regulations, directives, ordinances, orders or statutes, including those of the UAE, the United Kingdom, the European Union and the United States including in respect of export controls and sanctions (“Laws”) and, without limiting paragraph (i), that the goods in question shall not be exported, re-exported, transmitted, transferred or diverted to any prohibited destinations (including Iran, the Government of Iran, Crimea region of Ukraine, Syria, Cuba, North Korea or any other country or territory subject to embargos, sanctions or other restrictive trade measures), prohibited parties (including parties appearing on any UK, EU, US or other applicable government authority’s sanction list, denied person’s list, entity list, unverified list or other similar list, or any parties at least 50% owned by OFAC-sanctioned entities whether individually or in aggregate) or for prohibited purposes (including any nuclear, chemical or biological weapons programs, nuclear propulsion programs, the development of ballistic missiles or unmanned aerial vehicles, or other related activities). Without limiting Company’s rights against the customer, in the event that the relevant goods are sold or transferred to a sanctioned party or to a prohibited destination (or any of the goods are located in one of these destinations), the manufacturer will not be in a position to provide any service or support for such goods, unless all required licences have been obtained and copies of those licences have been provided to the manufacturer. Without all required licences, any warranty claims in connection with such sales or placement will not be valid. If the Company or manufacturer identify any violations of such policies, action may be taken including suspending of pending or future orders, termination of the business relationship and seeking legal recourse against the customer. The customer further agrees to allow Company, the manufacturer or their third party agent to perform post shipment verifications, to cooperate with end use checks and notify Company of any changes to the certifications given in this clause. The customer represents and warrants that neither it nor any of its directors, officers, employees or representatives engaged or will engage in bribery in contravention of the Laws in connection with the order or any other agreement with the Company. The customer shall defend, indemnify and hold the Company harmless against any claims arising out of or in connection with this clause 4. 5. The Company undertakes to transfer to the customer the benefit of any manufacturer’s warranty applicable to overseas sales covering the goods sold by the Company to the extent such warranty may be so transferred and its liabilities shall be limited to this. The Company’s liability is limited to making the benefit of such rights available to the customer to the extent aforesaid. 6. The above undertaking at clause 5 is in lieu of and excludes any other conditions, guarantees or warranties express or implied, statutory or otherwise. In no event shall the Company be liable, except to the extent (if any) of its undertaking as aforesaid, for any loss or damage however caused or arising. 7. THE TOTAL LIABILITY OF THE COMPANY FOR ALL CLAIMS OF ANY KIND ARISING FROM OR RELATED TO THE FORMATION, PERFORMANCE OR BREACH OF THIS CONTRACT, OR ANY MACHINERY, GOODS OR SERVICES, SHALL NOT EXCEED THE ACTUAL CONTRACT PRICE RECEIVED BY THE COMPANY FROM THE CUSTOMER FOR THE RELEVANT MACHINERY, GOODS OR SERVICES THAT GAVE RISE TO THE CLAIM. THE COMPANY SHALL NOT BE LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGE, LOSS OF BUSINESS OR PROFIT, HOWEVER CAUSED AND SHALL NOT BE LIABLE FOR ANY DAMAGE (CONSEQUENTIAL OR OTHERWISE) ARISING FROM THE USE OR STOPPAGE OR BREAKDOWN OF ANY GOODS OR MACHINERY SOLD BY THE COMPANY OR IN ANY OTHER WAY FROM THE PERFORMANCE OF SUCH GOODS OR MACHINERY IN OPERATION. 8. If performance of any obligation accepted by the Company is prevented, delayed or interfered with as a result of war, strikes, accidents, force majeure or any other cause beyond the Company’s immediate control, the Company may at its option suspend performance or cancel the obligation and shall be paid a reasonable price for work already done. 9. Times or dates for delivery or performance are business estimates only and not contractual obligations of the Company. The Company will use its reasonable endeavors to deliver or perform by the time or date given but will not accept cancellation or be liable for any loss or damage claimed to have arisen from any delay. 10. No illustrations, drawings, specifications, dimensions, details or statements contained in any catalogues or other documents or references thereto are to be treated as contractual: they are intended as a general guide only. 11. The Company accepts no responsibility for sites or foundations or (except when supplied by the Company) for any framework or support for machinery or for compliance with statutory regulations or local bye-laws or the fulfillment of any special requirements binding on the customer. The customer is responsible for proper adaptation of any designs to the customer’s own circumstances. 12. Where the Company agrees to erect machinery, the following activities are the responsibility of the customer (at its cost) and not the Company: preparation of a proper site with suitable foundations and access thereto, storing and protecting materials supplied, the provision of all necessary lifting tackle, fuel, water, latrines, oil waste and other house stores, and sufficient labour and assistance to enable the Company to proceed with and complete the erection undertaken and to start and set to work the machinery that is supplied under these conditions of sale. 13. If erection is prevented, delayed or impeded by any act or omission of the customer or its agents, contractors and advisors (including any failure to advise the Company of special local conditions), the customer shall pay such extra charge as the Company shall reasonably require. 14. Where the Company provides any labour on the customer’s site, the customer shall indemnify the Company against any claim by third parties, or any claims whatsoever arising in respect to any liability to third parties or any liability arising under any local laws, except to the extent due to the Company’s gross negligence or wilful misconduct. 15. The Company may supply its workmen with time sheets to be submitted weekly to the customer who shall check and sign the same and all the sheets signed as correct by or on behalf of the customer shall be conclusive of the correctness of their contents. 16. Payment shall be made in local currencies in accordance with the terms agreed to by the Company. All prices are exclusive of value added tax (VAT) and any other taxes applicable in the UAE, which the customer shall additionally be liable to pay at the prevailing rate to the Company. 17. The contract price will be payable by the customer in strict accordance with the invoice and these conditions, notwithstanding any delay in delivery or any adjustments or corrections of defects which may be required to the goods or work. The Company may suspend performance of any contractual obligation to the customer so long as any account of the customer is overdue. The Company shall have the right to charge late payment interest at the judicial interest rate or as it sees fit should the customer fail to honor its payments obligations. If requested by the Company at any time, customer shall provide an irrevocable power of attorney in favour of the Company to transfer registration of relevant machinery or other goods in the event of the customer’s default. 18. Risk of damage to or loss of the machinery or goods shall pass to the customer upon delivery. However, in no case will the property in or title to any machinery or goods pass to the customer until payment has been made to the Company of the full contract price for the machinery or goods including the price for erection or other work (if any) to be done by the Company. Without limiting clause 4, unless and until title has passed to the customer, the customer shall not sell, assign, transfer, charge or pledge or create a lien over the machinery or goods or any part thereof without the Company’s prior written consent. 19. Where machinery or any other goods belonging to the customer are to be delivered to the Company for work to be carried out upon it and/or for the incorporation into it or goods to be purchased by the customer (“Returned Machinery”), then: (i) subject to paragraph (ii), the customer shall be obliged to deliver the Returned Machinery at the customer’s own cost and risk to the Company’s premises and to promptly collect the Returned Machinery after completion of the relevant work; (ii) if the Company has agreed (upon written request of the customer) to collect and re-deliver the Returned Machinery, then (unless otherwise agreed in writing) the transport of the Returned Machinery to and from the Company’s premises including any packing and loading shall be carried out at the cost and risk of the customer; (iii) the customer shall bear all risk of damage to or loss of the Returned Machinery during the period that the Returned Machinery is at the Company’s premises; (iv) no insurance exists or will be effected by the Company in respect of such Returned Machinery (except upon express instructions given in writing by the customer and accepted expressly in writing by Company) and the customer shall maintain its own insurance coverage for the Returned Machinery including, but not limited to, circumstances of fire,flood, storm and theft; and (v) if the customer fails to collect the Returned Machinery upon written notice to do so, the Company shall be entitled to claim storage charges for the storage on the Company’s premises or to have the Returned Machinery stored otherwise at the cost and risk of the customer. Further, in case of default by the customer (including, but not limited to, non-payment or failure to collect the Returned Machinery), the Company (whether with or without previous notice) may retain possession of such Returned Machinery and is in such circumstances, irrevocably authorized by the customer to deal with and/or dispose of it in such manner and for such amount as it deems appropriate and to utilize the proceeds of any such disposal to settle all outstanding payments due to the Company including costs of storage, disposal and administrative expenses. The Company also reserves the right to charge the customer for storage and any costs incurred in the aforementioned process. 20. In case of default by the customer after delivery of machinery or any other goods and before the goods have become the customer’s property and/or registered in the customer’s name, the customer shall be bound, at all the customer’s expense, to redeliver the goods to the Company. In case of default by the customer where the machinery or goods have been registered in the customer’s name, the customer shall take all necessary action to deregister machinery or goods to enable them to be re-registered in the name of the Company (or a third party). In all such cases, the Company may (whether with or without previous notice) itself retake possession of the goods and the Company is in such circumstance irrevocably authorized by the customer to enter the premises on which the goods situated and to dismantle and remove the goods at the customer’s expense. 21. All goods and work shall be deemed to have been accepted by the customer as in complete conformity with the contract unless within a reasonable time (no later than three (3) days) after actual receipt by the customer of the goods or (where the Company is responsible for erection) after the machinery is ready for starting up written notice is given to the Company specifying grounds for the customer’s dissatisfaction. 22. These conditions shall apply to the transaction between the customer and the Company to the exclusion of any other terms and conditions on which the Company’s quotation is accepted or purported to be accepted by the customer. Any terms and conditions stated in any purchase order or other document received from the customer shall not apply and no conduct by the Company or any of its employees, agents or servants shall be deemed to be or constitute acceptance or purported to be acceptance of any conditions put forward by the customer. 23. All references to time shall be construed according to the Gregorian calendar. 24. These conditions, all orders placed subject to these conditions and any dispute or claim arising out of or in connection with these conditions or such orders shall be governed by and construed in accordance with the laws of the Dubai International Financial Centre (“DIFC”) and subject to the exclusive jurisdiction of the Courts of the DIFC (with any claim for an amount less than AED 500,000, to be brought before the Small Claims Tribunal of the DIFC Courts).
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