- Definitions
“MAXELL INDUSTRIES”, means a legal entity providing Products and/or Services under the Contract.
“Contract”, means the agreement (including these General Terms and Conditions) made in writing (e.g. via an offer, purchase order and order acknowledgment) between the Purchaser and MAXELL INDUSTRIES for the provision of Products and/or Services.
“Contract Price”, means the Price for the Products and/or Services set forth in the Contract.
“Intellectual Property Rights”, means all patents, copyrights, design rights, trademarks, trade names, service marks, logos, trade secrets, domain names, know-how and business processes and methods, confidential information and any other proprietary rights or form of intellectual property (whether registered or unregistered) capable of protection under the law, and including applications for the grant of any such rights.
“Products”, means the products, equipment, parts or other goods (including software) that MAXELL INDUSTRIES has agreed to supply to the Purchaser under the Contract.
“Purchaser”, means the entity to which MAXELL INDUSTRIES is providing Products and/or Services under the Contract.
“Services” means the services that MAXELL INDUSTRIES has agreed to provide to the Purchaser under the Contract.
“Third Party Products”, means any products that are not produced by MAXELL INDUSTRIES, but have been supplied to the Purchaser pursuant to the Contract.
2. Contract Price and Payment
2.1. Unless otherwise agreed in the Contract, all prices shall be Ex-works, unless otherwise specified.
2.2. The Contract Price does not include, and the Purchaser shall be responsible for all, taxes, duties, fees or other charges of any nature including import, property, sales, stamp, turnover, use or value-added taxes and duties. If the Purchaser deducts or withholds such taxes or duties, the Purchaser shall pay additional amounts in order for MAXELL INDUSTRIES to receive the full Contract Price.
2.3. Payment shall be made in full, free and clear of all deductions, counterclaims, withholdings or offsets, within the time period mentioned in the official approved quote. The Purchaser shall pay a penalty on overdue payments from the maturity date until the actual date of payment at the rate of 1.5% per month or the maximum amount permitted by law, whichever is lower.
2.4. All travel expenses incurred in the provision of the Services shall be for the account of the Purchaser. Travel expenses include:
(a) fares for the journey by rail, sea, air, and road;
(b) carriage, freight and customs duties as well as insurance due in connection with personal effects, instruments and tools required for the Services, including necessary cost of overweight on air freight; and
(c) all out of pocket expenses incurred by MAXELL INDUSTRIES for the Services ordered by the Purchaser, such as internet use, facsimile and telephone, and
(d) Visa expenses, if applicable.
3. Delivery, Risk, Title and Performance of the Services
3.1. Unless otherwise provided in the Contract, the Products shall be delivered in accordance with the terms specified in the quote. Partial deliveries are allowed. Any date for delivery stipulated or quoted shall be deemed to be an estimate only. The actual delivery period may vary based on the final approval of drawings, technical datasheets and clearing of commercial complications. If any Products cannot be delivered when ready, MAXELL INDUSTRIES may deliver the Products to a storage facility, if the payment has been cleared, and the risk of loss to the Products shall immediately pass to the Purchaser. The Purchaser shall be liable to pay any direct and indirect cost in relation to the storage. The Products shall be deemed to have been delivered when placed in storage. If the Purchaser is not taking the products even after readiness, Maxell Industries may deliver the products to the storage facility of the Purchaser and the transportation charges will be invoiced to the Purchaser as well. If the payments are not cleared, Maxell Industries reserves the right to retain the products and store them and invoice the storage charges to the customer at the rate of 1.0% (of the Order value) per week (excl. VAT).
3.2. The Purchaser shall be deemed to have accepted the Products and Services as being in compliance with the Contract, unless the Purchaser has notified MAXELL INDUSTRIES in writing of any shortages or damage within one (1) day from delivery of the Products or three (3) days from performance of the Services.
3.3. Title to the Products shall transfer at the time of delivery. MAXELL INDUSTRIES shall retain a security interest in and lieu on the Products until the Contract Price has been paid in full.
3.4. In respect of the Services to be performed by MAXELL INDUSTRIES, the Purchaser shall be responsible for and shall provide at its own cost and risk the following:
(a) free and safe access to the work site, including all necessary visas, permits, consents, licenses and exemptions necessary for MAXELL INDUSTRIES to conduct the Services at the work site;
(b) safe working conditions at the work site;
(c) all health, safety, security and environmental requirements applicable at the work site;
(d) access to medical facilities and resources at the work site;
(e) necessary fuel, lubricants, water, electricity, compressed air and cleaning facilities; and
(f) air-conditioned facilities with potable water, including canteen facilities.
3.5. If in MAXELL INDUSTRIES’s opinion the health, safety or security of its personnel at the work site is at risk, MAXELL INDUSTRIES may suspend the Services and evacuate its personnel from the work site. Any such event shall be considered an excusable event without any liability on MAXELL INDUSTRIES.
4. Warranty
4.1. MAXELL INDUSTRIES warrants that the Products shall be free from defects in title, material and workmanship and that the Services shall be performed with due skill and care. A Product comprising software, will substantially conform to published specifications and the media upon which the software is provided will be free from defects in materials and workmanship.
4.2. Unless otherwise agreed the following warranty periods shall apply:
(a) Products (that are not software) – 12 months from date of delivery;
(b) Products (that are software) – 90 days from delivery;
(c) Services – 90 days from date of performance of the Services;
(d) Third Party Products – warranties are transferred from the third parties to the Purchaser to the extent MAXELL INDUSTRIES has the right to transfer them.
(e) Bought out products back to back warranty as per OEM; and
(f) In case of Outstation products, bench warranty applies (i.e. the Purchaser has to send the material to the factory without any defects to the core products to claim the bench warranty and any direct or indirect expenses incurred by way shall be borne by the Purchaser); and
(g) Extended warranty, if required, can be provided with additional charges, as applicable.
4.3. If the Products or Services do not meet the warranties set forth in Clause 4.1, the Purchaser shall without delay inform MAXELL INDUSTRIES in writing prior to the expiration of the warranty period. MAXELL INDUSTRIES shall at its option repair or replace the defective Product and/or re-perform the defective Services. The Purchaser agrees to bear all the cost of access, including, but not limited to the removal and replacement of systems, structures, dismantling, decontamination, reinstallation and transportation of Products to MAXELL INDUSTRIES and back to the Purchaser. All warranties for any Products repaired or replaced or Services re-performed during the warranty period will expire at the same time as the original warranty period.
4.4. MAXELL INDUSTRIES shall not be liable for any defect attributable to:
(a) normal wear and tear,
(b) any storage, use, service or operation of the Products which is not in conformity with manuals, instructions or specifications provided by MAXELL INDUSTRIES,
(c) damage caused by any item or service not provided by MAXELL INDUSTRIES, and
(d) any modification or alteration of a Product.
4.5. Clause 4 sets forth the only warranties applicable to the Products and Services and is in lieu of all other warranties, guarantees, obligations and liabilities, expressed or implied. The remedies in this Clause 4 are the Purchaser’s only remedies for breach of warranty and no warranty or condition of merchantability or fitness for a particular purpose applies.
5. Confidentiality
Each Party undertakes that it will keep strictly confidential all the other Party’s confidential and commercially sensitive information of which it becomes aware in the course of execution of the Contract. This confidentiality commitment shall not apply to information which (a) is already known to the recipient or is publicly available, (b) is legally disclosed to the recipient by a third party, (c) is required to be disclosed by law or public order, or (d) is permitted to be used or disclosed by the Contract.
6. Limitation of liability
6.1. In no event, whether as a result of breach of contract, breach of warranty, tort or otherwise shall MAXELL INDUSTRIES be liable for any indirect, contingent, special, consequential or incidental damages however caused or arising, nor for losses or damages caused by reason of unavailability of the Products or Services, shutdowns, loss of use, loss of profit or revenue, loss of reputation, loss of data, cost of purchased or replacement power, cost of substituted equipment, pollution remediation cost, claims from the Purchaser’s customers and stakeholders, damage to any equipment and property other than the Products and cost for additional tests.
6.2.MAXELL INDUSTRIES shall not be liable for any products or service work acquired or performed by the Purchaser or any third party, even if carried out with the assistance or supervision of MAXELL INDUSTRIES’s personnel.
7. Intellectual Property
7.1. Each party shall retain ownership of all Intellectual Property Rights it had prior to the Contract (including without limitation all copyright and proprietary rights in software supplied by MAXELL INDUSTRIES in any format, including as embedded in any other product). Nothing in the Contract shall have the effect of transferring any Intellectual Property Rights from MAXELL INDUSTRIES to the Purchaser or any third party. All new Intellectual Property Rights created or conceived by MAXELL INDUSTRIES in the performance of the Contract shall be owned exclusively by MAXELL INDUSTRIES.
7.2. Any Intellectual Property Rights in software that comprise Products or a part of a Product is licensed and not sold to the Purchaser (in case of applicable circumstances)
7.3. Subject to the terms of any end user license agreement entered into with the Purchaser by MAXELL INDUSTRIES in respect of relevant Products, MAXELL INDUSTRIES grants to the Purchaser a non-exclusive, non-transferable license to use Intellectual Property Rights in software owned by MAXELL INDUSTRIES that comprise Products or a part of a Product for the Purchaser’s own use.
7.4. For Third Party Products (or any part thereof) that comprise software, which software is licensed by a third party to MAXELL INDUSTRIES, the Purchaser’s rights and responsibilities in respect of such Third Party Products shall be governed by the terms of such license.
8. Variations and Change of Law
8.1. Each party may at any time propose changes in the schedule or the scope of Products or Services. MAXELL INDUSTRIES is not obliged to proceed with any changes until such changes have been agreed upon in writing, including an adjustment to the Contract Price. Any changes to the Contract shall be agreed upon in writing by the authorized representatives of the parties.
8.2. In the event of a change in any applicable laws, rules, codes, regulations, sanctions, site-specific requirements or procedures which comes into effect after the date of the last submission of MAXELL INDUSTRIES’s offer, and such change has an impact on MAXELL INDUSTRIES’s performance under the Contract, MAXELL INDUSTRIES shall inform the Purchaser in writing of such impact and the scope, Contract Price, schedule or other provisions of the Contract will be adjusted in order to reflect the additional cost and obligations incurred by MAXELL INDUSTRIES.
9. Export Control
9.1. The Purchaser shall comply with all applicable import, export control and economic sanctions laws and regulations. The Purchaser shall not, directly or indirectly, sell, provide, export, re-export, transfer, divert, loan, lease, consign, or otherwise dispose of any Product, Services, material, software including source code, or technology to or via any person, entity, or destination, specifically to any denied or restricted party, or for any activity or end-use restricted by any applicable laws or regulations or to any activities in relation to nuclear or military. The Purchaser shall undertake that all third parties receiving such supply from the Purchaser comply with this requirement.
9.2. If requested, the Purchaser shall provide MAXELL INDUSTRIES with a certificate signed by the Purchaser’s authorized representative confirming that the end-user shall comply with Clause 9.
9.3. Any breach by the Purchaser or any other party for whom the Purchaser is liable (which shall, without limitation, include an end-user) of any of the provisions in Clause 9, shall be deemed a material breach of the Contract by the Purchaser, and shall entitle MAXELL INDUSTRIES to terminate the Contract, without the need to obtain a court order or arbitration award forthwith by notice to the Purchaser. In the event of such termination or otherwise, the Purchaser shall compensate MAXELL INDUSTRIES for any damage and loss sustained as a result of such breach of the Contract and shall keep MAXELL INDUSTRIES, and all of its affiliates, and their respective officers, directors, and employees indemnified against any claims and liabilities arising out of such breach.
10. Integrity
10.1. The Purchaser hereby warrants that it will comply with all applicable laws and that it will not make any payment or commitment contrary to any applicable laws. The Purchaser further agrees to perform its obligations under the Contract with substantially similar standards of ethical behavior as set forth in the MAXELL INDUSTRIES Code of Conduct.
11. Force Majeure
11.1. Neither party shall be responsible for any failure to perform its obligations under the Contract to the extent such failure is caused by or arising from an event beyond its reasonable control, including but not limited to acts of God, fires, severe weather conditions, earthquakes, strikes or labor disturbances, sanctions, terrorism and severe threat of terrorism, epidemics, floods, war, civil unrest, acts of governmental authorities, accidents, acts of military authorities, embargoes and public disorder (“Force Majeure”).
11.2. MAXELL INDUSTRIES shall be entitled to be reimbursed by the Purchaser for all costs and expenses reasonably incurred by MAXELL INDUSTRIES as a result of a Force Majeure event.
12. Suspension and Termination
12.1. MAXELL INDUSTRIES shall have the right to suspend for such period as it considers appropriate and/or immediately terminate the Contract, without the need to obtain a court order or arbitration award, by notice to the Purchaser if, in the reasonable opinion of MAXELL INDUSTRIES, any of the following events arise:
(a) in the event the Purchaser fails to comply with any material obligation under the Contract (including failure to pay the Contract Price when due);
(b) if the Purchaser becomes insolvent, commences proceedings for winding up or bankruptcy, enters into an arrangement with its creditors or files for the protection of creditors under any bankruptcy or insolvency laws;
(c) if the control or ownership of the Purchaser materially changes
(d) if a Force Majeure event is continuing for more than three (3) months; or
(e) if any representation or warranty made by the Purchaser herein or in any document provided to MAXELL INDUSTRIES proves to be incorrect.
12.2. In the event MAXELL INDUSTRIES suspends performance under the Contract in accordance with Clause 12.1, the Purchaser shall be liable to reimburse MAXELL INDUSTRIES for any cost and expense incurred by MAXELL INDUSTRIES as a result of the suspension (including demobilization and remobilization cost) and the delivery dates and contractual milestones shall be equally extended.
12.3. In the event MAXELL INDUSTRIES terminates the Contract in accordance with clause 12.1. the Purchaser shall pay MAXELL INDUSTRIES for all Products and Services completed or partially completed before the date of the termination. The Purchaser shall further be liable to reimburse MAXELL INDUSTRIES for all costs, expenses and losses reasonably incurred as a result of the termination including the costs incurred for the allocated raw materials and spare parts for the order processing.
13. Use of data
13.1. The Purchaser hereby grants to MAXELL INDUSTRIES the right to use, free of charge, all information and data generated or gathered by any embedded sensors and SCADA devices in the Products delivered by MAXELL INDUSTRIES. The right to use such data and information includes, but is not limited to, the right to develop MAXELL INDUSTRIES products (including software) and services.
13.2. MAXELL INDUSTRIES shall have the right to transfer such information and data to any legal entity belonging to the MAXELL INDUSTRIES group of companies or to third parties who act for or on MAXELL INDUSTRIES’s behalf.
14. Indemnity
14.1. The Purchaser shall indemnify and hold harmless MAXELL INDUSTRIES against any and all losses, claims, expenses liabilities and damages for:
(a) personal injury or death to any employee of the Purchaser or any third party; and
(b) loss or damage to any property of the Purchaser or any third party, except in the event such personal injury, death, loss or damage is a direct result of MAXELL INDUSTRIES’s gross negligence.
15. Governing Law and Dispute Resolution
15.1. The Contract shall be governed by and interpreted in accordance with the laws in force in the principal place of business of the MAXELL INDUSTRIES entity supplying the Products or providing the Service
15.2. In the event of a dispute arising out of or relating to this Contract, including any question regarding its existence, validity or termination, the parties shall first seek settlement of that dispute by mediation at our office premises, in accordance with the Mediation Rules of the DIFC-LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause.
15.3. If the dispute is not settled by mediation within sixty (60) days of the commencement of the mediation, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the Arbitration Rules of the DIFC-LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause.
15.4. The language to be used in the mediation and in the arbitration shall be English. In any arbitration commenced pursuant to this clause, the number of arbitrators shall be one and the seat, or legal place, of arbitration shall be Dubai, United Arab Emirates. The jurisdiction for legal matters shall always remain Dubai, United Arab Emirates.
16. Miscellaneous
16.1. All notices under the Contract shall be made in writing in English language.
16.2. The Purchaser shall immediately notify MAXELL INDUSTRIES of any change in the ownership or control of the Purchaser.
16.3. The Contract constitutes the entire agreement between the parties and supersedes all prior agreements and understandings between the parties in relation thereto.
16.4. The Purchaser shall not be entitled to assign or novate its rights and obligations under the Contract without the prior written consent of MAXELL INDUSTRIES.
16.5. MAXELL INDUSTRIES is an independent contractor and shall have complete charge of selection and qualification of subcontractors and its personnel to perform any obligations under this Contract.