Northcape Global Terms and Conditions of Sale

Northcape Global Terms and Conditions of Sale

These Global Terms and Conditions of Sale (“Terms”) apply to the purchase of services (the “Services”) by the client (“Client”) from the supplier (“Supplier”), collectively “the Parties”, each of which is identified in the accompanying quotations, proposals, contracts, order acknowledgements, or invoices (the “Sales Confirmation”).

These Terms and the Sales Confirmation comprise the entire agreement between the parties (collectively, the “Agreement”). Client accepts these Terms by signing and returning Supplier’s quotation or contract, by sending a purchase order in response to the quotation, or by Client’s instructions to Supplier to supply the services.

No terms, conditions or warranties other than those identified in the Agreement and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions whether contained in Client’s purchase order or shipping release forms, or elsewhere, shall be binding on Supplier unless hereafter made in writing and signed by Supplier’s authorized representative. Client is hereby notified of Supplier’s express rejection of any terms inconsistent with this Agreement or to any other terms proposed by Client. Neither Supplier’s subsequent lack of objection to any terms, nor the delivery of the Services, shall constitute an agreement by Supplier to any terms.

Operative Provisions

1. Supply of the Services – Qualifications of the Supplier

1.1 The Supplier shall provide the Services to the Client, subject to the terms agreed in this contract.

1.2 The Supplier represents that it has all necessary capacity and qualifications to supply the Services.

1.3 The Services shall be provided subject to the terms of this contract and in accordance with the Sales Confirmation, and otherwise in accordance with the Supplier’s current brochure or other published literature relating to the Services from time to time.

1.4 The Supplier may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.

1.5 The Client may order additional Services or ask for amendments/alterations of Services already agreed with the Supplier, or give instructions to the Supplier which result in an amendment, alteration, reduction or extension of the Services already agreed with the Supplier. In such case, the amended, altered, reduced or extended services must be expressly specified in writing and the possible impact of the Client’s orders or instructions on the fees and expenses to be paid to the Supplier must be expressly agreed by and between the Parties in writing before the services are performed.

2. Payment of fees

2.1 The Client shall pay the fees and expenses agreed with the Supplier, as specified in the Sales Confirmation, and any additional sums which are agreed between the Supplier and the Client for the provision of the service or which, in the Supplier’s sole discretion, are required as a result of the Client’s additional or amended instructions or lack of instructions, the inaccuracy or inappropriateness of any material provided by the Client or any other cause attributable to the Client.

2.2 The Supplier shall be entitled to invoice the Client following the end of each month in which the service is provided, or at other times agreed with the Client.

2.3 The Supplier’s standard charges and any additional sums payable shall be paid by the Client (together with any applicable value added tax, and without any set-off or other deduction) within 30 days of the date of the Supplier’s invoice.

2.4 Unless specified in the Sales Confirmation, all charges quoted to the Client for the provision of the service are exclusive of any value-added tax, for which the Client shall be additionally liable at the applicable rate from time to time.

3. Late payment and interest

If payment is not made on the due date, the Supplier shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 5% per annum or at the legal maximum rate whichever is lower.

4. Warranties and liability

4.1 The Supplier warrants to the Client that the service will be provided using such care and skills as is customary for the provision of similar services in the Client’s country. Where the Supplier supplies in connection with the provision of the service any goods supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.

4.2 The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client, provided the Supplier has duly notified the Client within 60 days of receipt of such material or instructions.

4.3 Except in respect of death or personal injury caused by the Supplier’s negligence, the Supplier shall not be liable to the Client for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the service or their use by the Client, and the entire liability of the Supplier under or in connection with the contract shall not exceed the amount of the Supplier’s fees for the provision of the service.

5. Term, termination and consequences of termination

5.1 The Supplier may forthwith terminate this contract by giving written notice to the Client, if the latter fails to pay any sum payable by it under this contract within 7 days of the due date for payment.

5.2 Either party may (without limiting any other remedy) at any time terminate the contract by giving written notice to the other if the other commits any breach of this contract and (if capable of remedy) fails to remedy the breach within 10 days after being required by written notice to do so, or if the other goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.

For the purposes of the present sub-clause, a breach of any provision of this contract shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance.

5.3 The termination of this contract for any reason shall not affect:

5.3.1 Either party’s accrued rights, remedies or liabilities including payments due at the effective date of termination; or

5.3.2 The coming into force or the continuance in force of any provision of this contract which is expressly or by implication intended to come into or continue in force on or after termination.

6. Confidentiality

6.1 Both parties understand and acknowledge that, by virtue of the present contract, they may both receive or become aware of information belonging or relating to the other party, its business, business plans, affairs or activities, which information is confidential and proprietary to the other party and/or its Suppliers and/or customers and in respect of which they are bound by a strict duty of confidence (“Confidential Information”).

6.2 In consideration of such Confidential Information being disclosed or otherwise made available to either party for the purposes of the performance of the present contract, both parties hereby undertake that they will not at any time, either before or after the termination of the present contract, and either directly or indirectly, disclose, divulge or make unauthorized use of any Confidential Information, except to the extent to which such Confidential Information:

6.2.1 Is publicly known at the time of its disclosure or being lawfully made available to them;

6.2.2 After such disclosure or being made available to them, becomes publicly known otherwise than through a breach of this undertaking;

6.2.3 Is required by law, regulation or order of a competent authority (including any regulatory or governmental body or securities exchange) to be disclosed by one of the Parties, provided that, where practicable, the other party is given reasonable advance notice of the intended disclosure.

6.3 Upon the earlier of a request from the other party or the termination of this contract, each party shall return the other all documents or records in any medium or format containing any Confidential Information which are in its possession or control and will not retain any copies of them.

6.4 This undertaking, and the obligations contained herein, will continue without limit of period.

7. Force majeure – excuse for non-performance

7.1 “Force majeure” means war, emergency, accident, fire, earthquake, flood, storm, industrial strike or other impediment which the affected party proves was beyond its control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of this contract or to have avoided or overcome it or its consequences.

7.2 A party affected by force majeure shall not be deemed to be in breach of this contract, or otherwise be liable to the other, by reason of any delay in performance, or the non-performance, of any of its obligations under this contract to the extent that the delay or non-performance is due to any force majeure of which it has notified the other party in accordance with Article 7.3. The time for performance of that obligation shall be extended accordingly, subject to Article 7.4.

7.3 If any force majeure occurs in relation to either party which affects or is likely to affect the performance of any of its obligations under this contract, it shall notify the other party within a reasonable time as to the nature and extent of the circumstances in question and their effect on its ability to perform.

7.4 If the performance by either party of any of its obligations under this contract is prevented or delayed by force majeure for a continuous period in excess of three months, the Parties shall negotiate in good faith, and use their best endeavours to agree upon such amendments to this contract or alternative arrangements as may be fair and reasonable with a view to alleviating its effects, but if they do not agree upon such amendments or arrangements within a further period of 30 days, the other party shall be entitled to terminate this contract by giving written notice to the party affected by the force majeure.

8. Change of circumstances (hardship)

8.1 Where the performance of this contract becomes more onerous for one of the Parties, that party is nevertheless bound to perform its obligations subject to the following provisions on change of circumstances (hardship).

8.2 If, however, after the time of conclusion of this contract, events occur which have not been contemplated by the Parties and which fundamentally alter the equilibrium of the present contract, thereby placing an excessive burden on one of the Parties in the performance of its contractual obligations (hardship), that party shall be entitled to request revision of this contract provided that:

8.2.1 The events could not reasonably have been taken into account by the affected party at the time of conclusion of this contract;

8.2.2 The events are beyond the control of the affected party; and

8.2.3 The risk of the events is not one which, according to this contract, the party affected should be required to bear.

8.3 Each party shall in good faith consider any proposed revision seriously put forward by the other party in the interests of the relationship between the Parties.

9. No partnership or agency

Nothing in this contract shall (i) be deemed to constitute a partnership in law between the Parties, (ii) constitute either party the agent of the other for any purpose or (iii) entitle either party to commit or bind the other (or any member of its respective group) in any manner.

10. Notices

Any notice under this contract shall be in writing (which may include e-mail) and may be served by leaving it or sending it to the address of the other party as specified in the Sales Confirmation in a manner that ensures receipt of the notice can be proved.

11. Entire agreement

11.1 This contract sets out the entire agreement between the Parties. Neither party has entered into this contract in reliance upon any representation, warranty or undertaking of the other party that is not expressly set out or referred to in this contract. This Article shall not exclude any liability for fraudulent misrepresentation. This contract supersedes any previous agreement or understanding relating to its subject matter.

11.2 This contract may not be varied except by an agreement of the Parties in writing (which may include e-mail).

12. Effect of invalid or unenforceable provisions

If any provision of this contract is held by any court or other competent authority to be invalid or unenforceable in whole or in part, this contract shall continue to be valid as to its other provisions and the remainder of the affected provision, unless it can be concluded from the circumstances that, in the absence of the provision found to be null and void, the Parties would not have concluded this contract. The Parties shall use all reasonable efforts to replace all provisions found to be null and void by provisions that are valid under the applicable law and come closest to their original intention.

13. Dispute resolution procedure

Any dispute, controversy or claim arising out of or relating to this contract, including its conclusion, interpretation, performance, breach, termination or invalidity, shall be finally settled under the rules of UNCITRAL by sole arbitrator. The country of arbitration shall be England. The language of the arbitration shall be English.

14. Applicable law

English law shall apply to the contract.

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