Terms & Conditions

STANDARD CONDITIONS OF SALE

 

1. DEFINITIONS: In these Terms and Conditions of Sale, "Seller" means Flotech Solutions Limited; "Buyer" means the person, firm, company or corporation by whom the order is given; "Goods" means the goods (including Software and Documentation, as defined in Clause 8) to be supplied by Seller; "Contract" means the written agreement made between Buyer and Seller for the supply of the Goods; "Contract Price" means the price payable to Seller by Buyer for the Goods and "Catalogue" means Seller's sales catalogue of which these conditions form a part.

 

2. THE CONTRACT:

2.1  All orders are accepted subject to these Terms and Conditions of Sale. No terms or conditions put forward by Buyer and no representations, warranties, guarantees or other statements not contained in these Terms and Conditions of Sale nor otherwise expressly agreed in writing by Seller shall be binding on Seller.

2.2  The Contract shall become effective only upon the date of acceptance of Buyer's order by Seller.

2.3  No alteration or variation to the Contract shall apply until agreed by both parties. However, Seller reserves the right to effect minor modifications and/or improvements to the Goods before delivery provided that the performance of the Goods is not adversely affected and that neither the Contract Price nor the delivery date is affected.

 

3. PRICES:

3.1  Prices are exclusive of Value Added Tax.

 

4. PAYMENT: Unless otherwise specified on the face of the order acknowledgement/invoice payment is to be made in full in pounds sterling 30 days after the invoice date. Without prejudice to Seller's other rights, Seller reserves the right to: charge interest on any overdue sums at 4% above the base lending rate of Lloyds plc, London (or such higher rate stipulated by applicable law) during the period of delay; and to suspend performance of the Contract (including withholding shipment) in the event that Buyer fails to make payment when due under the Contract or any other contract.

 

5. FORCE MAJEURE:

5.1  The Contract (other than Buyer's obligation to pay all sums due to Seller in accordance with the Contract) may be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including but not limited to: Act of God, war, riot, fire, explosion, accident, flood, sabotage; compliance with governmental requests, laws and regulations, orders or actions (including obligations on Seller to make enquiries to ensure compliance with UK and/or US export controls); or labour trouble, strike, lockout or injunction.

5.3  If performance of the Contract or any part thereof is suspended by reason of this Clause 5 for more than 30 consecutive calendar days, either party may cancel the then unperformed portion of the Contract by notice in writing given to the other party, without liability.

 

6. INSPECTION ON DELIVERY:  No claims for shortfalls in quantity or for incorrect delivery may be made more than 14 days after delivery. Any other claims must be made within 14 days after the event giving rise to the claim.

 

7. DELIVERY, PROPERTY AND RISK:

7.1  Unless otherwise stated in the Contract, the Goods will be delivered Ex-Works, and the risk of loss or damage to the Goods shall pass to buyer upon delivery. “Ex-Works”, “FCA” and any other delivery terms used in the Contract shall be defined in accordance with the latest version of Incoterms.

7.2  Subject to clause 8, Seller shall retain title to the Goods until payment in full therefore has been received.

7.3  If Buyer fails to make any payment to Seller when due, or enters into bankruptcy, liquidation or a composition with it’s creditors, or has a receiver or manager appointed over all or part of it’s assets, or becomes insolvent, Seller shall have the right, without liability for loss and without prejudice to any other remedies:-

(i)    to enter without prior notice any premises where the Goods may be and to repossess and dispose of them so as to discharge any sums owed by Seller by Buyer, and/or

(ii)   to require Buyer not to resell or part with possession of any of the Goods until Buyer has paid in full all sums owed by it to Seller.

7.4  Buyer shall, in respect of Goods owned by seller, maintain records identifying them as Seller’s property, and of the persons to whom it sells or disposes of such Goods, and of payments made by such persons for such Goods and shall insure them for an amount not less than the Contract Price thereof and Seller’s interest in the Goods shall be noted on the policy. Buyer will allow Seller to inspect these records, the policy and the Goods themselves upon request. All goods supplied by Seller in Buyer’s possession shall be presumed to belong to Seller (unless Buyer can prove otherwise).

 

8.  DOCUMENTATION AND SOFTWARE:

8.1  Except where specific licence conditions are stipulated by Seller and/or the third party owner of any software title to and ownership of the copyrights in software incorporated into or provided for use with the Goods ("Software") and documentation supplied with the Goods ("Documentation") shall remain with Seller (or such other party as may have supplied the Software and/or Documentation to Seller) and is not transferred hereby to Buyer.

8.2  Except where specific licence conditions are stipulated by Seller and/or the third party owner of any Software, Buyer is hereby granted a non-exclusive licence to use the Software and Documentation in conjunction with the Goods, provided that and for so long as the Software and Documentation are not copied and Buyer holds the Software and Documentation in strict confidence and does not disclose them to others, or permit others to have access to them (other than Seller's standard operating and maintenance manuals).

8.3  Buyer may transfer the above licence to another party which purchases, rents or leases the Goods, provided the other party accepts and agrees to be bound by the conditions of this Clause 8.

8.4  Seller shall retain ownership of all inventions, designs and processes made or evolved by it and save as set out in this Clause 8 no rights in intellectual property are hereby granted.

 

9. DEFECTS AFTER DELIVERY:

9.1  Seller warrants (i) subject to the other provisions of the Contract, good title to and the unencumbered use of the Goods and (ii) that Goods manufactured by Seller or its affiliates shall conform with Seller's specifications therefor and be free of defects. Seller will make good, by repair or at Seller's option by the supply of a replacement part or parts, any defects which, under proper use, care and maintenance, appear in the Goods within 12 calendar months after their delivery, (90 days after delivery in the case of consumables and spare parts) ("Warranty Period") and which arise solely from faulty materials or workmanship: provided always that defective items are returned to Seller carriage and insurance prepaid within the Warranty Period. (Consumables shall include glass electrodes, membranes, liquid junctions, electrolyte, O-rings, etc). Replaced items shall become Seller's property. Repaired or replacement items will be delivered by Seller within the United Kingdom. Goods repaired or replaced in accordance with this Clause 9.1 shall be subject to the foregoing warranty for the unexpired portion of the Warranty Period or for ninety days from the date of their return to Buyer, whichever expires the later.

9.2  Notwithstanding Clause 9.1, Seller shall not be liable for any defects caused by: fair wear and tear; materials or workmanship made, furnished or specified by Buyer; non-compliance with Seller's storage, installation, operation or environmental requirements; lack of proper maintenance; any modification or repair not previously authorised by Seller in writing; nor the use of non-authorised software or spare or replacement parts. Seller's costs incurred in investigating and rectifying such defects shall be paid by Buyer upon demand. Buyer shall at all times remain solely responsible for the adequacy and accuracy of all information supplied by it.

9.3  The foregoing constitutes Seller's sole warranty and Buyer's exclusive remedy for breach thereof. No representations, warranties or conditions of any kind, express or implied, shall apply as to merchantability, fitness for any particular purpose or any other matter with respect to any of the Goods.

 

10.  PATENT, ETC. INFRINGEMENT:

10.1  Subject to the limitations set forth in Clause 11, Seller shall indemnify Buyer in the event of any claim for infringement of Letters Patent, Registered Design, Design Right, Trade Mark or Copyright ("Intellectual Property Rights") issued at the date of formation of the Contract arising from the use or sale of the Goods, against all reasonable costs and damages awarded against Buyer in any action for such infringement, or for which Buyer may become liable in any such action, provided always that Seller shall not be liable to so indemnify Buyer in the event that:

(i)    such infringement arises as a result of Seller having followed a design or instruction furnished or given by Buyer, or the Goods having been used in a manner or for a purpose or in a country not specified by or disclosed to Seller prior to the date of the Contract or in association or combination with any other equipment or software, or

(ii)   Seller has at its expense procured for Buyer the right to continue to use the Goods or has modified or replaced the Goods so that

(iii)  The Goods no longer infringe.

10.2  Buyer warrants that any design or instructions furnished or given by it shall not cause Seller to infringe any Intellectual Property Rights in the performance of Seller's obligations under the Contract and shall indemnify Seller against all reasonable costs and damages which Seller may incur as a result of any breach of such warranty.

10.3  Seller shall not be liable to indemnify Buyer under Clause 10.1 in the event that;

(iii)  Buyer has failed to give Seller the earliest possible notice in writing of any claim made or to be made or of any action threatened or brought against Buyer and/or Buyer has failed to permit Seller, at Seller's expense, to conduct and control any litigation that may ensue and all negotiations for a settlement of the claim, or

(iv) Buyer has made without Seller's prior written consent any admission which is or may be prejudicial to Seller in respect of any such claim or action.

(v)  the Goods have been modified without Seller's prior written authorization.

 

11. LIMITATION OF LIABILITY:  Except for death or injury caused by Seller's negligence, Seller's total liability for any and all damages, claims or causes of action howsoever arising (including, without limitation, damage, claims or causes of action by virtue of tort, by breach of contract or statutory duty, negligence, strict liability or infringement of Intellectual Property Rights) shall not exceed the Contract Price. Notwithstanding the foregoing, Seller shall not be liable to Buyer in any circumstances for any loss of profits, loss of contracts, loss of use, loss of data or consequential or indirect loss nor, save as set out in Clause 10 and in the preceding provisions of this Clause, for any loss or damage of any kind whatsoever, howsoever arising, claimed against or suffered by Buyer.

 

12.  MISCELLANEOUS:

12.1  No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.

12.2  If any clause, sub-clause or other provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract.

12.3  Buyer shall not be entitled to assign its rights or obligations hereunder without the prior written consent of Seller.

12.4  The Contract shall in all respects be construed in accordance with the laws of England excluding, however, any effect on such laws of the 1980 Vienna Convention on Contracts for the International Sale of Goods. All disputes arising out of the Contract shall be subject to the exclusive jurisdiction of the English courts.

12.5  The headings to the Clauses and paragraphs of the Contract are for guidance only and shall not affect the interpretation thereof

12.6  All notices and claims in connection with the Contract must be in writing