Definitions
These Terms and Conditions of Purchase include the following defined words or phrases:
“Buyer” – meaning Flowquipment Company
“Supplier” – meaning the individual, firm, partnership, company or other party with whom the Seller contracts;“Force majeure” – meaning any event beyond the reasonable control of the Supplier, including, but not limited to, act of God, fire, storm, flood, drought, earthquake, malicious damage, embargo, riot, strike, lock-out, trade dispute, civil disturbance, war, compliance with any law, rule or direction or any other event or accident;
“IPR” – meaning intellectual property rights protected by law in any territory whatsoever.
Conditions of Purchase
Any contract made between the Buyer and the Supplier shall be subject to these conditions. No employee or representative of the Buyer has authority to agree to any terms, or to enter into any contract to order goods except on the basis of these terms. In particular, any terms and conditions included or referred to by the Supplier during any quotation, pre-contract negotiation, order acknowledgement or invoice, are explicitly excluded.
A contract is formed on acceptance by the Supplier of an order made by the Buyer. Acceptance can be through written acknowledgement (noting that any terms that Supplier attempts to include in such acknowledgement are excluded through clause 2 above), or through performance. These conditions shall apply even where no written acknowledgement is given.
The law governing the contract will be that of the country of the respective Buyer.
Buyer requirements
Where the Buyer requests a particular specification, design or build of goods to be supplied, it is the Supplier’s responsibility to highlight any inconsistences that arise between said specification, design or build, and the envisaged end use of the goods.
The Supplier will indemnify and hold the Buyer harmless in any instance that information supplied by the Supplier to the Buyer breaches the IPR of a third party.
Pricing, acceptance and payment
The price in any order placed by the Buyer with the Supplier will, unless otherwise agreed, include packaging, transport, associated insurances and duties payable for delivery of goods to the Buyer by the Supplier.
The Supplier will, if applicable, add VAT at the appropriate rate to their invoice.
Once a Supplier has accepted an order, pricing is fixed and firm. If the Buyer requests changes after an order has been accepted, the Supplier and the Buyer agree to adjust the pricing fairly to reflect such changes.
The Supplier may invoice the Buyer once goods have been delivered. If the Buyer agrees to partial deliveries, the Supplier may raise invoices to reflect these partial deliveries.
The Buyer will pay the Supplier 60 days after the date of the invoice. If the Buyer disputes an invoice, the Buyer agrees to notify the Seller within a reasonable timeframe. The Buyer and Seller agree to resolve any disputes efficiently and in good faith. Invoices in dispute will not be paid until the dispute is resolved.
Warranties
The Supplier warrants that for a period of 18 months after delivery, or 12 months after goods are put into use (whichever is the later):
The goods comply with the specification as ordered by the Buyer;
The goods are supplied with good legal title, free from any third party charges or interest;
The goods are fit for the purpose envisaged; and
The goods are of high quality and without defects.
If the Supplier breaches any of the above warranties, the Supplier will at the Buyer’s sole discretion:
Repair or replace the affected goods;
Provide a credit note for the affected goods;
Reimburse the Buyer for the repair or replacement of the goods by a third party.
The Supplier warrants that the goods conform with the latest legislative and industry standards in the Buyer’s territory. It also warrants that no IPR has been infringed in the manufacture or supply of the goods, or in otherwise fulfilling the contract.
The Buyer will be entitled to cancel the contract in the event of a serious breach of warranty. The Buyer will, at its sole discretion, either:
pay for goods supplied to that point; or
return all goods supplied and any monies already paid to the Supplier in relation to such goods will be immediately reimbursed.
The Supplier will indemnify the Buyer against costs or damages attributable to a breach of any warranty (even if the Buyer cancels the contract under clause 15). The Supplier warrants that it carries appropriate insurance for the purposes of fulfilling any claims for breach of warranty.
Delivery and inspection
The Supplier agrees to deliver the goods on the date and to the location specified in the Buyer’s order. The Supplier will indemnify the Buyer if the Buyer suffers loss or damages as a result of late delivery. The Buyer may, on a case by case basis, agree a grace period after the specified delivery date before the Buyer can claim for such loss or damages.
If the Supplier considers there could be a delay in delivery, it will notify the Buyer immediately. The Supplier will take all reasonable steps to remedy the delay.
The Supplier acknowledges that the goods are subject to onward sale by the Buyer. If delivery is delayed such that the Buyer’s obligations in an onward sale are prejudiced, the Buyer has the right to terminate the contract with the Supplier without penalty or cost. In such circumstances, the Seller agrees to indemnify the Buyer against any loss or damages incurred by the Buyer related to its onward sale.
Where delivery is delayed due to Force Majeure, the Supplier will notify the Buyer immediately. If the Buyer agrees that there is an instance of Force Majeure, the Supplier will not be liable for loss or damages arising from late delivery. However, the Supplier agrees to do all it reasonably can to fulfil the order as quickly and efficiently as possible after Force Majeure conditions have been resolved. Delay of more than 30 days from the original delivery date due to Force Majeure will entitle the Buyer to terminate the contract without any cost or penalty. Any rights and obligations accrued up to that point, for example due to partial delivery, shall not be affected.
The Buyer agrees to inspect goods within a reasonable time of delivery and notify the Supplier promptly of any issues highlighted by the inspection. The Buyer (or its representative) may also inspect work in progress or finished goods at the Supplier’s premises between order placement and despatch of goods. The Supplier acknowledges that any inspection may not highlight all defects, and that warranty issues are often found after initial inspection. Therefore, inspection of any kind does not affect the Buyer’s other rights under this contract.
Delivery shall transfer the risk in, and legal title of, the goods to the Buyer.
Termination
The Buyer may for its own convenience terminate the contract with the Supplier at any point prior to delivery. If the Buyer terminates the contract for convenience, the Supplier agrees to take all reasonable measures to limit its costs, and the Buyer agrees to reimburse the Supplier for costs incurred up to the point of cancellation. The loss of the Supplier’s profit on the contract is excluded
The Buyer has the right to terminate the contract immediately without cost or penalty i
The Supplier enters financial difficulty (or the Buyer reasonably suspects that it will); or,
If there is any change in the ownership or corporate structure of the Supplier.
General
To the fullest extent possible under the governing law of the contract, the rights of third parties to enforce this contract are excluded
The Supplier agrees that the Buyer may conduct a quality audit at any point during or after the contract, and will make its quality records and personnel available if requested.
The Supplier has anti-bribery, anti-corruption, anti-slavery and ethical working policies which conform with the requirements of the governing law of the contract.
The Supplier does not source materials from territories with which trade of such materials is prohibited. Conversely, the Buyer will not supply finished goods to customers in territories where the sale of such goods is disallowed.
The Supplier agrees to keep the existence of the contract and associated communications confidential. The Supplier will not publish any such details on its website or make any releases to the press.
The Supplier will not subcontract or assign its rights or obligations under this contract without the permission of the Buyer.
If any provision in these Terms and Conditions of Purchase is found to be incompatible with the governing law of the contract, the Buyer and the Supplier agree that only those items which are incompatible should be disregarded, and all other terms shall stand.
Definitions
These Terms and Conditions of Sale include the following defined words or phrases:
“Seller” – meaning Flowquipment UG (haftungsbeschränkt)
“Customer” – meaning the individual, firm, partnership, company or other party with whom the Seller contracts;
“Force majeure” – meaning any event beyond the reasonable and direct control of the Seller, including, but not limited to, act of God, fire, storm, flood, drought, earthquake, malicious damage, embargo, riot, strike, lock-out, trade dispute, civil disturbance, war, compliance with any law, rule or direction or any other event or accident;
“Loss” – meaning any and all direct or indirect financial loss, damages (including timebased or liquidated damages), loss of business, loss of goodwill or reputation, or any other economic cost.
Conditions of Sale
Any contract made between the Seller and the Customer shall be subject to these conditions. No employee or representative of the Seller has authority to agree to any terms, or to enter into any contract except on the basis of these terms. In particular, any terms and conditions included or referred to by the Customer during any quotation, pre-contract negotiation or order, are explicitly excluded.
No order placed by a Customer shall be binding on the Seller unless accepted by the Seller in writing (including email). No contract will arise until such acceptance. These conditions shall apply even where no written acknowledgement is given.
Any descriptions contained in marketing materials are a guide only and do not form a contractual representation.
The law governing the contract will be that of the country of the respective Seller.
Customer requirements
Where the Customer requests a particular specification, design or build of goods to be supplied, the suitability and accuracy of such design is entirely the Customer’s responsibility. The Customer agrees to indemnify and hold the Seller harmless where any Loss arises as a result of incorrect specification being provided by the Customer.
The Customer will also indemnify and hold the Seller harmless in any instance that the specification provided by the Customer breaches the intellectual property rights of a third party.
Quotation and Pricing
The Seller is entitled to amend its pricing up to the date of despatch of goods, even where prices had previously been agreed, where its cost of supply has increased for any of the following reasons:
A change in exchange rates
A change in raw material cost
A change in specification by the Customer;
A change in the delivery place, time or method requested by the Customer;
Inadequacy of information provided by the Customer resulting in the Seller incurring additional or unforeseen costs.
Prices quoted exclude all national and international taxes and duties, which shall be payable by the Customer.
Delivery
Delivery dates set out in quotations, customer orders, or the final contract are intended as a guide and are given in good faith. The Seller will do all it reasonably can to meet such delivery dates, but the Customer acknowledges that dates cannot always be met. Failure by the Seller to meet such dates will not constitute a breach of these terms, and the Customer agrees to indemnify and hold the Seller harmless against any Loss resulting from late delivery.
Where delivery is delayed due to Force Majeure, the Seller will have no liability to the Customer. The Seller and the Customer agree that, under these circumstances, either party may cancel the contract without further liability to the other. Any rights and obligations accrued up to that point, for example due to partial delivery, shall not be affected.
Where the Seller and the Customer agree that delivery shall take place at the Customer’s premises:
The Seller shall be entitled to charge the Customer separately for such delivery, including packing, insurance, transport, loading and unloading costs;
The Customer shall make themselves available to receive such delivery during normal business hours (Monday to Friday, 0800 to 1800 inclusive). The Seller is entitled to charge for any additional delivery attempts required where the Customer was not available during such hours;
Unless otherwise stated, the Seller will have discharged its obligations to the Customer when a delivery attempt is made at any premises where the Customer carries on its business.
Where the Seller and the Customer agree that delivery shall take place at the Supplier’s premises:
Loading and transportation (including associated costs) will be organised by the Customer;
The Seller will be entitled to charge a reasonable storage fee if the Customer does not collect goods on the agreed date.
Risk in the goods shall pass to the Customer at the point of delivery. The Customer shall insure such goods appropriately until legal title passes to the Customer.
Where supply of goods is international (that is, where the Seller is delivering outside of its own national territory), the provisions of the latest Incoterms may be incorporated into this agreement if agreed by the Seller and the Customer. Where there is inconsistency between the Incoterms and these Terms and Conditions of Sale, these terms will prevail.
The Seller may make deliveries in instalments. Where this happens, the contract will be deemed to be divisible. As such, each instalment shall be considered to arise from a separate Contract and shall be invoiced separately. Any defects or delay with one instalment shall not preclude payment of other instalments; for clarity, invoices raised for instalments that are properly delivered shall be payable in full.
Payment
Legal title to goods shall pass at the point of payment.
The Seller shall raise an invoice to the Customer:
Where delivery is to the Customer’s premises, upon the point of delivery;
Where delivery is at the Seller’s premises, at the point that the Customer was notified that the goods were available for collection;
Where delivery is governed by Incoterms, at the point that the Seller is entitled to raise an invoice according to the agreed terms.
Standard payment terms are 30 days from date of invoice. If other terms are agreed, the agreed payment date will be included by the Seller on the invoice. Failure by the Customer to receive or process an invoice promptly will not affect the payment date.
Failure to pay within the agreed time period will result in interest being applied at:
For sales in the UK, the Bank of England base rate of interest plus 8%;
For sales in Spain and the Netherlands, the European Central Bank base rate of interest plus 8%;
In the event that these rates exceed the maximum rate enforceable from time to time by the applicable governing law, then the maximum legal rate shall be applied.
If the Customer fails to pay, or if the Seller has reasonable grounds to believe that the Customer will fail to pay, the Seller has the right to withhold all further deliveries until such payment is received. If no payment is received within 30 days of the original due date, the Customer agrees that the Seller has the right to enter the Customer’s premises and remove goods for which payment was delayed. If these goods have been moved, the Customer agrees to return them immediately to the Seller at the Customer’s expense.
The Customer has the right to request cancellation of a contract. The Seller will only agree to such cancellation if the Customer makes fair payment for the value of work done to the point of cancellation sufficient to cover the Seller’s incurred or unavoidable costs and any loss of profit on the contract. Any request to cancel the contract by the Customer can only be accepted by the Seller in writing (or email).
Liability, and Limitation of Liability
The Seller will only accept legal liability for the following:
Damage to or loss of goods before the point of delivery;
A defect in goods which is found by the Customer when inspecting at the point of delivery. Any such defect must be reported by the Customer to the Seller no more than seven days after delivery;
Failure of the goods within the first twelve months of being put into use, but only where such failure occurs within eighteen months of delivery (“Warranty Period”). Any such failure must be reported by the Customer to the Seller no more than seven days after discovery.
Where a defect or failure is notified to the Seller, the Customer agrees that the Seller has fourteen days to inspect the goods affected to verify the defect or failure.
The Seller will only have liability to the Customer where any defect or failure has been notified within the agreed periods set out above, and where that defect or failure materially affects the ability of the goods supplied to perform as envisaged.
Where the Seller has liability to the Customer, that liability will be limited to:
Replacing any lost, damaged, defective or failed goods;
Repairing (or meeting the cost of repairing) the lost, damaged, defective or failed goods; or
Refunding the price of the lost, damaged, defective or failed goods.
The Seller excludes to the fullest extent possible under the relevant governing law any liability for any Loss other than as set out at Clause 26. The Seller alone shall choose which of the remedies set out in Clause 26 shall be pursued.
Where goods are replaced or repaired, the Warranty Period for the affected goods will recommence at the point of replacement or repair.
General terms
These Terms and Conditions of Sale will be the only terms governing the contract. All other terms are explicitly excluded.
Failure by the Seller to enforce particular terms in this agreement does not constitute a waiver of the Seller’s rights.
If any provision in these Terms and Conditions of Sale is found to be incompatible with the governing law of the contract, the Customer and the Seller agree that only those items which are incompatible should be disregarded, and all other terms shall stand.