Effective July 2006
FLEXcon Europe Ltd reserves the right to apply its terms and conditions of sale (this original English version). These terms are legally binding and subject to the laws of Scotland.
In these Standard Terms and Conditions of Sale, “Seller” means FLEXcon Europe Limited, a limited liability company incorporated under the laws of Scotland with the company number SC 170245 and having its registered offi ce at Princes Exchange, 1 Earl Grey Street, Edinburgh EH3 9AQ, and “Buyer” means the person or company to whom this document is addressed or who places an order for products from Seller.
For the avoidance of doubt, any quote or estimate that Seller provides to Buyer does not constitute an offer. Buyer’s order on Seller’s standard terms will constitute an offer and Seller’s order acknowledgement will constitute acceptance of that offer.
These Standard Terms and Conditions of Sale, together with information contained in Seller’s written order acknowledgment and invoice (and any additions or revisions mutually agreed to in writing by Seller and Buyer) (“Agreement”), shall constitute the entire agreement and understanding of Seller and Buyer with respect to the purchase and sale of Seller’s products, superseding all prior oral or written understandings relating thereto.
3. TERMS OF PAYMENT
Unless otherwise stated on Seller’s order acknowledgment or invoice, Buyer shall pay all amounts due for products purchased hereunder in cash within thirty (30) days after the date of Seller’s invoice, provided that in the event Seller reasonably deems Buyer’s fi nancial status unsatisfactory or Buyer is in default of any obligation of Buyer to Seller, Seller (without prejudice to any other rights or remedies it may have) may require payment in full in cash of all amounts payable to Seller by Buyer under Seller’s invoice or otherwise prior to delivery of any products.
If any amount remains unpaid after its due date, in addition to paying that amount immediately, Buyer must pay an additional interest and service charge equal to the amount indicated on Seller’s then current applicable price list or, if no such amount is indicated, the greater of an amount equal to one and one-half percent (1.5%) of the unpaid balance per month (or portion thereof) or an amount calculated at the highest interest rate permitted by applicable law, accruing from the applicable due date. Buyer shall not withhold or set off from any amounts due to Seller, any amounts claimed to be owed by Seller to Buyer for any reason whatsoever.
4. PRICES AND DELIVERY
Unless otherwise expressly indicated in writing by Seller, prices for all products are as noted on Seller’s price list as in effect at the date of delivery. All prices are based on the quantity ordered by Buyer and, unless otherwise indicated on Seller’s order acknowledgment or invoice, are calculated on the basis of delivery in accordance with the Incoterm 2000 specifi ed in Sellers quote or, if no such Incoterm is specifi ed, on the basis of Ex-works delivery. Unless otherwise indicated on Seller’s order acknowledgment or invoice, Buyer shall pay, and be exclusively liable for, all costs of shipping, delivery, insurance and the like [after the Seller has effected delivery of the products to Buyer in accordance with this clause][regardless of when or where Seller delivers the products in accordance with this clause]. Any and all dies, tools or other equipment used to produce products hereunder shall remain Seller’s exclusive property, notwithstanding any charges relating to such dies, tools and other equipment refl ected on Seller’s invoice.
For the avoidance of doubt, all products will be delivered [Ex-works at insert name or address of facility – either Scotland or the Netherlands] unless otherwise specifi ed on Seller’s quote. Where delivery is otherwise than on an Ex-works basis Seller will deliver the products by the shipping method that it considers most appropriate.
Seller does not assume any liability in connection with the shipment of any products regardless of how or where delivery is made and any and all claims by Buyer for damage or loss of products in transit, regardless of where delivery occurs, shall be made by Buyer against the relevant carrier.
Prices are exclusive of any value-added tax (VAT), import duties or other governmental tax charge or assessment on the sale, delivery, production or use of any products sold to Buyer hereunder. Such taxes and charges, when applicable, may appear as separate additional charges on Seller’s invoice. Buyer shall be solely responsible for, and shall pay to Seller upon demand, any such tax, charge or assessment, unless Buyer has furnished to Seller an appropriate valid certifi cate of exemption issued by or acceptable to the tax authority in question.
Unless otherwise indicated on Seller’s order acknowledgment or invoice, in accordance with industry practice, Seller reserves the right to deliver and invoice plus or minus ten percent (10%) of the total quantity of each product ordered by Buyer hereunder.
7. BUYER’S MATERIALS
Buyer represents and warrants that any and all materials or other items furnished by or on behalf of Buyer to Seller for use in connection with production of Seller’s products will be Buyer’s exclusive property, free and clear of all liens, claims, encumbrances and defects whatsoever and shall conform to the applicable specifi cations required for such materials and other items. Unless otherwise indicated on Seller’s acknowledgment and/or invoice, Buyer shall bear all costs of delivering such materials and items to Seller’s production facility. Seller shall be liable for any loss, destruction or damage of any such materials or items while in Seller’s possession to the extent (but only to the extent) caused solely by Seller’s negligence, subject to the limitation on Seller’s liability described in Paragraph 15 below. Buyer shall provide Seller with any other information regarding such materials and other items, including without limitation the cost and accepted level of waste therefor, promptly upon Seller’s request.
8. DELIVERY DATES
Seller shall make every reasonable effort to effect delivery on or before the scheduled delivery date(s) refl ected on Seller’s order acknowledgment or invoice, but such schedule may vary due to, among other things, conditions beyond Seller’s reasonable control, including, but not limited to Seller’s receipt of all materials and information to be supplied by Buyer. If no delivery date is specifi ed, delivery will be made on date(s) selected by Seller or, at Seller’s option, products will be stored by Sellers for Buyer’s account, at Buyer’s risk and expense. In no event shall Seller be liable for any damages or penalties for delay in delivery or for failure to give notice of delay. Delivery may be made in advance of any scheduled delivery date upon reasonable prior notice to Buyer.
Unless a preferred packing method is noted on Seller’s order acknowledgment or invoice, all items will be packed for delivery in accordance with Seller’s standard practices.
10. RETENTION OF TITLE
Notwithstanding delivery, title and interest in and to all and any products sold by Seller to Buyer shall remain in Seller and shall not pass to Buyer until Seller has received payment in full of all amounts due and owing from Buyer to Seller from time to time (including interest) in respect of all such products. During such time as title in such products remains in Seller, Buyer shall store or otherwise keep the products in such a way as clearly to indicate at all times that the products are owned by the Seller. If Buyer should fail to pay when due any amount Buyer owes to Seller on account of such products or in the event of liquidation of the appointment of a receiver or administrator over Buyer, Seller shall have, in addition to any other rights of Seller, the right (without liability of Seller) to repossess such products (including the right to enter any premises or vehicles of Buyer and to remove any or all of the products during normal business hours) or to require Buyer to effect (at Buyer’s expense) return delivery of such products to Seller. Nothing in this Section 10 shall confer any right upon Buyer to return or procure the return of the products to the Seller.
11. RISK OF LOSS
All risk of loss of or damage to products sold by Seller to Buyer hereunder shall be assumed by Buyer upon Seller’s delivery of such products in accordance with the terms of the Agreement. It is the responsibility of Buyer to insure the products against accidental loss or damage from the time of delivery and Buyer shall hold the proceeds of any insurance claim on trust for Seller. Any and all claims by Buyer for damage, loss or delays in transit shall be made by Buyer against the carrier and/or the insurer (with notice thereof to Seller), and Seller shall have no responsibility or obligations with respect to any such damage, loss or delay.
12. INSPECTION BY BUYER
Buyer shall carefully inspect all deliveries of products as they are received by Buyer and report to Seller promptly (but in any event within ten (10) calendar days after receipt of shipment) any alleged error, shortage, defect or nonconformity of such products. Any failure by Buyer so to inspect and report shall constitute a waiver by Buyer of any claim or right of Buyer against Seller arising with respect to any such error, shortage, defect, or nonconformity.
Buyer cannot cancel any product order accepted by Seller except on terms which indemnify Seller from and against any and all loss, damage or expense caused directly or indirectly by said cancellation. In the event of any other termination or suspension of any product order accepted by Seller for any reason whatsoever, Buyer will accept delivery of, and make payment for, any and all products completed, or in production, as at the date of such termination or suspension. In the event of Buyer’s failure to accept such delivery, Seller will store such products for Buyer’s account, at Buyer’s risk and expense.
It is the sole and exclusive responsibility of Buyer to determine the suitability of any and all products of Seller for Buyer’s intended purposes and uses. Seller warrants that the products sold hereunder conform to Seller’s applicable specifi cations for such products (subject to Seller’s standard tolerances for variations) as in effect at the time of delivery by Seller, or, if applicable, specifi cations provided by Buyer and expressly accepted by Seller in writing provided that (i) Seller shall not have any liability whatsoever for any damage to or defect in products resulting directly or indirectly from events occurring after the delivery of such products by Seller and (ii) Seller shall not have any liability whatsoever for any damages, defects,losses, expenses,costs or delays arising out of or in any way related to any materials or other items provided to the Seller by or on behalf of Buyer. Subject to the last sentence of Paragraph 15, liability of Seller under the Agreement or in connection with the sale of its products shall be limited, at the sole option of Seller, to either refund of the purchase price of, or replacement of, any product (a) with respect to which Buyer notifi es Seller of Buyer’s claim of any alleged defect or nonconformity hereunder promptly after delivery (and in any event within ten (10) calendar days after receipt by Buyer) and (b) which is returned to Seller promptly upon request, and (c) which is determined by Seller to be defective or nonconforming hereunder.
THIS LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SELLER WITH RESPECT TO
PRODUCTS SOLD OR PROVIDED BY SELLER. SELLER GIVES AND MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, OTHER THAN THAT EXPRESSLY SET FORTH HEREIN, AND ALL OTHER REPRESENATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
NO IMPLIED WARRANTY OF SATISFACTORY QUALITY, NO IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE AND NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE IS GIVEN OR MADE BY SELLER OR SHALL ARISE BY OR IN CONNECTION WITH ANY SALE OR PROVISION OF PRODUCTS BY SELLER, OR BUYER’S USE OF ANY PRODUCTS, OR SELLER’S AND/OR BUYER’S CONDUCT IN RELATION THERETO OR TO EACH OTHER, AND IN NO EVENT SHALL SELLER HAVE ANY LIABILITY OR OBLIGATION WHATSOEVER UNDER OR IN CONNECTION WITH ANY SUCH WARRANTY WITH RESPECT TO ANY PRODUCTS.
15. LIMITATION ON SELLER’S LIABILITY
Buyer acknowledges that no guarantees or assurances have been made as to the results that may be obtained from the use of the products sold hereunder whether used singly or in combination with other items. Buyer acknowledges that it does not rely on, and waives any claim relating to, any recommendation or instruction given to Buyer by Seller or any of its representatives regarding the specifi cations, storage, handling or use of products purchased and sold hereunder, which recommendation or instruction shall be followed or acted upon by Buyer entirely at Buyer’s own risk.
SELLER’S LIABILITY, AND BUYER’S EXCLUSIVE REMEDY, IN CONNECTION WITH THE SALE OR USE OF PRODUCTS SOLD HEREUNDER (WHETHER BASED ON CONTRACT, NEGLIGENCE, DELICT, BREACH OF WARRANTY
OR OTHERWISE), SHALL BE STRICTLY LIMITED TO SELLER’S OBLIGATIONS AS SPECIFICALLY AND EXPRESS-
LY PROVIDED IN THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 14. EXCEPT AS SPECIFICALLY PROVIDED IN SUCH LIMITED WARRANTY, SELLER SHALL HAVE NO LIABILITY, OBLIGATION OR RESPONSIBILITY
OF ANY KIND, IN ANY WAY OR TO ANY EXTENT FOR ANY LOSSES, EXPENSES, COSTS, DAMAGES OR LIABILITIES FOR ANY REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCTS (OR THE PERFORMANCE THEREOF), OR ARISING IN ANY WAY OR IN CONNECTION WITH THE PURCHASE BY OR USE OR SALE OF THE PRODUCTS BY BUYER, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WHATSOEVER SHALL SELLER HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING IN ANY WAY IN CONNECTION WITH THE PRODUCTS OR THEIR SALE OR USE, INCLUDING BUT NOT LIMITED TO DAMAGE TO PROPERTY, LOSS OF USE OF THE PRODUCTS OR ANY ITEM WITH WHICH SUCH PRODUCTS ARE USED, OR DELAYS OR INCONVENIENCE.
IN NO EVENT WHATSOEVER SHALL SELLER HAVE ANY LIABILITY TO BUYER, ARISING OUT OF OR IN CONNECTION WITH THE SALE OR USE OF THE PRODUCTS SOLD HEREUNDER, THE TRANSACTIONS CONTEMPLATED HEREBY, OR SELLER’S OR BUYER’S CONDUCT OR ACTIONS IN RELATION TO ANY OF THE SAME OR TO EACH OTHER, IN AN AMOUNT IN EXCESS OF, AND SELLER’S LIABILITY SHALL BE STRICTLY LIMITED TO, THE AMOUNT(S) ACTUALLY RECEIVED BY SELLER FROM BUYER AS PURCHASE PRICE FOR THE PRODUCTS WHICH GIVE RISE TO SELLER’S LIABILITY.
NOT WITHSTANDING THE FOREGOING, SELLER DOES NOT HEREBY EXCLUDE OR RESTICT ITS LIABILITY IN RESPECT OF DEATH OR PERSONAL INJURY RESULTING FROM (A) ITS NEGLIGENCE OR BREACH OF DUTY, (B) FRAUDULENT MISREPRESENTATION OR (C) BREACH OF ANY IMPLIED WARANTY AS TO TITLE UNDER S12 OF THE SALE OF GOODS ACT 1979.
Authorization to return products purchased from Seller must be obtained from Seller prior to any such return. In Seller’s sole discretion, credit may be granted with respect to returned products, less an appropriate restocking charge, depending on the reason for the return and the condition of the product. Any returned products must be shipped to Seller, freight prepaid, at Buyer’s risk.
Buyer agrees to indemnify, hold harmless and defend Seller (and its employees, subsidiaries, affi liates, successors and agents) from and against any and all judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and attorneys’ fees) incurred or suffered by Seller, which relate to or arise out of (a) Buyer’s use, handling, sale or distribution of the products sold hereunder; (b) Buyer’s breach of any representation, warranty or obligation hereunder; (c) the infringement or violation of any third party’s intellectual property or other rights arising out of or in connection with Seller’s use of specifi cations, materials or other items provided to Seller by Buyer and/or (d) any materials or other items provided to Seller by or on behalf of Buyer.
Seller shall not be deemed to have waived any provision hereof, or any breach by Buyer of any provision hereof, unless such waiver is specifi cally set forth in writing and executed by an authorized offi cer of Seller. No waiver by Seller of any provision hereof or any breach by Buyer hereunder shall constitute a waiver of such provision on any other occasion or a waiver of any other breach by the Buyer.
19. FORCE MAJEURE
In no event shall Seller have any liability to Buyer for any delayed performance or nonperformance by Seller which results, in whole or in part, directly or indirectly, from any cause beyond the reasonable control of Seller. Such causes shall include (but shall not be limited to) acts of God, wars, riots, acts of terrorism, civil disturbances, strikes, labor disputes, fi res, fl oods, natural disasters, inability to obtain or use raw or component material or parts, labor, equipment, facilities, or transportation, and acts of any government or agency thereof. Buyer’s order will be deemed suspended for so long as any such cause prevents or delays Seller’s performance. In the event of any such suspension, Seller shall have the right, at its option, upon notice to Buyer, (a) to terminate its obligation to sell any or all of the products ordered hereunder or (b) to resume performance as soon as practicable after the suspension, and reschedule delivery of the products ordered hereunder to one or more deferred dates to be mutually agreed upon by Buyer and Seller, subject to Buyer’s payment of any additional charge for any increase in Seller’s direct or indirect costs occasioned by the suspension of its performance.
20. TERMINATION AND SUSPENSION OF DELIVERIES
Without prejudice to its other rights, Seller may by giving written notice to Buyer elect to terminate the Agreement forthwith or to suspend delivery under this or any other agreement with Buyer or to make partial deliveries, on the occurrence of any one of the following events:
(a) If Buyer repudiates or commits any breach of the Agreement entitling Seller to treat the Agreement as repudiated; (b) If Buyer fails to make on the due date any payment that may be due under the Agreement or any other agreement with Seller;
(c) If Buyer commits any other breach of the Agreement and does not remedy the same within one month of having been requested by Seller by notice in writing to do so;
(d) If any distress or execution levied upon or against any of the assets or property of Buyer is not satisfi ed within 21 days after the date of such levy or enforcement;
(e) If Buyer commits any act of bankruptcy or if any petition or order in bankruptcy is presented or made against
(f) If Buyer is granted a moratorium by or enters into a composition of debts with its creditors;
(g) If an order is made or a resolution passed for the winding up of Buyer, unless such resolution is made for the purpose of reconstruction or amalgamation; or
(h) If a receiver, administrator or equivalent offi cer is appointed over any undertaking or any of the property and as sets of Buyer.
21. GOVERNING LAW
The Agreement and the transactions contemplated by it shall be governed by, and construed and enforced in accordance with, the laws of Scotland.
The invalidity or unenforceability, in whole or in part, of any provision, term or condition of the Agreement shall not affect the validity and enforceability of the remainder of such provision, term or condition or of any other provision, term, or condition of the Agreement.
Buyer’s rights and obligations hereunder may not be assigned or otherwise transferred without Seller’s express prior written consent.
As between Buyer and Seller, the Agreement may not be amended except by written agreement of Seller and Buyer expressly referring hereto.
25. INTELLECTUAL PROPERTY
“Intellectual Property”, as used herein, shall mean any patents, copyright, trade marks, trade secrets, database rights, know-how or other intellectual property rights in any jurisdiction, whether or not registered or capable of registration. Buyer agrees to treat all information relating to Intellectual Property of Seller, including, without limitation, all Intellectual Property in and to any products provided by Buyer to Seller, as confi dential and proprietary and in addition agrees not to disclose such information to any third party without obtaining the prior written consent of Seller to do so. All Intellectual Property relating to Seller’s products and/or any information that Seller provides to Buyer shall (as between the parties) at all time remain vested in Seller. Buyer shall not acquire or claim any Intellectual Property rights or licence relating to Seller’s products and furthermore, Buyer shall not copy or imitate Seller’s products.
Created: 10/08/12 / Modifi ed: 13 August 2012 5:30 PM