Terms & Conditions of Sale (‘the Conditions’)
The following Terms and Conditions (“Terms”) are applicable to all sales made by Flood Control International Incorporated (“Seller”), a private company registered in USA (c/o National Registered Agents Inc, 111 Eight Avenue, New York, NY10011). “Buyer” means an individual or body corporate entering into a business agreement with Seller or making use of any products, services or facilities, whether on payment or gratis, which seller may choose to offer from time to time. The acceptance of any order is expressly conditioned upon Buyer’s consent to these Terms, any other terms and conditions including Buyers into a business agreement with Seller being expressly excluded. No interlineations, deletions, modifications or amendments to these Terms shall be binding on Seller unless agreed to and accepted in writing by Seller.
All sales are subject to written confirmation by Seller, subject to supplies and services being available and unsold. Each accepted order constitutes an entire and separate contract to which these Terms shall apply. Receipt by Buyer of Seller’s acknowledgment of an order without prompt written objection thereto or acceptance by the Buyer of delivery of the products shall constitute acceptance by Buyer of these Terms.
Where orders and acceptances are to be communicated via electronic data interchange (EDI) messages any order transmitted to Seller requires its acceptance to be transmitted to Buyer before any contract arises. Each order so accepted will be governed by these Terms.
2. PRODUCT PRICE QUOTATIONS
The quotations or tenders are noncommittal and non-binding in nature. No contract shall arise until a written acknowledgment from Seller accepting the Buyer’s order, is sent by Seller to the Buyer. Goods and any service in respect thereof will be invoiced at the prices ruling at the date of acceptance of order. Where a fixed price has been agreed with respect to an order, Seller may increase the price before or after acceptance of order, without notice, to the extent that the cost to Seller of producing or procuring the goods or services (if any) has increased or is due to any other circumstances beyond the Seller’s control.
The weights, dimensions, capacities, performance ratings, characteristics and other data on Seller’s catalogs, prospectus, circulars, advertisements, price lists and instructions sheets are mentioned only as general information. They are only approximate and shall not bind Seller.
3. ALTERATION IN SPECIFICATION
Seller reserves the right to make any alteration in specification of the goods which do not materially alter their quality or performance, or, even if the alteration of the goods materially alters the quality or the performance of the goods, where specification is to conform to any applicable safety or other statutory requirements. If Buyer requires any further information or advice on safe use of the goods in question, Buyer shall forthwith contact the Seller.
Unless otherwise specified by the parties in writing, the goods are to be delivered “ex works”, at Seller's place of business (as “ex-works”/ EXW is defined by Incoterms 2010). The method and agency of transportation and routing will be designated by the Seller. In the event the Buyer requests alternative shipment or routing, extra packing, shipping and transportation charges thereby resulting will for the Buyer’s account. Seller is not responsible for any damage in shipment.
Buyer shall be solely responsible for the obtaining of any necessary import licenses or authorizations in respect of the goods and Seller shall be under no liability whatsoever in respect of goods exported without the necessary licenses.
5. DELAYS IN DELIVERY
Any specific shipping date designated in writing signed by the Seller shall be interpreted as estimated and in no event shall dates be construed as falling within the meaning of “time is of the essence”. The Seller shall not be responsible for any delays in filling orders, nor shall it be liable for any loss or damages resulting from such delays. If a specific shipping date is specified in the order or later agreed to by the Seller, then the Seller shall not be liable for any delays in filling such order caused by delays resulting from any and all conditions beyond the control of Seller, including but not limited to, (a) accidents to or malfunctions of Seller’s or Seller’s subcontractors’ or suppliers’ machinery; (b) differences with employees, strikes, or labor shortage; (c) fire, floods, hurricanes or other natural disaster; (d) supplier or subcontractor delays, including any quantity or quality defects; (e) delays caused by an instrumentality of the United States Government or any government or any agency; (f) delays in transportation; (g) restriction imposed by any governmental regulation, whether valid or invalid; or other cause beyond the control of the Seller, or any condition without the sole fault or negligence of the Seller.
Under no circumstances shall Buyer or Buyer's customer be entitled to any damages for Seller's failure to ship on time, and Buyer agrees to indemnify, defend and hold Seller harmless against any costs and expenses related to any claims for lost profits or other consequential damages based on Seller's failure to deliver timely.
If Buyer does not accept or pick up the goods at the date specified in the order or later agreed to by Seller, the delivery of the goods shall nevertheless be deemed accepted by Buyer who shall therefore pay for the goods delivered. The storage of the goods arranged by Seller will be at the risk and expense of the Buyer. Seller shall further be entitled, to the exclusion of any other remedy for the Buyer’s failure to take the products, to recover any expenses properly incurred in performing the contract and not covered by payments received for the goods delivered.
Seller reserves the right to make delivery by installments and these Terms shall apply with appropriate amendments to each installment delivery. Seller is entitled to tender an invoice for each installment to be paid by Buyer in accordance with Section 4 of these Terms.
Unless otherwise stated payment for the goods shall be received by Seller within thirty (30) days net from the date of the issuance of the invoice. In the event Seller feels insecure concerning payment by Buyer, Seller reserves the right to require cash or letter of credit payment terms. The price does not include any present or future Federal, State or Local property, sales, use, excise, license, gross receipts or other taxes or assessments which may be applicable to, imposed upon or result from this transaction or any services performed in connection with these Terms and/or the Products. The Buyer agrees to pay any such taxes or reimburse payment of such taxes by Seller.
In the event payment is not received when due, interest shall be due at the rate of one and one half percent (1.1/2%), or the maximum permitted by law, on the unpaid portion of the invoice sum for each period of thirty (30) days or part thereof from the due date. Seller has the right to refuse to deliver goods or services if Buyer is past due on any of its debts to Seller. Furthermore, Seller shall have the right to retake and sell any and all goods immediately unless other written arrangements have been made concerning payment only if Buyer is past due. Buyer agrees to make all goods available, shipping ready, for Seller, within five (5) days of receiving notice from Seller of its intention to retake the goods and for such purpose Seller shall have an irrevocable license or authority to enter upon any premises where those goods may be situate with such transport as may be necessary and Buyer shall render all reasonable assistance to Seller to so recover the goods.
Buyer shall pay all of Seller's costs of collection of any amounts past due, including, but not limited to attorneys' fees, court costs, witness fees, travel and lodging, etc.
Seller will be entitled to apply payments made by Buyer first to pay those claims it deems appropriate, including interest, late charges, costs of collection, etc.
Buyer, or its affiliates or assignees, will not be entitled to suspend its payment obligations to Seller, claim any right to compensation and/or to offset its payment obligations with any obligations of Seller to Buyer, with such obligations being those set forth in these Terms or other purchase contract between the Buyer and Seller. Buyer will not be entitled to dissolve the contract with Seller if Buyer is in default.
If Buyer does not fulfill its payment obligations to Seller completely or within the applicable payment period, Seller will be entitled to revoke or reclaim any discounts agreed with or offered to Buyer at time of order and/or to suspend its obligations to Buyer completely and/or not to perform them.
7. SECURITY INTEREST
In order to protect and secure payment of all debts due and owing from Buyer and until Seller has been paid in full, Buyer hereby grants to Seller a security interest in the Products, and all proceeds and all accounts receivables resulting from the sale of the Products. In connection therewith, Buyer hereby authorizes Seller to take all necessary steps to file such financing statements and exhibits with the proper authorities, including the filing of a UCC-1 financing statement.
Until the Buyer has paid for the Products in full, Buyer shall not pledge, mortgage, encumber, or create or suffer to exist a security interest in the Products in favor of any person other than Seller unless written approval of such other security interest is given by Seller. Additionally, Buyer agrees to keep the Products insured to their full value until payment is received by Seller. In the event Buyer sells the goods to a third party before payment in full is received by Seller, Buyer agrees to secure its security interest in the goods at the time of sale to its customer in order to protect Seller’s interests to the greatest extent possible.
Unless otherwise agreed, all testing and inspection specified by Buyer, implied by the order, or customary to Seller’s practice, shall be at Seller’s works and shall be final. Seller reserves the right to make a reasonable charge therefore.
Unless Seller and carrier receives a written complaint with full particulars from Buyer regarding any defective goods or services, shortage or other complaints within three (3) business days from the date the goods or services are delivered, the goods shall be deemed to have been delivered in good condition and that the delivery is accepted. Unless Seller receives a written complaint with full particulars from Buyer regarding non-delivery, within three (3) days within the delivery date specified by the Seller, or failing such date, the date of the invoice the goods shall be deemed to have been delivered in good condition and that the delivery is accepted.
The goods in respect of which any claim of damage or shortfall is made must be preserved intact (including packing) for a period of fourteen (14) days from Seller’s receipt of notice of the complaint within which time Seller and carrier shall have the right to attend at Buyer’s premises to investigate the claim and inspect the goods.
9. LIMITED WARRANTY OF GOODS AND SERVICES; DAMAGES
Seller warrants, for twelve (12) months after delivery, unless indicated to the contrary, that the goods, services and programs covered by this contract are produced according to usual practices, customs, standards, specifications and tolerances of trade prevailing in the country of origin at the time of production and shall be free from defects in design, material, workmanship and shall conform to the Seller’s specifications. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. ALL OTHER WARRANTIES, AND SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED. Goods showing only minor defects, not affecting the function of the goods or program shall be accepted by the Buyer and shall not give rise to any claim against the Seller. All claims of damages of any kind during delivery are barred unless reported in writing by the Buyer to the Seller, with full disclosure of particulars within five (5) days after delivery as defined herein.
[OR REFERENCE A SEPARATE LIMITED WARRANTY DOCUMENT INSTEAD OF LANGUAGE ABOVE]
Where a defect is discovered within 12 (twelve) months of delivery from the Seller, the Buyer shall be entitled, at Seller's option, to either credit or replacement of the defective product. SELLER SHALL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL, DIRECT OR INDIRECT COSTS OR LOSSES UNDER ANY CIRCUMSTANCES TO THE BUYER, ANY SUCCESSORS IN INTEREST OR ANY BENEFICIARY OR ASSIGNEE OF THESE TERMS. Seller will not replace where the defect is the result of use or handling in a manner, circumstances, or for purposes other than those that have been approved or instructed by the Seller.
The maximum liability of Seller under any circumstances shall be the price actually paid by Buyer to Seller for the good or service that is proven to be defective.
10. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights to, ownership of, and interest in all goods, trademarks, trade names, logos, distinctive marks, designs, and other materials created and/or made available by the Seller hereunder or within the framework of the relationship between Buyer and Seller are vested exclusively in the Seller. The Buyer shall not reproduce, transfer, grant, assign, license or use the goods, distinctive marks, and designs and other materials created and/or made available by the Seller and/or otherwise act as maker of and/or party entitled to such rights, except in accordance with these Terms.
The Buyer shall not remove or alter indications concerning intellectual property rights and concerning the confidential nature of information from goods, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller and goods delivered.
The Buyer shall not alter, or have altered, modify, or have modified, adapted or otherwise reconfigured, the goods, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller.
The Seller will indemnify the Buyer against claims of third parties based on the allegation that by using the Product, the Buyer has infringed the intellectual property rights of such third parties, provided that the Seller is promptly notified in writing and given authority, information and assistance with defense of the claim(s). The Seller, at its option, shall (1) procure the right of Buyer to continue to use the Product, (2) modify the Product so that it becomes non-infringing, (3) replace the Product with non-infringing equipment, or (4) remove the Product and refund the purchase price. The foregoing shall not be construed to include any agreement by the Seller to accept any liability whatsoever with respect to Buyer’s own or third party equipment, documents or materials used in combination with or related to the Product. The foregoing states the entire liability of the Seller with regard to intellectual property infringement. Buyer shall be responsible for effecting and maintaining insurance cover as appropriate in particular in respect of this Section and, upon request, shall provide a copy of the insurance policy and evidence of premiums paid in respect thereof.
Seller makes no warranty concerning the appropriateness of the goods or services to the purposes for which Buyer or its customer are acquiring same. Moreover, Seller makes no warranty that the goods or services or other intellectual property of Seller does not infringe the rights of third parties.
11. CANCELLATION PRIVILEGES
1. Seller may cancel any contract if Buyer is in default of the payment of any obligations pursuant to or any contract between the parties, or if in the sole judgment of Seller, Buyer's financial condition and responsibility has become materially impaired. In addition, Seller shall have the right to recover damages for nonperformance, and any unpaid installments due on account of this or any other contract between the parties shall become immediately due and payable. If the Buyer - validly - cancels the contract, the Buyer will be obliged to compensate the Seller for any costs incurred by the Seller in connection with making the offer and entering into the contract and the damage and/or loss arising from the cancellation.
The Seller will be entitled to terminate the contract unilaterally with immediate effect, fully or in part and/or to suspend performance of its obligations under the contract with immediate effect if:
- the Buyer has failed to fulfill one or more of its obligations under this or any other contract or sales terms;
- Buyer has suspended payments or has sought the protection of the Bankruptcy Courts;
- a petition for the involuntary bankruptcy of the Buyer has been filed;
- make an assignment for the benefit of, or enter into a compromise with its creditors;
- the Buyer’s property on Seller’s premises has been attached in execution;
- a resolution for the dissolution and/or winding up of the Buyer has been adopted;
- the enterprise operated by the Buyer has been fully or partly transferred to a third party without consent of Seller.
The Seller will never be liable with respect to the Buyer for any damages arising from termination of the contract or from the suspension of obligations under the contract for the aforementioned reasons.
If the contract is terminated, performance of the contract already received by the Buyer and the payment obligations of the Buyer in connection with it will remain. At Seller’s option, Seller shall be able to retake and sell any and all goods immediately as stated under Section 4 of these Terms or the amounts invoiced by the Seller for performance prior to or upon termination of the contract shall be immediately due and payable after termination. Buyer agrees to pay any of Seller’s costs, damages, attorneys’ fees and other expenses associated with Seller’s termination of any contract with Buyer pursuant to the terms of this section.
2. No order which has been accepted by Seller may be cancelled by Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify inter alia the Seller in full including, but not limited to, for and against all loss or damage (whether consequential or indirect loss or damage or otherwise), costs (including those of labor and materials used), damages, charges (including forward currency exchange) and expenses incurred by Seller as a result of cancellation.
12. FORCE MAJEURE
If Seller is temporarily unable to perform this Agreement because of any cause whatsoever that is beyond the Seller’s reasonable control including, but not limited to, an act of God; severe weather; war (whether declared or not); civil disturbance; requisitioning; governmental or other authority’s regulations, restrictions or enactments of any kind; import or export regulation; strike, lock-out or trade dispute (whether involving its own employees or those of any other person); power or machinery breakdown, accident, non-availability or delay of vessels or other transport (causes hereinafter referred to as “Force Majeure”), Seller will be entitled to suspend performance of the contract for as long as the Force Majeure lasts. If Seller is permanently unable to perform any of its obligations to Buyer because of Force Majeure, it will be entitled to cancel the specific order with immediate defect and without any damages whatsoever. Buyer agrees to indemnify, defend and hold Seller harmless against any claims made by third parties based on whole or in part on Seller’s inability to perform because of Force Majeure.
No failure or delay on the part of Seller to exercise any right or remedy under any contract governed by these Terms (whether a single or partial or further exercise) shall be construed or operated as a waiver thereof. The rights and remedies provided are cumulative and are not exclusive of any rights or remedies provided by law.
Any notices to be given shall be in writing and be deemed to be given if left at the last known address of Seller or as the case may be, of Buyer (marked for attention of Company Secretary or the individual(s) carrying on the business, as appropriate) or sent to same by first class post, or 6hrs after a receipt of a transmission in legible form if by telex or facsimile, or after delivery, if by hand.
14. GOVERNING LAW
These Terms and all transactions between Seller and Buyer are governed by the laws of the State of Illinois in the United States, without reference to conflict of laws principles. Compliance with any local governmental laws or regulations relating to the location, use or operation of the Products, or its use in connection with other equipment, shall be the sole responsibility of the Buyer.
Any controversy or claim between Seller and Buyer or any controversy or claim otherwise arising out of or relating to the Terms and any agreement subject to these Terms, shall be settled by binding Arbitration in Chicago, Illinois in English according to the rules of the American Arbitration Association. Notwithstanding the foregoing and without having to first enter into an arbitration proceeding, Seller reserves the right to bring suit against Buyer for monies due Seller in the courts of Buyer’s jurisdiction, or where Buyer has assets.
16. ENTIRE AGREEMENT
These Terms constitute the sole terms and conditions of the contract between the Buyer and Seller. No other terms, conditions, or understanding, whether oral or written, shall be binding upon the Seller, unless hereafter made in writing and signed by Seller's authorized representative and, in the case of printed matter, also initialed by such representative next to such printed term or condition.
Should any provision of this Agreement be judicially declared unenforceable, that provision shall be deemed stricken and the remainder shall continue in full force and effect insofar as it remains a workable instrument for effectuating the intents and purposes of the parties. The Parties further agree to renegotiate any so severed provision to bring the same within applicable legal requirements to the greatest extent possible.
The Buyer shall not assign or transfer these Terms or any related contract or purchase order without the prior written consent of the Seller. The Seller shall expressly be permitted to assign or transfer, without the prior written consent of the Buyer, the Seller’s right to receive any or all of the payment due from the Buyer under these Terms.