1. These General Terms & Conditions shall apply when the parties agree in writing or otherwise thereto. When the General Terms & Conditions apply to a specific contract, modifications of or deviations from them must be agreed in writing.
The object(s) to be supplied under these General Terms & Conditions is (are) hereinafter referred to as the Product.
Wherever these General Terms & Conditions use the term in writing, this shall mean by document signed by the parties, or by letter, fax, electronic mail and by such other means as are agreed by the parties.
FORMATION OF CONTRACT
A Contract shall be deemed to have been entered into when upon receipt of an order, Flintec (UK) Limited has sent an acceptance in writing within the time limit (if any) fixed by the Purchaser.
If Flintec (UK) Limited, in drawing up his tender, has fixed a time-limit for acceptance. the Contract shall be deemed to have been entered into when the Purchaser has sent an acceptance in writing before the expiration of such time-limit, provided that there shall be no binding Contract unless the acceptance reaches Flintec (UK) Limited not later than one week alter the expiration of such time limit.
2. All information and data contained in general product documentation and price lists, whether in electronic or any other form, are binding only to the extent that they are by reference expressly included in the contract.
DRAWINGS AND DESCRIPTIONS
3. All drawings and technical documents relating to the Product or its manufacture submitted by Flintec (UK) Limited to the Purchaser prior or subsequent to the formation of the contract, shall remain the property of Flintec (UK) Limited
Drawings, technical documents or other technical information received by the Purchaser shall not, without the consent of the other party, be used for any other purpose than that for which they were provided. They may not, without the consent of the submitting party, otherwise be used or copied, reproduced, transmitted or communicated to a third party.
4. Flintec (UK) Limited shall, not later than at the date of delivery, provide free of charge information and drawings which are necessary to permit the Purchaser to erect, commission, operate and maintain the Product. Such information and drawings shall be supplied in the number of copies agreed upon or at least one copy of each. Flintec (UK) Limited shall not be obliged to provide manufacturing drawings for the Product or for spare parts.
5. Acceptance tests provided for in the contract shall, unless otherwise agreed, be carried out at the place of manufacture during normal working hours.
If the contract does not specify the technical requirements, the tests shall be carried out in accordance with general practice in the appropriate branch of industry concerned in the country of manufacture.
6. Flintec (UK) Limited shall notify the Purchaser in writing of the acceptance tests in sufficient time to permit the Purchaser to be represented at the tests. If the Purchaser is not represented, the test report shall be sent to the Purchaser and shall be accepted as accurate.
7. If the acceptance tests show the Product not to be in accordance with the contract, Flintec (UK) Limited shall without delay remedy any deficiencies in order to ensure that the Product complies with the contract. New tests shall then be carried out at the Purchaser’s request, unless the deficiency was insignificant.
8. Flintec (UK) Limited shall bear all costs for acceptance tests carried out at the place of manufacture. The Purchaser shall however bear all travelling and living expenses for his representatives in connection with such tests.
DELIVERY. PASSING OF RISK
9. Any agreed trade term shall be construed in accordance with the INCOTERMS in force at the formation of the contract.
If no trade term is specifically agreed, the delivery shall be Ex works (EXW).
If, in the case of delivery Ex works, Flintec (UK) Limited, at the request of the Purchaser, undertakes to send the Product to its destination, the risk will pass not later than when the Product is handed over to the first carrier.
Partial shipments shall be permitted unless otherwise agreed.
TIME FOR DELIVERY. DELAY
10. If the parties, instead of specifying the date for delivery, have specified a period of time on the expiry of which delivery shall take place, such period shall start to run as soon as the contract is entered into, all official formalities have been completed, payments due at the formation of the contract have been made, any agreed securities have been given and any other preconditions have been fulfilled.
11. If Flintec (UK) Limited anticipates that he will not be able to deliver the Product at the time for delivery, he shall forthwith notify the Purchaser thereof in writing, stating the reason, and, if possible, the time when delivery can be expected.
If Flintec (UK) Limited fails to give such notice, the Purchaser shall be entitled to compensation for any additional costs which he incurs and which he could have avoided had he received such notice.
12. If delay in delivery is caused by any of the circumstances mentioned in Clause 39 or by an act or omission on the part of the Purchaser, including suspension under Clauses 20 or 42, the time for delivery shall be extended by a period which is reasonable having regard to all the circumstances in the case. This provision applies regardless of whether the reason for the delay occurs before or after the agreed time for delivery.
13. If the Product is not delivered at the time for delivery (as defined in Clauses 10 and 12), the Purchaser is entitled to liquidated damages from the date on which delivery should have taken place.
The liquidated damages shall be payable at a rate of 0.5 per cent of the purchase price for each completed week of delay. The liquidated damages shall not exceed 7.5 per cent of the purchase price.
If only part of the Product is delayed, the liquidated damages shall be calculated on that part of the purchase price which is attributable to such part of the Product as cannot in consequence of the delay be used as intended by the parties.
The liquidated damages become due at the Purchaser’s demand in writing but not before delivery has been completed or the contract is terminated under Clause 14.
The Purchaser shall forfeit his right to liquidated damages if he has not lodged a claim in writing for such damages within six months after the time when delivery should have taken place.
14. If the delay in delivery is such that the Purchaser is entitled to maximum liquidated damages under Clause 13 and if the Product is still not delivered, the Purchaser may in writing demand delivery within a final reasonable period which shall not be less than one week.
If Flintec (UK) Limited does not deliver within such final period and this is not due to any circumstance for which the Purchaser is responsible, then the Purchaser may by notice in writing to Flintec (UK) Limited terminate the contract in respect of such part of the Product as cannot in consequence of Flintec (UK) Limited’s failure to deliver be used as intended by the parties.
If the Purchaser terminates the contract he shall be entitled to compensation for the loss he has suffered as a result of Flintec (UK) Limited’s delay. The total compensation, including the liquidated damages which are payable under Clause 13, shall not exceed 15 per cent of that part of the purchase price which is attributable to the part of the Product in respect of which the contract is terminated.
The Purchaser shall also have the right to terminate the contract by notice in writing to Flintec (UK) Limited, if it is clear from the circumstances that there will occur a delay in delivery which, under Clause 13 would entitle the Purchaser to maximum liquidated damages.
In case of termination on this ground, the Purchaser shall be entitled to maximum liquidated damages and compensation under the third paragraph of this Clause 14.
15. Liquidated damages under Clause 13 and termination of the contract with limited compensation under Clause 14 are the only remedies available to the Purchaser in case of delay on the part of Flintec (UK) Limited. All other claims against Flintec (UK) Limited based on such delay shall be excluded, except where Flintec (UK) Limited has been guilty of gross negligence.
In these General Terms & Conditions gross negligence shall mean an act or omission implying either a failure to pay due regard to serious consequences, which a conscientious supplier would normally foresee as likely to ensue, or a deliberate disregard of the consequences of such act or omission.
16. If the Purchaser anticipates that he will be unable to accept delivery of the Product at the delivery time, he shall forthwith notify Flintec (UK) Limited in writing thereof, stating the reason and, if possible, the time when he will be able to accept delivery.
If the Purchaser fails to accept delivery at the delivery time, he shall nevertheless pay any part of the purchase price which becomes due on delivery, as if delivery had taken place. Flintec (UK) Limited shall arrange for storage of the Product at the risk and expense of the Purchaser. Flintec (UK) Limited shall also, if the Purchaser so requires, insure the Product at the Purchaser’s expense.
17. Unless the Purchaser’s failure to accept delivery is due to any such circumstance as mentioned in Clause 39, Flintec (UK) Limited may by notice in writing require the Purchaser to accept delivery within a final reasonable period.
If, for any reason for which Flintec (UK) Limited is not responsible, the Purchaser fails to accept delivery within such period, Flintec (UK) Limited may by notice in writing terminate the contract in whole or in part. Flintec (UK) Limited shall then be entitled to compensation for the loss he has suffered by reason of the Purchaser’s default. The compensation shall not exceed that part of the purchase price which is attributable to that part of the Product in respect of which the contract is terminated.
18. Payment will be made in the manner and at the time or times agreed by the Parties. In the absence of any agreement, payments shall be made within 30 days of the date of the invoice.
19. Whatever the means of payment used, payment shall not be deemed to have been effected before Flintec (UK) Limited’s account has been fully and irrevocably credited.
20. If the Purchaser fails to pay by the stipulated date, Flintec (UK) Limited shall be entitled to interest from the day on which payment was due. The rate of interest shall be as agreed between the parties. If the parties fail to agree on the rate of interest, it shall be 8 percentage points above the rate of the main refinancing facility of the European Central Bank in force on the due date of payment.
In case of late payment Flintec (UK) Limited may, after having notified the Purchaser in writing, suspend his performance of the contract until he receives payment.
If the Purchaser has not paid the amount due within three months Flintec (UK) Limited shall be entitled to terminate the contract by notice in writing to the Purchaser and to claim compensation for the loss he has incurred. The compensation shall not exceed the agreed purchase price.
RETENTION OF TITLE
21. The Product shall remain the property of Flintec (UK) Limited until paid for in full to the extent that such retention of title is valid under the applicable law.
The Purchaser shall at the request of Flintec (UK) Limited assist him in taking any measures necessary to protect Flintec (UK) Limited’s title to the Product in the country concerned.
The retention of title shall not affect the passing of risk under Clause 9.
LIABILITY FOR DEFECTS
22. Pursuant to the provisions of Clauses 23-37 inclusive, Flintec (UK) Limited shall remedy any defect or nonconformity (hereinafter termed defect(s)) resulting from faulty design, materials or workmanship.
23. Flintec (UK) Limited’s liability is limited to defects which appear within a period of one year from delivery. If the daily use of the Product exceeds that which is agreed, this period shall be reduced proportionately.
24. When a defect in a part of the Product has been remedied, Flintec (UK) Limited shall be liable for defects in the repaired or replaced part under the same terms and conditions as those applicable to the original Product for a period of one year. For the remaining parts of the Product the period mentioned in Clause 23 shall be extended only by a period equal to the period during which the Product has been out of operation as a result of the defect.
25. The Purchaser shall without undue delay notify Flintec (UK) Limited in writing of any defect which appears. Such notice shall under no circumstance be given later than two weeks after the expiry of the period given in Clause 23.
The notice shall contain a description of the defect.
If the Purchaser fails to notify Flintec (UK) Limited in writing of a defect within the time limits set forth in the first paragraph of this Clause, he loses his right to have the defect remedied.
Where the defect is such that it may cause damage, the Purchaser shall immediately inform Flintec (UK) Limited in writing. The Purchaser shall bear the risk of damage resulting from his failure so to notify.
26. On receipt of the notice under Clause 25 Flintec (UK) Limited shall remedy the defect without undue delay and at his own cost as stipulated in Clauses 22-37 inclusive.
Repair shall be carried out at the place where the Product is located unless Flintec (UK) Limited deems it appropriate that the defective part or the Product is returned to him for repair or replacement.
Flintec (UK) Limited is obliged to carry out dismantling and re-installation of the part if this requires special knowledge. If such special knowledge is not required, Flintec (UK) Limited has fulfilled his obligations in respect of the defect when he delivers to the Purchaser a duly repaired or replaced part.
27. If the Purchaser has given such notice as mentioned in Clause 25 and no defect is found for which Flintec (UK) Limited is liable, Flintec (UK) Limited shall be entitled to compensation for the costs he has incurred as a result of the notice.
28. The Purchaser shall at his own expense arrange for any dismantling and reassembly of equipment other than the Product, to the extent that this is necessary to remedy the defect.
29. Unless otherwise agreed, necessary transport of the Product and/or parts thereof to and from Flintec (UK) Limited in connection with the remedying of defects for which Flintec (UK) Limited is liable shall be at the risk and expense of Flintec (UK) Limited. The Purchaser shall follow Flintec (UK) Limited’s instructions regarding such transport.
30. Unless otherwise agreed, the Purchaser shall bear any additional costs which Flintec (UK) Limited incurs for repair, dismantling, installation and transport as a result of the Product being located in a place other than the destination stated in the contract or – if no destination is stated – the place of delivery.
31. Defective parts which have been replaced shall be made available to Flintec (UK) Limited and shall be his property.
32. If, within a reasonable time, Flintec (UK) Limited does not fulfil his obligations under Clause 26, the Purchaser may by notice in writing fix a final time for completion of Flintec (UK) Limited’s obligations.
If Flintec (UK) Limited fails to fulfil his obligations within such final time, the Purchaser may himself undertake or employ a third party to undertake necessary remedial works at the risk and expense of Flintec (UK) Limited.
Where successful remedial works have been undertaken by the Purchaser or a third party, reimbursement by Flintec (UK) Limited of reasonable costs incurred by the Purchaser shall be in full settlement of Flintec (UK) Limited’s liabilities for the said defect.
33. Where the defect has not been successfully remedied, as stipulated under Clause 32,
a) the Purchaser is entitled to a reduction of the purchase price in proportion to the reduced value of the Product, provided that under no circumstance shall such reduction exceed 15 per cent of the purchase price, or
b) where the defect is so substantial as to significantly deprive the Purchaser of the benefit of the contract, the Purchaser may terminate the contract by notice in writing to Flintec (UK) Limited. The Purchaser is then entitled to compensation for the loss he has suffered up to a maximum of 15 per cent of the purchase price.
34. Flintec (UK) Limited is not liable for defects arising out of materials provided, or a design stipulated or specified by the Purchaser.
35. Flintec (UK) Limited is liable only for defects which appear under the conditions of operation provided for in the contract and under proper use of the Product.
Flintec (UK) Limited’s liability does not cover defects which are caused by faulty maintenance, incorrect erection or faulty repair by the Purchaser, or by alterations carried out without Flintec (UK) Limited’s consent in writing.
Finally Flintec (UK) Limited’s liability does not cover normal wear and tear or deterioration.
36. Notwithstanding the provisions of Clauses 22-35 Flintec (UK) Limited shall not be liable for defects in any part of the Product for more than two years from the beginning of the period given in Clause 23.
37. Save as stipulated in Clauses 22-36, Flintec (UK) Limited shall not be liable for defects. This applies to any loss the defect may cause including loss of production, loss of profit and other indirect loss. This limitation of Flintec (UK) Limited’s liability shall not apply if he has been guilty of gross negligence as defined in Clause 15.
ALLOCATION OF LIABILITY FOR DAMAGE CAUSED BY THE PRODUCT
38. Flintec (UK) Limited shall not be liable for any damage to property caused by the Product after it has been delivered and whilst it is in the possession of the Purchaser. Nor shall Flintec (UK) Limited be liable for any damage to products manufactured by the Purchaser, or to products of which the Purchaser’s products form a part.
If Flintec (UK) Limited incurs liability towards any third party for such damage to property as described in the preceding paragraph, the Purchaser shall indemnify, defend and hold Flintec (UK) Limited harmless.
If a claim for damage as described in this Clause is lodged by a third party against one of the parties, the latter party shall forthwith inform the other party thereof in writing.
Flintec (UK) Limited and the Purchaser shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Product.
The limitation of Flintec (UK) Limited’s liability in the first paragraph of this Clause shall not apply where Flintec (UK) Limited has been guilty of gross negligence as defined in Clause 15.
39. Either party shall be entitled to suspend performance of his obligations under the contract to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: industrial disputes and any other circumstance beyond the control of the parties such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Clause.
A circumstance referred to in this Clause whether occurring prior to or after the formation of the contract shall give a right to suspension only if its effect on the performance of the contract could not be foreseen at the time of the formation of the contract.
40. The party claiming to be affected by Force Majeure shall notify the other party in writing without delay on the intervention and on the cessation of such circumstance.
If Force Majeure prevents the Purchaser from fulfilling his obligations, he shall compensate Flintec (UK) Limited for expenses incurred in securing and protecting the Product.
41. Regardless of what might otherwise follow from these General Terms & Conditions, either party shall be entitled to terminate the contract by notice in writing to the other party if performance of the contract is suspended under Clause 39 for more than six months.
42. Notwithstanding other provisions in these General Terms & Conditions regarding suspension, each party shall be entitled to suspend the performance of his obligations under the contract, where it is clear from the circumstances that the other party will not be able to perform his obligations. A party suspending his performance of the contract shall forthwith notify the other party thereof in writing.
43. Save as otherwise stated in these General Terms & Conditions there shall be no liability for either party towards the other party for loss of production, loss of profit, loss of use, loss of contracts or for any other consequential or indirect loss whatsoever.
DATA PROTECTION LEGISLATION
44. Each party shall comply with its obligations under Data Protection Legislation in respect of personal data processed by each party.
In processing any personal data, both parties shall:
- Only process personal data in accordance with specific instructions from the other party.
- Not disclose any personal data to any third party, without the other party’s prior written consent.
- Implement appropriate technical and organisational measures to maintain security of such personal data.
- Notify each other, in writing and without delay within 24 hours of discovery of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data in their control.
- Provide full cooperation and assistance to the other party, in relation to any request by a data subject to have access to personal data held about them or in relation to any other request. If the data subject requires the data to be deleted then it should be done at their request.
- Not process any personal data outside the European Economic Area or a country not deemed to provide an adequate level of protection for personal data by any competent authority without the prior written consent of either party.
DISPUTES AND APPLICABLE LAW
45. All disputes arising out of or in connection with the contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules.
46. The contract shall be governed by the substantive laws of England.