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GENERAL CONDITIONS OF SALE
FLAMCO GROUP

1. Definitions

1.1 Flamco: Flamco Holding B.V. and all companies Flamco Holding B.V. is affiliated with in a group as referred to in Section 2:24b of the Dutch Civil Code, or in which it has a participating interest as referred to in Section 2:24c of the Dutch Civil Code.

1.2 Client: the Party that concludes or wishes to conclude an Agreement with Flamco.

1.3 Agreement: an agreement for the delivery of movable items (products) and/or the performance of services by Flamco to the Client.

2. Applicability of the General Conditions of Sale

2.1 These General Conditions of Sale shall apply to this Agreement and to all legal acts relating to the formation thereof.

2.2 The applicability of the general terms and conditions of the Client to this Agreement is explicitly rejected.

2.3 Flamco may amend these General Conditions of Sale. The amendments will take effect thirty (30) calendar days after the date on which the amended conditions were sent to the Client by Flamco.

2.4 In the event that one or more provisions of these General Conditions of Sale are void or may be declared void, the other provisions shall still remain in full force and effect. Flamco and the Client then will consult to replace the provisions that are void and/or have been declared void, with new provisions, taking into consideration, to the extent possible, the purpose and intent of the original provision.

3. Offers and formation of Agreements

3.1 Each offer from Flamco, including a price list issued by Flamco is without any obligation.

3.2 An agreement between the Parties will only be concluded after an order from the Client has been confirmed in writing by Flamco, by a representative of Flamco duly authorized for this purpose, or because Flamco without reservation has performed the Agreement in a manner which is clear to the Client. Verbal promises or agreements by or with its personnel shall only bind Flamco after and to the extent that Flamco has confirmed this in writing.

3.3 Confirmations sent by Flamco are considered to reflect the Agreement correctly and completely, barring evidence to the contrary.

3.4 Information provided by Flamco in the form of catalogues, pictures, drawings, weights, tests (samples), dimensions, technical specifications or shipping documents are for information purposes only and do not form part of the Agreement, unless expressly agreed in writing.

3.5 Any additional agreements or amendments to the Agreement and/or commitments relating to the Agreement, made after formation of the Agreement, shall only bind Flamco when confirmed in writing by a representative of Flamco duly authorized for this purpose.

3.6 The Client shall be responsible for providing to Flamco any information which Flamco indicates that it requires, or of which it is reasonably expected that Flamco will require, in good time prior to the provision of any products and/or services. If such information is not provided to Flamco within a reasonable time, Flamco has the right to suspend performance of the Agreement and/or to charge the Client for any extra costs arising as a result of the delay, in accordance with the current rates.

3.7 Any variation to the terms of this Agreement, or any order made pursuant to it, shall only be binding where it is agreed in writing by both parties.

4. Subcontracting and transfer to third parties

Flamco has the right to subcontract its obligations vis-a-vis the Client, in whole or in part. Flamco has the right to transfer the rights and obligations arising from the Agreement with the Client to a third party/third parties.

5. Prices

The prices stated by Flamco are exclusive of VAT, unless the Parties have expressly agreed otherwise in writing.

 

6. Payment and security

6.1 Flamco will invoice on departure of the delivery or simultaneous with the delivery. Unless expressly agreed otherwise in writing, payment shall be made within 30 calendar days of the invoice date. Payment must be made in the currency agreed and without any set-off, discount and/or suspension.

6.2 In the event of late payment of an invoice, the Client, without any notice of default, will be in default and all payment obligations of the Client will immediately become due and payable, without prejudice to the other rights accruing to Flamco. This will also be the case if the Client is declared insolvent or applies for a moratorium.

6.3 In the event of late payment of an invoice, the Client shall pay the statutory commercial interest, plus 2% on the invoice amount, from the due date of the invoice. In addition, all extrajudicial and judicial costs reasonably incurred by Flamco in the context of the non-performance by the Client shall be borne by the Client, such with a minimum of 15% of the principal sum due (including VAT), which minimum payment must (also) be considered to be an incentive for the Client to fulfil its (payment) obligations.

6.4 Payments made by the Client shall first of all serve to settle any payable interest and costs and subsequently the longest outstanding payable invoices, even if the Client should state that the payment is related to a subsequently sent invoice.

6.5 At the time of conclusion of the Agreement or after conclusion of the Agreement, Flamco has the right to require advance payment from the Client or proper security, in whole or in part, for the fulfilment of the obligations of the Client under the Agreement, in the form of a bank guarantee or a reasonably equivalent security and Flamco has the right, until this security has been provided, to suspend its obligations towards the Client.

7. Delivery and risk transfer

7.1 In the event that Flamco shows or provides a drawing, picture, model, design or other information, this shall only serve as an indication. The delivered products may vary from the displayed products.

7.2 Delivery will take place in accordance with the manner set out in the Agreement. The risk will be transferred to the Client the moment Flamco actually makes the products available to the Client.

7.3 The Client shall take delivery of the products at the time of delivery. If the Client refuses to take delivery or fails to provide information or instructions required for delivery, the products will be stored at the risk of the Client. In this case, the Client must pay the storage costs, without prejudice to Flamco’s right to still claim performance and/or full compensation and to proceed to terminate the Agreement.

7.4 The Client, on penalty of forfeiture of rights, shall check the delivered products within 8 working days of delivery, for any shortages or damage, or shall perform this check or have this check performed after notification by Flamco that the goods are at the disposal of the Client. Damaged or incomplete goods will only be taken back by Flamco and (possibly) replaced if these goods have been returned in the original packaging.

8. Partial delivery

Flamco reserves the right to deliver in parts (partial deliveries) which may be invoiced separately. In case of a partial delivery, the Client shall also pay in accordance with the provision of clause 6 of these General Conditions of Sale.

9. Delivery date

9.1 Indication of the delivery date by Flamco is an approximate estimate only and is not considered a final deadline unless expressly agreed otherwise.

9.2 Flamco is in no way liable for exceeding the delivery date, by any cause whatsoever. Exceeding the delivery date does not make Flamco liable to pay any compensation and does not give the Client the right to terminate the Agreement and/or to refuse to take delivery and/or to invoke suspension.

10. Force majeure

10.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (‘Force Majeure Event’). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for six (6) consecutive calendar months, the party not affected by the Force Majeure Event may terminate this Agreement by giving ten (10) days' written notice to the affected party.

10.2 Flamco retains the right to claim for payment for the work already carried out in the performance of the Agreement, before the Force Majeure Event became evident.

11. Retention of Title

11.1 The risk of damage to or loss of any goods shall pass to the Client on completion of delivery.

11.2 Title to any goods shall pass to the Client only on payment in full (cash or cleared funds) for such goods.

11.3 Until title in the goods has transferred to the Client, the Client shall:

11.3.1 not pledge the goods or grant any rights to the goods to any third party, subject to clause 11.4;

11.3.2 store the goods separately from all other goods held by the Client, so that they remain readily identifiable as Flamco’s property;

11.3.3 not remove, deface or obscure any identifying mark or packaging relating to the goods and store them with reasonable care and skill; and

11.3.4 maintain the goods in satisfactory condition and insure the goods against all risks for their full price from the date of delivery.

11.4 The Client is authorized to sell and transfer the goods delivered under retention of title to third parties, acting in the ordinary course of its business. When selling on credit the Client shall require from its customers that the goods shall remain subject to retention of title in accordance with the provisions of this provision.

11.5 Flamco retains the right, at any time prior to the transfer of title in any goods to:

11.5.1 require the Client to deliver up all goods in its possession that have not been resold, or irrevocably incorporated into another product; and/or

11.5.2 enter any premises of the Client or of any third party where the goods are stored, in order to inspect or recover the goods; and/or

11.5.3 recover any reasonable costs incurred in inspecting or recovering the goods.

12. Guarantee

12.1 With due observance of the following restrictions and the other provisions of these General Conditions of Sale, Flamco guarantees that the goods delivered and/or the materials used by Flamco possess the qualities according to their specifications, during the period as described in clause 12.2 per product group, commencing at the time Flamco effectively puts the goods at the disposal of the Client. When providing the services, Flamco guarantees that when performing these services due care will be taken.

12.2

Technology

 

Product group

Period

Pressurization & Storage Technology (PST) Group 1

 

Flexcon expansion vessels

5 years

 

Flexcon C expansion vessels

 

3 years

 

Flexcon top expansion vessels

7 years

 

Airfix A and D expansion vessels

 

5 years

 

Cubex and Contraflex expansion vessels

 

2 years

 

own brand expansion vessels

1 year

(2 years, if local law requires a minimum of 2 years)

 

 

Airfix P expansion vessels

2 years

 

 

Flexcon VSV and VB intermediate vessels

 

5 years

Energy efficiency & safety technology (EST) fittings

 

safety valves, connection groups

5 years

 

ventilation, equipment for deaeration and dirt separation

 

5 years

 

own brand products

1 year

(2 years, if local law requires a minimum of 2 years)

 

 

T-plus

5 years

 

Fixing technology (FT)

 

Flamco Falx

10 years

 

Other Flamco assembly material                        

10 years

Pressurization & Storage Technology (PST) Group 2

  • Flamco compressor
    expansion machines
  • Flamco pump machines
  • Flexcon M expansion vessels
  • Flexcon PRO expansion vessels
  • Airfix DE, DEL and DEB expansion vessels
  • Flamco water replenishment and venting machines ENA
  • Flamco water replenishers
  • Flamco water heaters and storage vessels

 

-          rusting from the inside out of the vessels: 5 years

-          parts subject to wear, such as pumps, membranes and measuring devices: reducing reimbursements for replacement parts (reimbursement of 100% for the first year, 70% for the second year, 35% for the third year)

-          electrical parts such as the control system: 1 year

12.3 If the Client makes a claim against Flamco under any guarantee provided in respect of any goods supplied pursuant to this Agreement, Flamco, at its option and without prejudice to the other provisions of this Agreement, shall either replace the delivered goods or terminate the Agreement (in whole or in part) with a pro-rata refund of the payment already made by the Client, without any obligation to pay damages. Costs of materials, call-out charges and installation costs are explicitly excluded from any and all warranties provided in respect of any goods supplied by Flamco.

12.4 Without prejudice to the provisions of this clause, the aforementioned guarantee obligations will lapse if:

12.4.1 the delivered goods have not been put into operation by Flamco or a qualified firm of fitters in accordance with the accompanying installation conditions;

12.4.2 the fitter engaged has not complied with the applicable legislation and regulations;

12.4.3 the Client has used the delivered goods for a purpose other than the designated use;

12.4.4 the Client (in Flamco’s reasonable opinion) has handled, used or maintained the delivered goods in an improper manner;

12.4.5 there is normal wear and tear;

12.4.6 defects in the delivered goods are the result of any government regulations relating to the nature or the quality of the materials used;

12.4.7 the Client fails to fulfil its obligations towards Flamco;

12.4.8 the Client makes a changes or changes to, or repairs, the delivered goods or has changes or repairs made by third parties, without prior written permission from Flamco; and

12.4.9 the defects in the delivered goods are otherwise, in whole or in part, attributable to the Client.

12.5 Any labour costs, costs of disassembly, shipment and transport will be for the account and risk of the Client. Products or parts of products, to be repaired or replaced by Flamco, shall be sent postage paid to Flamco by the Client, after obtaining Flamco’s written permission. Products that have been returned and are found not to be defective, will be returned to the Client for the account of the Client and Flamco’s costs for investigating the complaint shall also be charged to the Client.

12.6 Upon replacement of delivered goods, the original guarantee period will only be extended by the period during which the Client as a result of the repair or the replacement did not have the defective good at its disposal.

12.7 A guarantee claim does not give the Client any right to suspend any obligation towards Flamco.

12.8 In the event of sale of finished goods – goods purchased by Flamco and delivered unprocessed – the goods will be sold in the condition they are in. In respect thereof, Flamco does not provide any guarantee and does not accept any liability, unless expressly agreed otherwise in writing and then only if, and to the extent that, the relevant manufacturer/supplier provides guarantee and only to the extent the manufacturer/supplier provides guarantee.

12.9 If in the context of the performance of the Agreement by Flamco parts are outsourced to third parties under stricter conditions than these General Conditions of Sale, Flamco may enforce, for the outsourced part of the Agreement, the same stricter conditions against the Client.

13. Complaints

13.1 Complaints shall be submitted, on penalty of forfeiture of rights, in writing and as soon as possible, but no later than, and with due regard to, the period referred to in clause 7.4, within 8 working days after the defects have been discovered or reasonably should have been discovered, specifying the nature and the basis of the complaint/complaints.

13.2 Complaints about the services provided shall be reported in writing to Flamco by the Client, within 8 working days of discovery, but no later than 10 working days after completion of the relevant services.

13.3 When the abovementioned period has expired, the Client is deemed to have approved the delivery. In that case, complaints will no longer be handled by Flamco.

14. Liability

14.1 Nothing in this Agreement shall limit or exclude either party’s liability for:

14.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or its subcontractors (as applicable);

14.1.2 fraud or fraudulent misrepresentation; and

14.1.3 any matter in respect of which it would be unlawful for either party to exclude or restrict liability.

14.2 Subject to clause 14.1, Flamco shall, under no circumstances whatsoever, be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of goodwill, profit, revenue, or anticipated savings, or any loss that is an indirect or secondary consequence of any act or omission of the Client.

14.3 Subject to the provisions of clause 14.1, Flamco’s total liability to the Client in respect of all other loss or damage arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £800,000 (eight hundred thousand pounds sterling) in aggregate in any calendar year.

14.4 Any claim against Flamco by the Client, pursuant to this Agreement, will be time barred in the event that the Client fails to notify Flamco in writing of the claim within a period of twelve (12) months of the circumstances surrounding the claim arising. The expiry period will commence on the day following the day on which the Client has become aware of both the damage and the liable party.

14.5 Conditions restricting, excluding or determining liability that may be invoked by third parties against Flamco, may also be invoked by Flamco against the Client.

15. Indemnification

The Client shall indemnify Flamco, its personnel and any third parties engaged by Flamco in the context of the performance of its obligations arising from the Agreement, against any claims made by other third parties for payment of any damage (allegedly) incurred by the last-named, caused by or otherwise related to the performance delivered by Flamco under the Agreement.

16. “Product recall”

16.1 The Client shall act in respect of the Products delivered (or resold) by Flamco, in accordance with the applicable requirements of product safety.

16.2 The Client shall cooperate as requested by Flamco if Flamco, whether or not on the basis of European or Dutch regulations, wishes to proceed with a measure in the field of product safety, for instance a public warning or a product recall.

16.3 The Client shall not proceed to take a measure in the field of product safety, for instance a public warning, a product recall or informing a competent authority, without the prior written consent of Flamco.

16.4 In order to enable any public warning or product recall, the Client shall always keep records of the amounts of products delivered and also to whom and when these deliveries of the products delivered by Flamco were made.

17. Intellectual property rights

17.1 All intellectual property rights (including, but not limited to, copyrights and design rights both registered and unregistered) to drawings, photographs, catalogues, models, designs, calculations and the like made available to the Client by Flamco (hereinafter referred to as: "the Materials”) will always be vested in Flamco and will never be transferred to the Client. Where these General Conditions of Sale refer to “deliver” or conjugations of this word this cannot be taken to mean that transfer of intellectual property rights is intended. The Client is only granted a non-exclusive, non-transferable and revocable right to use the Materials in an unaltered form and for its own use, which right furthermore does not exceed the specifically agreed use and/or the use that is reasonably required within the context of the performance of the Agreement.

17.2 Without prejudice to the generality of this clause 17.2, it is in particular expressly not allowed for the Client to copy and/or edit the content (including photographs) of catalogues made available by Flamco. If and insofar as Flamco put digital photographs at the disposal of the Client, the use of these photographs is only allowed for the purposes specifically specified by Flamco and the use hereof on any website is prohibited unless Flamco has explicitly granted its prior written consent. Flamco has the right to withdraw its permission to use the Materials at any time, with immediate effect, without becoming liable towards the Client and in this event the Client shall immediately return the Materials to Flamco.

17.3 The Client is not allowed to place its own photographs or drawings of products originating from Flamco on the Internet.

17.4 If and insofar as it is ascertained at law that the products delivered to the Client by Flamco infringe any copyright and/or design right of any third parties, Flamco will take back the products against reimbursement of the purchase price paid by the Client. Said reimbursement of the purchase price is the sole remedy of the Client in this respect.

18. Confidentiality

18.1 Each party undertakes that it shall not at any time during this Agreement and for a period of two (2) years after termination disclose to any person any confidential information concerning the business, affairs, customer, clients or suppliers of the other party or of any member of its group, including information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (Confidential Information), except as permitted by clause 18.2.

18.2 Each party may disclose the other party’s Confidential Information:

18.2.1 to its employees, officers, agents, consultants or subcontractors (Representatives) who need to know such information for the purposes of carrying out the party's obligations under this Agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 18 as though they were a party to this Agreement. The disclosing party shall be responsible for its Representatives' compliance with the confidentiality obligations set out in this clause; and

18.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

18.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party or to be implied from this Agreement. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future.

19. Termination and cancellation

19.1 The Agreement takes effect on the date stated at the beginning of it, and shall continue, subject to the provisions of clauses 19.2, until terminated by either party giving at least six (6) months' prior written notice to the other party.

19.2 Without affecting any other rights or remedies to which it may be entitled, Flamco may terminate this Agreement forthwith at any time upon the Client breaching any provisions of clauses 8 or 9 of the Framework Agreement.

19.3 Without affecting any other rights or remedies to which it may be entitled, either party may give notice in writing to the other terminating this Agreement immediately if:

19.3.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default for more than seven (7) days after being notified in writing to make such payment; or

19.3.2 the other party commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if that breach is remediable) fails to remedy that breach within a period of fourteen (14) days of being notified in writing to do so; or

19.3.3 the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or

19.3.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or

19.3.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or

19.3.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or

19.3.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or

19.3.8 a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or

19.3.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or

19.3.10 the other party passes a resolution for its winding-up or a court of competent jurisdiction making an order for the other party's winding up or dissolution; or

19.3.11 the other party, being an individual, is the subject of a bankruptcy petition or order; or

19.3.12 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days; or

19.3.13 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 19.3.4 to clause 19.3.12 (inclusive); or

19.3.14 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

19.3.15 the other party, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

20. Non-assignment and prohibition on pledging

The Client does not have the right to encumber or transfer any rights or obligations under the Agreement without the prior written consent of Flamco.

21. Jurisdiction and Governing Law

The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.