TERMS AND CONDITIONS OF SALE
For the purposes of these Stipulated Terms of Sale ("Stipulated Terms"), the term "Agreement" shall mean the agreement between Flow Network and its customer ("Customer") resulting from Customer's submitting, and Flow Network accepting, an order for Flow Network's goods ("Goods") or services ("Services") (collectively, "Goods or Services"). Such Agreement shall be deemed to incorporate and be governed by these Stipulated Terms. THESE STIPULATED TERMS SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS WHICH MAY BE FOUND IN OR ON CUSTOMER'S ORDER OR IN ANY WRITTEN MATERIALS REFERRED TO IN CUSTOMER'S ORDER. No different or additional terms or conditions in Customer's order shall form part of the Agreement and are hereby rejected unless Flow Network expressly agrees to them in writing. If Customer retains Goods or Services received from Flow Network, or pays any invoice rendered to it for such Goods or Services, Buyer shall be conclusively deemed to have accepted these Stipulated Terms. Any failure by Flow Network to object to any provision found in any Customer order, correspondence or other communication shall not be construed as Flow Network agreeing to be bound by such provision or as a waiver of these Stipulated Terms.
1. Quotations: Any quotations furnished by Flow Network regarding price, specifications or delivery dates in respect of its Goods or Services are provided for informational purposes only and will not be binding on Flow Network until Flow Network has accepted Customer's order and agreed on all technical requirements. Goods or Services quotations will terminate if Customer does not accept them within 30 days. All product descriptions, drawings, and any other information about its Goods or Services contained in Flow Network's sale and marketing materials, such as brochures, catalogues, price sheets, advertisements and other literature are offered as a general description, are approximate only and for the general guidance and information of the Customer. Such information shall not constitute any express or implied warranties or representations about the Goods or Services nor shall they form part of any Agreement.
2. Orders: In placing an order with Flow Network, Customer agrees that its order will be subject to these Stipulated Terms in their entirety. All orders must be bona fide commitments showing definite prices and quantities and mutually agreed shipping or service delivery dates. No order shall be binding upon Flow Network unless and until the order has been accepted by Flow Network, even if submitted in response to a quotation by Flow Network. Customer may cancel or reschedule orders that have been accepted by Flow Network only with the written consent of Flow Network and upon payment of Flow Network's then-existing cancellation or rescheduling charges. Flow Network shall have the right, without penalty or payment, to cancel any accepted order: (i) if Customer fails to make any payment when due to Flow Network under any invoice or order, (ii) if any act or omission of Customer unreasonably interferes with or delays Flow Network's performance, or (iii) if Customer violates any of these Stipulated Terms. In the event of such cancellation, Flow Network shall be entitled to receive payment for its reasonable and proper cancellation charges.
3. Order Cancellation: Customer may cancel or reschedule orders that have been accepted by Flow Network and not yet shipped only with the written consent of Flow Network and upon payment of Flow Network's then-existing cancellation or rescheduling charges.
Prices and Taxes: Prices are exclusive of all federal, state or local taxes applicable to Goods or Services sales, such as but not limited to sales, use or excise taxes, whether now existing or hereafter imposed. Such taxes may be added by Flow Network to the sales price or billed separately and shall be paid by Customer.
4. Shipment and Delivery: All tangible goods will be shipped F.O.B. carrier at Flow Network's premises in one or more lots, as determined by Flow Network. Unless specified otherwise by Customer and agreed by Flow Network, Flow Network will select the carrier and ship freight prepaid and charge Customer for the cost thereof, but in doing so Flow Network shall not be deemed to have assumed any liability in connection with the shipment. In no event shall any carrier be deemed to be the agent of Flow Network. Unless specified otherwise by Customer and agreed by Flow Network, Flow Network will insure the shipment at its full value and charge Customer for the cost thereof. On an international shipment, Customer must provide its own insurance unless otherwise specified by Customer and agreed by Flow Network. All risk of loss or damage to Goods sold hereunder, and title to such Goods, shall pass to Customer upon delivery thereof by Flow Network to the possession of the carrier, provided, however, that Flow Network reserves to itself a purchase money security interest in the Goods to secure payment of the price. Any claims for loss, damage or failure of delivery shall thereafter be asserted solely against the carrier. All Goods shall be conclusively deemed to have been fully inspected and accepted ten days after delivery unless before then notice of rejection is given in writing to Flow Network. Such acceptance shall constitute acknowledgment of Flow Network's full performance of all of its obligations under the Agreement except as stated otherwise in the Warranty section (Section 8).
5. Payment Terms: Each shipment shall be treated as a separate transaction and Customer will be invoiced on date of shipment. Unless otherwise provided for in Flow Network's invoice, payment terms for Goods or Services shall be net thirty (30) days from date of invoice. All invoices must be paid in full without any deduction, withholding, setoff or counterclaim. Flow Network shall have the right to require advance payment, and, if such requirement is not satisfied, Flow Network may cancel the order or any remaining part of the order, and charge reasonable cancellation fees which Customer agrees to pay. In the event Customer fails to pay any amount due hereunder when due, Flow Network may also recover, in addition to the amount due, interest thereon at the rate of 1.5% per month or, if less, the maximum lawful monthly interest rate that may be charged, together with its reasonable attorney's fees incurred.
6. Credits and Returns: Customer may return Goods only after obtaining a Return Materials Authorization form from Flow Network. Flow Network will have the sole discretion to determine the cause and responsibility for Goods returned to it. Credit for returned Goods other than those noted below will be at the sole discretion of Flow Network and to be eligible for credit must be:
a. On the current price list and be of current design
b. Unused and in their original packaging
c. In salable condition as determined by Flow Network
d. Returned freight prepaid
e. Standard stock items
Restocking fee for all products:
a. The minimum restocking fee is $35 per unit.
b. The amount of credit allowed for returned qualifying product will depend upon its age.
c. A credit of 75% will be issued for product up to 60 days old.
d. A credit of 50% will be issued for product up to 180 days old.
e. No credit will be issued for product older than 180 days old.
7. Product Changes: Flow Network may modify its product specifications provided the modifications do not adversely affect the performance of the Goods to be supplied under the Agreement. In addition, Flow Network may provide suitable substitutes for materials that are unobtainable or in short supply due to governmental regulation, supplier shortages or other reasons.
8. Product Warranties; Limitations; Exclusions:
A. Flow Network warrants that all Goods shall be free from defects in material and workmanship under normal use for the period of time provided in Flow Network's standard warranty terms as found from time to time on its website (www.flow-network.com) at the time of shipment of the Goods. It shall be Customer's responsibility to determinine that Goods ordered by it is suitable for Customer's use and that such use complies with any applicable local, state or federal law. If Customer gives Flow Network written notice of any claimed defect in the Goods immediately upon discovery, obtains a return authorization as provided above, and any such Goods are returned to the original shipping point, transportation charges prepaid, within the relevant warranty period, and Flow Network determines to its satisfaction that such Goods are defective in material or workmanship, then Flow Network shall, at its option, repair or replace the Goods and pay the cost of return freight. Flow Network shall have reasonable time to make such repairs or to replace such Goods. Any repair or replacement of Goods shall not extend the warranty period. This warranty is limited to the period of time stated in Flow Network's standard warranty terms, as provided for above, without regard to whether any claimed defects were discoverable or latent on the date of shipment. Flow Network's warranty applies only to defects that arise out of the manufacture of the Goods and not to defects arising from other circumstances, such as, but not limited to, accident, misuse, unforeseeable use, neglect, alteration, or improper installation, adjustment, repair, or testing.
B. Customer's failure to pay as and when due any invoice or any portion thereof for Goods or Services sold under the Agreement or otherwise, shall allow Flow Network to terminate and void all warranties and remedies granted under this Section 8.
C. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS OR SERVICES AND ANY DEFECTS THEREIN OF ANY NATURE WHATEVER, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ITS CHOICE AND USE OF ANY PARTICULAR GOODS OR SERVICES PURCHASED FROM FLOW NETWORK AND FLOW NETWORK SHALL NOT BE LIABLE FOR ANY ADVICE IT MAY HAVE GIVEN CUSTOMER OR ANY FAILURE TO PROVIDE SUCH ADVICE REGARDING THE GOODS OR SERVICES OR CUSTOMER'S USE OF THE SAME. IN NO EVENT SHALL FLOW NETWORK BE LIABLE TO CUSTOMER UNDER ANY TORT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY CLAIM AND CUSTOMER HEREBY WAIVES ANY SUCH CLAIMS. FLOW NETWORK'S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, FOR ANY NONCONFORMITY OR DEFECT IN THE GOODS OR SERVICES OR ANYTHING DONE IN CONNECTION WITH THIS AGREEMENT, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE AS SET FORTH IN SECTION 8A HEREOF (SUBJECT TO FURTHER LIMITATION AS PROVIDED IN SECTION 8B HEREOF IF APPLICABLE). IT IS AGREED THAT THE WARRANTY AND EXCLUSIVE REMEDY PROVIDED FOR HEREIN SHALL NOT BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE (AS THAT TERM IS USED IN THE UNIFORM COMMERCIAL CODE) IF FLOW NETWORK REMAINS WILLING TO REPAIR OR REPLACE DEFECTIVE GOODS OR SERVICES (AS DESCRIBED IN SUBSECTION 8A) WITHIN A COMMERCIALLY REASONABLE TIME AFTER CUSTOMER RECEIVES SUCH GOODS OR SERVICES IN ACCORDANCE WITH THIS AGREEMENT. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT FLOW NETWORK'S PRICE FOR THE GOODS OR SERVICES IS BASED UPON THE LIMITATIONS OF FLOW NETWORK'S LIABILITY AS SET FORTH IN THIS AGREEMENT.
9. Limitation of Liability and Customer Indemnity: REGARDLESS OF THE FORM OF ACTION, FLOW NETWORK SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF THE SALE OF ITS GOODS OR SERVICES TO CUSTOMER OR ARISING OUT OF ANY UNDERTAKING IN CONNECTION WITH THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES ARISING OUT OF CLAIMS FOR LOSS OF GOODWILL, PROFITS, BUSINESS OR USE. NOR SHALL FLOW NETWORK BE LIABLE FOR CLAIMS ARISING OUT OF THIRD PARTY ACTIONS, REGARDLESS OF WHETHER SUCH THIRD PARTY ACTIONS, OR ANY OTHER CLAIMS, LOSSES, OR DAMAGES, WERE REASONABLY FORESEEABLE TO CUSTOMER OR FLOW NETWORK. CUSTOMER'S EXCLUSIVE REMEDY ARISING OUT OF ITS PURCHASE AND USE OF FLOW NETWORK'S GOODS OR SERVICES, OR ARISING OUT OF ANY OTHER UNDERTAKING IN CONNECTION WITH THE AGREEMENT OR SUCH GOODS OR SERVICES, SHALL BE FOR DAMAGES. NO CLAIM OR CLAIMS OF ANY KIND, WHETHER BASED UPON THE AGREEMENT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, STRICT LIABILITY, NEGLIGENCE, AND WARRANTY), REGULATORY OR STATUTORY PROVISIONS, INDEMNITY, CONTRIBUTION, OR OTHERWISE, SHALL BE ALLOWED IN ANY AMOUNT GREATER THAN THE PURCHASE PRICE OF THE GOODS OR SERVICES IN RESPECT OF WHICH DAMAGES ARE CLAIMED.
Customer shall hold harmless and indemnify Flow Network, its employees, agents, officers, parents, affiliates, subsidiaries and insurers from and against any and all claims, damages, liabilities, losses, and lawsuits, including costs and expenses in connection therewith, for injury to or death of any persons or loss of any property whatsoever, caused in any manner by Customer's possession, use or operation of Goods or Services.