Terms and Conditions
1. Purchases Terms and Conditions.
All orders and purchases of valves and valve systems (the “Products”) made by a customer (the “Client”) from ANALYTICAL FLOW PRODUCTS (“AFP”) are subject to the following terms and conditions. Consequently, by placing an order for or purchasing Products from AFP, Client accepts to be bound by and to comply with these terms and conditions. Except as otherwise provided herein, the present terms and conditions, together with AFP’s then current product warranty and purchase order forms, shall constitute the complete agreement between AFP and Client with respect to the purchase and sale of Products.
All orders are subject to prior written acceptance and approval by AFP, at its sole discretion. Once accepted, Client may not modify or cancel any order of Products without the prior written consent of AFP. AFP reserves the right to charge back to Client costs incurred as a result of order cancellations or changes made by Client,
and to consider and change or addition thereto as a separate order. In the event of an incompatibility between the present terms and conditions and the content of a purchase order forms, the present terms and conditions shall prevail.
AFP does not guarantee the availability of Products ordered. Should AFP be unable to make a complete delivery of any order, AFP reserves the right to make partial deliveries and to submit invoices for such partial deliveries. Back orders shall be filled as Products become available. AFP shall in no way be responsible for any losses or damages suffered by Client as a result of the non-availability or late delivery of
4. Right to Cancel an Order.
Notwithstanding the acceptance of an order by AFP, AFP reserves the right to cancel any order of Products at any time and for any reason, the whole without any recourse on the part of Client and subject only to a notice to Client of said
No exclusivity of any kind is granted to Clients by AFP when it accepts orders or sells Products to any given client. AFP reserves the right to manufacture, distribute, sell or otherwise deal in Products in any manner and with any party it wishes.
6. Currency and Price Changes.
All Product prices quoted by AFP are in US currency unless otherwise clearly
specified in an accepted purchase order. All prices quoted from time to time by AFP are net prices and are subject to change without notice up to the time of delivery subject only to a notice by AFP to Client. If the price change consists of an increase greater than ten percent (10%), the client will have 24 hours from being notified of such increase in order to cancel said order by written notice.
Product prices are entirely net and do not include any taxes (including sales or value added taxes), duties, freight, shipping, packaging, handling, insurance, brokerage fees, customs fees or charges, or any other fees or charges, all of which shall be assumed entirely by Client.
All sales are made EXW (Inco terms 2010) AFP’s warehouse. Notwithstanding the preceding, title to Products shall only pass to Client once AFP has received the full payment for the order.
9. Invoices and Payment Terms.
AFP shall invoice Client at its sole discretion. Payment terms are established at AFP’s sole discretion on a case-by-case basis. AFP further reserves the right to require payment for Products in advance of production or shipment. Payments may be made by cheque or wire transfer in accordance with the payment instructions set forth in AFP’s invoice. Client agrees that all late payments, in whole or in part, shall be subject to a service charge and interest at a rate of 1½% per month (18% annually). If any amount payable to AFP is not made when due, AFP shall, in addition to the rights and remedies it may have under any applicable law or by contract, and without limitation, have the right to withhold shipment of Products, repossess Products, all without notice to Client and without initiating legal proceedings. Client shall be responsible for all legal fees and other costs and expenses AFP may incur to collect any amounts owed by Client.
10. Delivery and Acceptance.
Each Product supplied by AFP shall be deemed accepted by Client unless written notice of defect or non-conformity is received by AFP within fifteen (15) days of receipt of the Product by Client. Should AFP accept to oversee delivery of the Products, same shall be performed by means chosen by AFP at its sole discretion. Should Client request that the Products be shipped within a certain delay, AFP may
impose storage, handling or other similar charges to Client.
The warranties as set forth in the Warranty are the sole and exclusive warranties provided to Client with respect to the Products and are in lieu of all other warranties expressed or implied on the part of AFP, or any of AFP’s agents, employees, representatives including, but not limited to, any warranty as to quality, title, merchantability, non-infringement or fitness for a particular purpose.
Client agrees to comply with all applicable export laws, restrictions and regulations of Canadian or foreign agencies or authorities and to fully cooperate with such
authorities in any investigation or inspection relating to the Products. Client shall be responsible to obtain any necessary license to export the Product from the country in which AFP’s facility is located and/or import the Product into any other country.
Even in the event that it is confirmed that there is a defect in any Product sold by AFP, AFP shall not be liable for any damages resulting as a direct or indirect result of
such defect. Furthermore, AFP shall not be responsible for any damage caused to Products by or during transportation, storage, handling, alteration to the Product,
use or misuse. CLIENT’S SOLE AND EXCLUSIVE REMEDY PURSUANT TO ANY CLAIM OF ANY KIND INCLUDING, BUT NOT LIMITED TO A CLAIM IN CONTRACT, NEGLIGENCE, CIVIL LIABILITY OR STRICT LIABILITY, AGAINST AFP OR ANY OF AFP’S AFFILIATES, OFFICERS DIRECTORS, AGENTS OR REPRESENTATIVES, SHALL BE LIMITED TO WHAT IS SPECIFICALLY PROVIDED UNDER THE AFP WARRANTY APPLICABLE TO A GIVEN PRODUCT. AFP SHALL NOT BE HELD RESPONSIBLE FOR DAMAGES TO PROPERTY, CONSEQUENTIAL LOSS, LOSS OF PROFIT, LOSS ON GOODS IN STORE OR THE LIKE, IRRESPECTIVE OF THE CAUSE, INCLUDING CAUSES WHICH ARISE OUT OF OR CONNECTED WITH THESE TERMS AND CONDITIONS OR FROM THE PERFORMANCE OR BREACH OF THE TERMS HEREOF, OR FROM THE NEGLIGENCE OR FAULT OF AFP. IN ALL CASES THE TOTAL LIABILITY OF AFP SHALL NEVER EXCEED THE PRICE OF THE PRODUCT PAID BY CLIENT.
15. Indemnification by Client.
Client shall indemnify and hold harmless AFP, together with its related entities, clients, subcontractors, employees, directors, officers, consultants and other representatives, from and against any claims, actions, proceedings, loss, expenses and/or damages (including all legal fees and costs) caused by or relating to the use of the Products, in any way, by Client, including by its subsidiaries, related entities, subcontractors, clients, employees, directors, officers, consultants and other
16. Intellectual Property.
Client recognizes and acknowledges that AFP is the exclusive owner of all Intellectual Property (as such term is defined hereinafter) rights relating to the Products, notwithstanding any suggestion or contribution made by Client with respect to any such Products, and agrees (i) not to copy, counterfeit, alter, reverse engineer or manufacture the Products or have Products copied, counterfeited or manufactured by any third party and (ii) not to otherwise copy, use or disclose to third parties any of AFP’s proprietary trade secrets, know-how or other confidential information, such as, but not limited to, ideas, concepts, inventions, patents, copyrights, trademarks, any drawings, designs, prototypes, specifications and other intellectual property (the “Intellectual Property”). Client shall not file for patent, trademark, or copyright or any other form of Intellectual Property protection for any of AFP’s Products, inventions, works or ideas. Client shall indemnify and hold harmless AFP from any claims, liability, judgement, loss, damage, costs resulting from a claim or action of a third party arising from Client’s breach of AFP’s Intellectual Property rights.
THESE TERMS AND CONDITIONS TOGETHER WITH THE OTHER DOCUMENTS REFERRED TO HEREIN CONTAIN THE ENTIRE PROVISIONS GOVERNING THE
PURCHASE OF PRODUCTS BY CLIENT FROM AFP AND THESE TERMS AND CONDITIONS SHALL GOVERN THE SALE OF GOODS SOLD TO CLIENT. THESE TERMS
AND CONDITIONS MAY BE AMENDED OR MODIFIED ONLY BY A WRITTEN INSTRUMENT SEPARATELY SIGNED BY CLIENT AND AFP. NO AGENT, SALESMAN, OR DISTRIBUTOR SHALL HAVE ANY AUTHORITY TO OBLIGATE AFP BY ANY TERMS,
STIPULATIONS OR CONDITIONS NOT HEREIN EXPRESSED.
18. Binding upon Successors and Assigns.
These Terms and Conditions shall be binding upon any successor of Client, whether by merger, acquisition or otherwise, provided that Client shall advise AFP in writing of any such event in order to clearly identify the new or resulting entity.
These Terms and Conditions shall be governed by and construed in accordance with the laws of the Province of Quebec and of Canada applicable thereto without regard to its principles of conflicts of law, and the courts of the Province of Quebec, judicial district of Frontenac and the federal courts of Canada shall have exclusive jurisdiction with respect to any proceedings in respect with this limited warranty.
In addition to, and not in limitation of any other rights, remedies or damages available at law or in equity, AFP shall be entitled to an interim injunction, interlocutory injunction and permanent injunction in case of a breach of any of the Terms and Conditions herein expressed.
21. United Nations Convention.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any way to these Terms and Conditions, to any order of Products or to the transactions hereby contemplated or otherwise to create any rights or to impose any duties or obligations on any party to these Terms and Conditions. Any rights which have arisen or which might arise in the future under the United Nations Convention on Contracts for the International Sale of Goods are waived and released by all parties hereto.
Should AFP waive any term or condition, for any reason, this waiver shall be in writing in order to be valid and shall not to be construed as a continuing waiver. A
failure to exercise any right, remedy or power under the present Terms and Conditions shall not operate as a waiver thereof.
All accepted orders are subject to delays in delivery in the event of fires, floods, accidents, embargoes, labour disputes, failure of suppliers to deliver goods, material
shortages or any other contingencies either or not beyond the control of AFP. In all cases AFP shall reasonably advise Client of such delays but shall not be liable for any damages caused in relation thereof.