8/19/2019 2011 Flsmidth Terms and Conditions

1/2

 

TERMS AND CONDITIONS

1.  DEFINITIONS a.   “FLS” means the FLSmidth entity that is providing the offer.b.   “Buyer” means the purchaser, its representatives and/or its agents.c.

 

 “Equipment” means any equipment, machinery, parts, components, materials or services provided for in this offer and any contracresulting therefrom.

2.  CONTROLLING TERMS AND CONDITIONS:a.  This offer, including these terms and conditions, and any contract resulting from, arising out of, or connected with this offer, shall

constitute the complete agreement between FLS and Buyer (the “Contract”), regardless of any rejection or statement to thecontrary in any document, which rejection, statement, and all additional or difference terms or conditions, are rejected unlessexpressly accepted in writing by an authorized FLS representative. No course of dealing, usage of trade or course of performancemay be used to imply or add terms or conditions to the contract or amend the terms or conditions of the contract. Any conductwhich recognizes the existence of a contract shall constitute acceptance by both parties of the terms and conditions stated herein.The Contract may only be amended by a written Change Order signed by both parties.

b.  Unless otherwise stated in this offer, or withdrawn or modified by FLS at an earlier date, the offer is valid for thirty days from itsdate of issue. FLS reserves the right to withdraw or change terms of this offer at any time before a contract is made.

c.  Notwithstanding anything to the contrary, FLS’ obligation under the Contract shall not commence until the date when (1) any downpayment required in the offer has been received by FLS; and (2) any Letter of Credit or other security as required in the offer has

been received by FLS. If the above conditions are not satisfied within thirty-one days of the date in which the Contract is signed ora purchase order for the Equipment was issued, FLS may, at its option, either renegotiate the Contract price and terms of Contractor terminate the Contract and have no further obligations to the Buyer.

d.  Article headings are provided for the convenience and are not to be used in construing this Contract.

3.  TAXESAll prices quoted herein are exclusive of all sales, use, value added, excise, import, privilege, personal property or other taxes or dutiesoccasioned by the manufacture, shipment, sale, lease, possession, ownership or use of the Equipment. Buyer shall pay such taxes to FLS orto public authorities, as required.

4.  TITLE AND RISK OF LOSSUnless expressly provided otherwise in this offer, title to Equipment furnished hereunder shall pass only on receipt of payment in full by FLS.Risk of loss to Equipment shall pass at EX Works point of shipment (per Incoterms 2000), even in cases wherein freight may be prepaid orallowed to destination by FLS.

5.  FREIGHT

Freight when allowed in FLS offers, is estimated at the most economical rate for the method of shipment specified to the given destinationand the actual cost will be invoiced to and paid by the Buyer, in addition to Contract price. Any claims for loss, damage or shortage intransportation must be filed immediately by the Buyer against the carrier, as all Equipment is shipped at Buyer’s risk.

6.  SERVICESThe Equipment shall be installed and commissioned by the Buyer at the Buyer’s expense. If installation or commissioning advisory servicesare provided, such services shall be governed by FLS’ Standard Terms and Conditions of technical Advisory Service.

7.  SAFETY DEVICESFLS shall not be required to furnish or be responsible for the safety devices or regulations except those which are expressly provided forherein. Buyer shall install and operate the Equipment in accordance with all applicable laws, codes, and regulation.

8.  RETURNED EQUIPMENT/EXCESS QUANTITIESEquipment may not be returned except by prior written authorization by an authorized FLS representative, and when so returned, will besubject to a handling and restocking charge, plus transportation cost.

9. 

DELIVERY/EXTENSION OF TIMEa.  FLS will make every reasonable effort to meet scheduled delivery dates; however, Buyer hereby acknowledges and agrees that

FLS is not liable for damages due to any failure to meet such scheduled delivery dates and no such failure to meet scheduled datesshall be sufficient cause for cancellation.

b.  Scheduled completion or delivery dates shall be extended for delays due to any cause beyond FLS’ reasonable control, including,without limitation, governmental actions or orders, embargoes, terrorism and the impacts thereof, defective materials includingdefective casings, default or delay of subcontractors or suppliers, delays in transportation, labor disputes, fires, floods, inability toobtain fuel, labor or materials, riots, acts of God, and all other such causes which delay performance by FLS or any of its suppliersor subcontractors.

10.  LIMITED WARRANTYa.  FLS warrants that Equipment is free from defects in material and workmanship for one (1) year from date of shipment, if properly

erected, installed, maintained and operated in accordance with FLS’ instructions and good industry practice, excluding ordinarywear, corrosion, erosion, chemical or abrasive action, excessive heat, improper lubrication, improper or extended storage prior tostart-up, or application outside the design limitations of said Equipment.

8/19/2019 2011 Flsmidth Terms and Conditions

2/2

 

b.  FLS agrees to repair or, at FLS’ options, replace, EX Works original point of shipment any Equipment which proves during warrantyperiod to contain defective material or workmanship, if written notice is given to FLS within two (2) calendar weeks of discovery.

c.  The warranties and limitations of remedy and liability set forth in this Contract shall be exclusive, in lieu of, and exclude all otherwarranties (except of title), whether express implied, statutory, at law or in equity. THERE ARE NO IMPLIED WARRANTIES OFMERCHANTABILITY, FITNESS OF PURPOSE, PERFORMANCE OR OTHERWISE.

11. 

TERMS OF PAYMENT a.  Invoices shall be payable in accordance with the terms of payment described in FLS’ offer, under such financial guarantee of

payment as FLS may require. If shipment is delayed through no fault of FLS, date of readiness for shipment shall be deemed to bedate of shipment for payment purposes. If manufacture is delayed by Buyer, payment shall be made based on Contract price andpercentage of completion at time of delay, with the balance payable in accordance with the Contract terms stated.

b.  Terms of payment are subject to FLS’ approval at the time order is accepted and again prior to delivery. If in FLS’ judgment Buyer’scredit position changes after the date hereof, FLS reserves the right to refuse to deliver except for cash without being liable forbreach of contract either whole or in part.

c.  Invoices are payable in accordance with the terms of payment described above. If discrepancies exist, full payment of the invoiceswill be made within the prescribed time and adjustments for proven discrepancies made as soon as practicable. Invoices under thisContract shall be completely independent of all other contracts between the parties and all payments due to FLS hereunder shall bepaid when due and shall not be setoff or applied against any money due or claimed due from FLS to Buyer on account of any othertransaction or claim.

d.  If any payment is not then current within the specified time, interest will be charged at the prime rate of CitiBank, New York, N.Y.,or at the maximum legal rate permitted, whichever is lower, with interest computed and due monthly.

e. 

If Buyer fails to fulfill the terms of payment or other terms and conditions hereof, FLS may, at its option, cease performance, deferfurther shipments to Buyer or cancel the unshipped balance of this Contract and all other Buyer’s contracts then unfilled. FLSreserves the right in the event of Buyer’s default to reclaim at Buyer’s cost any items described herein. All rights of FLS shall becumulative and in addition to any other rights conferred by law.

12.  INDEMNIFICATION Each Party shall indemnify the other from any and all third-person claims for damages, losses, costs and expenses directly resulting frompersonal injury to or death of any person, and damage to tangible third-person property, to the extent such injury, death or damage isdirectly caused by negligence, gross negligence or willful misconduct of the indemnifying party.

13.  LIABILITYa.  This Contract sets forth the sole and exclusive remedies available to the Buyer. FLS’ liabilities are limited as set forth herein. FLS

has not granted or assumed any implied, statutory, at law or in equity. No breach of warranty or of contract or failure by FLS tofulfill any other conditions of this Contract shall constitute a failure of the essential purpose of the exclusive limited remedies.

b.  FLS shall under no circumstances be liable for loss of profits, anticipated revenue, interest, loss of use, loss by reason of plantshutdown or non-operation, cost of substitute power, equipment, facilities or services, additional usage of fuel or utilities, cost of

removal of defective equipment and installation of conforming or non-defective equipment, delays of installation of the work orcompletion of the project or plant, demurrage, fines or penalties imposed by governmental authorities or claims of Buyer or itscustomer for such damages, or for any special, incidental, indirect, exemplary, or consequential damages, whether or not such lossor damage is based in contract, warranty, tort (including negligence or strict liability), indemnity or otherwise.

14.  GOVERNING LAW AND FORUMa.  The Contract shall be governed by and construed in accordance with the laws of the state in which FLS is located (Arizona for

FLSmidth Krebs Inc.; Idaho for FLSmidth Boise, Inc.; Illinois for Excel Foundry and Machine, Inc. and FLSmidth Pfister, Inc. andFuller International Inc.; Utah for FLSmidth CEntry and FLSmidth Salt Lake City, Inc.; Washington for FLSmidth Spokane, Inc.),notwithstanding the result that otherwise may arise from application of the conflict of law rules of any competent jurisdiction. Theparties expressly waive application and jurisdiction of the UN Convention on the International Sale of Goods.

b.  All disputes and claims between the parties concerning, arising from or relation in any way to the Contract that cannot be settled bygood faith discussion, shall be resolved through binding arbitration by the American Arbitration Association (“AAA”) pursuant to theAAA’s Construction Industry Arbitration Rules in effect at the time. The arbitration shall be held in New York, New York. Thearbitrators shall have no right to add to, subtract from or modify any of the provisions of this Contract. The arbitration award shallnot be appealable or subject to recourse to or review by any court or other arbitration panel.