Terms and Conditions
TERMS AND CONDITIONS OF SALE AND SERVICE
The terms and conditions set forth herein, the express terms and conditions of the attached quotation, and the terms and conditions in the order acknowledgement or confirmation (if any) constitute the “Agreement” between Flow and the Buyer and supersede all prior correspondence, quotations, and other communications, either oral or written. These terms and conditions (“Terms”) are intended to govern the sale of all waterjet cutting systems, surface preparation systems, pumps, as well as spare parts and consumables for such systems (the “Equipment”), and services where applicable.
1. LIMITED WARRANTY
a. Flow warrants the Equipment to be free from defects in workmanship and materials for the period specified on the quotation, except that spare parts shall be warranted for a 90-day period and electronic components for a 30-day period. This limited warranty does not cover normal wear and tear, consumable items including, but not limited to, seals, mixing tubes, filters, orifices, low and high-pressure plumbing and cylinders, or part failures caused by (i) accident or any act of God, (ii) abuse, or (iii) failure to maintain the Equipment in accordance with Flow technical specifications. Flow’s liability is limited to repair or replacement of the Equipment and the determination regarding which of these is appropriate shall be at Flow’s sole discretion. This warranty is conditioned upon (i) Flow being notified in writing by Buyer within one month after discovery of defects, (ii) At Flow’s discretion, the return of defective Equipment to Flow (with RMA number assigned by Flow’s customer service representative), with inbound transportation charge prepaid by Buyer, and (iii) Flow’s examination of the Equipment and determination that such defects were not caused by negligence, misuse, improper maintenance, improper installation, accident or act of God, or unauthorized repair or alteration. Equipment or parts thereof furnished by Flow, but manufactured by others, shall carry the warranty that such product’s manufacturer has conveyed to Flow, if any. The original warranty period of any Equipment that has been repaired or replaced by Flow shall not by virtue of such repair or replacement be extended. Warranty is void if non-Flow branded or certified or unauthorized parts are used.
b. Flow warrants that all products manufactured by Flow comprised in the Equipment and furnished to Buyer are delivered free of any rightful claim of any third party for infringement of any valid United States patent. If Buyer promptly notifies Flow, in writing, that it has received notice from a third party that the Equipment infringes a U.S. patent, and provides Flow with all authority, information and assistance that Flow deems reasonably necessary, Flow shall in its sole judgment defend or settle any suit or proceeding against Buyer, at Flow’s expense, to the extent that it is based upon claim of infringement which is a breach of the foregoing warranty, and Flow shall pay all damages and costs awarded therein against Buyer due to such breach. In case the use of any such Equipment is held in such suit to constitute such an infringement and the use of such Equipment for its intended purpose is enjoined or restricted by way of a court-ordered injunction, Flow shall, at its expense and option, procure for Buyer the continued usage of said product or part, or replace same with a non-infringing product or part, or modify same so it becomes non-infringing, or remove the product or part and refund the purchase price (less reasonable depreciation for any period of use) provided that any transportation costs are separately paid by Buyer. The foregoing states the entire liability of Flow for patent infringement by using said products or any parts thereof.
c. The preceding paragraph shall not apply to (i) any Equipment that is modified, customized, or manufactured to Buyer’s design or specifications, or (ii) the use of any Equipment furnished to Buyer in combination with other products not furnished by Flow, unless the Equipment, per se, infringes the asserted patent. As to any such excluded product or part thereof, Flow assumes no liability whatsoever for patent infringement and Buyer shall hold Flow harmless against any infringement claims arising therefrom.
2. LIMITATION OF WARRANTIES
EXCEPT AS PROVIDED IN SECTION 1 ABOVE, FLOW MAKES NO OTHER WARRANTIES TO BUYER, EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3. ACCEPTANCE, DELIVERY, TITLE AND RISK OF LOSS
Unless otherwise specified by Flow, delivery will be made and title will pass F.O.B. point of shipment to Buyer skidded for domestic truck shipment. Risk of loss or damage passes to Buyer on delivery. Any export or other special packing or special transportation charges shall be charged to and paid by Buyer. Except as otherwise agreed to by Flow, Flow shall not be responsible for freight transportation, insurance, shipping, storage, handling demurrage, or similar charges (including duties, taxes, VAT, etc.). If such charges are by the terms of sale included in the price, any increase in rates becoming effective after the date hereof shall be for the account of and responsibility of Buyer.
4. TIME NOT OF THE ESSENCE UNLESS EXPRESSLY PROVIDED
Time is not of the essence with respect to any times or dates included in the Agreement unless the Agreement expressly indicates that those times or dates are of the essence. Any dates for payments from or by Buyer to Flow are of the essence.
5. EXCUSABLE DELAYS
Flow shall not be liable for delays in delivery or performance, or for failure to manufacture, deliver or perform, for reasons including, but not limited to, (i) a cause beyond its reasonable control, or (ii) an act of God, act of Buyer, act of civil or military authority, Governmental priority, strike or other labor disturbance, flood, epidemic, war, riot, delay in transportation, or (iii) inability on account of a cause beyond the reasonable control of Flow to obtain necessary materials, components, services or facilities. Flow will notify Buyer of any material delay excused by this section and will specify the revised delivery date, as soon as practicable. Any such delay shall not give rise to any termination right and the date of such delivery or performance shall be extended for a period equal to the time lost by reason of delay.
6. BUYER’S CREDIT
Flow may request advance payments or adequate security for deliveries required by the Agreement, including Equipment already delivered. Flow reserves the absolute right, among other remedies, to terminate this Agreement or to suspend further performance under this Agreement in the event Buyer fails to provide such payments or security within 20 days of Flow’s request. Upon such termination or suspension, Flow shall be entitled, upon demand, to be indemnified for and against all costs and expenses already incurred or commitments made by Flow in or towards its performance under this Agreement.
7. DISCLOSURE OF INFORMATION
Any information, suggestions or ideas transmitted by Buyer to Flow in connection with performance under this Agreement are not to be regarded as secret or confidential except as may be otherwise provided by agreement in writing signed by a duly authorized representative of Flow.
In addition to any price specified in the Agreement, Buyer shall bear, pay and be responsible for the gross amount of any present or future taxes, duties or levies, of a sales, use, excise, value added, goods and services or other similar nature, applicable to or assessable on the price, sale or delivery of any products or services furnished under the Agreement or to their use by Flow or Buyer or otherwise applicable to the transactions under the Agreement, or Buyer shall furnish Flow with evidence of exemption acceptable to the taxing authorities.
9. LIMITATIONS OF DAMAGES
FLOW SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF USE, LOSS OF PRODUCTION, DAMAGE TO OTHER EQUIPMENT, COST OF CAPITAL OR INTEREST. FLOW’S LIABILITY IS LIMITED TO REPAIR OR REPLACEMENT OF THE EQUIPMENT AND THE DETERMINATION REGARDING WHICH OF THESE IS APPROPRIATE SHALL BE AT FLOW’S SOLE DISCRETION. THE PARTIES AGREE THAT THE FOREGOING REMEDY IS REASONABLE AND DOES NOT CAUSE THE AGREEMENT TO FAIL IN ITS ESSENTIAL PURPOSE.
The Buyer does not have the right to cancel this Agreement or any portion of this Agreement unless the Buyer's request for cancellation is approved in writing by an authorized representative of Flow. If Flow so approves the cancellation of this Agreement or any portion of this Agreement, Buyer acknowledges that Flow will be damaged by the cancellation and that the damages sustained by Flow will be difficult to calculate. Therefore, Flow is entitled to recover from Buyer the immediate payment of liquidated damages calculated as follows: (a) in respect of Standard/Non-Customized Equipment and Spare Parts and Consumables: an amount equal to (i) all costs and expenses incurred by Flow in its performance of the Agreement up to the date of approved cancellation, (ii) plus an amount equal to all commitments for or towards the purchase of goods, materials and services made by Flow in connection with the processing, handling and fabrication of the Equipment, (iii) plus the payment to Flow of 10% of the total sale price, which Buyer acknowledges represents a reasonable amount for Flow’s overhead and profit; or (b) in respect of Custom Equipment: at Flow’s option (i) an amount equal to the revenue recognized by Flow for the Equipment on a percentage of completion basis or (ii) the amount determined pursuant to (a) above with respect to Standard/Non-Customized Equipment. Any progress payments already made prior to such cancellation shall be applied towards the total amount determined according to the foregoing sentence.
11. INSTALLATION & TRAINING
Unless otherwise agreed by Flow in writing, installation and training services are not included in the sale price except as specified; however, such services, including travel time and overtime premium charges, will be provided if requested at Flow’s quoted service rate as may be applicable for working hours.
12. INTELLECTUAL PROPERTY
The Equipment and its documentation have been developed by Flow and represent a significant investment in industrial and intellectual property. No ownership of any patent, copyright, trade secret, technical data or other industrial or intellectual property is transferred to Buyer hereunder. No Equipment sale is to be construed as the grant by Flow to the Buyer of any license to copy, modify, revise or reconstruct anything falling within the scope of patents, copyrights, trade secrets, technical data, or other industrial property of Flow or third parties.
Buyer shall indemnify and hold Flow harmless from and against any and all losses, claims, costs, expenses, damages and liabilities, including reasonable attorney's fees, which Flow may suffer or be required to pay, arising out of injury (or death) to persons, or damage to property, resulting from or pertaining to the negligent use or operation of the Equipment whether or not occasioned by the negligence of Buyer, employees, independent contractors or invitees.
a. Validity, interpretation and performance. The validity, interpretation and performance of the Agreement shall be governed by the laws of the State of Washington in effect at the time of contracting. Ambiguities will not be construed against the drafter. Flow may bring an action to enforce the Agreement in state and federal courts located in the jurisdiction of the Buyer, or any other jurisdiction the venue rules of which would allow maintenance of such an action.
b. Default. Buyer shall be in default of this Agreement in any of the following circumstances: (i) a failure to make any payment due within 10 days of the date on which that payment is due; (ii) a failure to perform or satisfy any covenant, condition or warranty of this agreement, other than payment, where such failure continues for 10 days after Buyer is given notice of such failure; (iii) Buyer’s default under any note, security agreement, equipment lease or similar document evidencing indebtedness between Buyer and either Flow or a third party where such default permits the holder of such indebtedness to cause such indebtedness to become due before its stated maturity; (iv) any representation or warranty made by Buyer shall prove to be materially incorrect or the conditions of Buyer’s business affairs shall change so as in the opinion of Flow to materially impair Flow’s interest or increase materially Flow’s credit risk; (v) Buyer shall generally not pay its debts as they come due, file or have filed against it a petition under any bankruptcy or insolvency law, make an assignment for the benefit of its creditors, consent to the appointment of a custodian, receiver; trustee or other officer with similar powers, be adjudicated insolvent or be liquidated; (vi) Buyer or any guarantor of Buyer is declared legally deceased (if Buyer is a sole proprietor or general partner) or if Buyer shall terminate its existence by merger, consolidation, sale of substantially all of its assets or otherwise; or (vii) Buyer shall agree with any third party to any lien or encumbrance that will in any way affect Flow’s ability to obtain any of the remedies provided for in this Agreement.
c. Remedies. Upon default by Buyer, Flow may exercise any or all of the following remedies with respect to the Equipment: (i) replevin, repossession or seizure, by judicial process or otherwise; (ii) acceleration of remaining payments so that they are immediately due; (iii) damages for any unpaid portions of the sales price, loss or for consequential or incidental damages and (iv) attorneys’ fees and costs of litigation. This list of remedies is not exclusive or exhaustive. Each of these remedies shall be cumulative and in addition to any other remedies available under this Agreement, at law or in equity. In the event any amount due under this Agreement is not timely paid, Flow shall be entitled, in addition to any other remedy, to (i) a finance charge of 1½% per month (18% per year) for such overdue amounts and (ii) all reasonable collection costs, including legal fees. This finance charge shall also apply to any suspension, termination or cancellation as provided in these terms and conditions.
15. GENERAL TERMS
a. Flow’s Terms Control. ANY ACCEPTANCE OF THE BUYER, INCLUDING ANY PURCHASE ORDERS, MUST BE MADE ON THESE EXACT TERMS UNLESS FLOW EXPRESSLY AGREES TO ANY ADDITIONAL OR DIFFERENT TERMS. TO THE EXTENT THESE TERMS ARE CONSTRUED AS AN ACCEPTANCE OF AN OFFER MADE BY BUYER, THE ACCEPTANCE IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO ANY TERMS AND CONDITIONS IN THIS TERMS. FOR PURPOSES OF CLARIFICATION, ANY TERMS INCLUDED IN ANY BUYER-DRAFTED DOCUMENT (E.G. BUYER-REVISED QUOTATION, PURCHASE ORDER) DO NOT FORM PART OF THE AGREEMENT BETWEEN FLOW AND THE BUYER UNLESS FLOW EXPRESSLY AGREES TO ANY SUCH ADDITIONAL OR DIFFERENT TERMS.
b. Entire Agreement. The Agreement constitutes the entire agreement of the parties, and they supersede all prior written or oral representations made by the parties with respect to the subjects addressed in this Agreement.
c. Amendments. No purported modification or variance of the Agreement will be effective or enforceable unless made in writing and signed by an authorized representative of the party against whom enforcement of such a purported modification or variance is sought. For there to be a valid agreement by Flow, there must be a document manifesting that agreement and signed by an authorized representative of Flow. Flow will not be deemed to have entered into a contract as a result of its conduct, and Flow shall not be bound by any purported oral agreements, whether by operation of law or otherwise.
d. Industry Custom, Usage of Trade or Course of Performance. The parties do not intend that the express terms of the Agreement will be modified, varied or supplemented by industry custom, usage of trade or course of performance unless the other documents (where applicable) comprised in the Agreement expressly incorporate such industry custom, usage of trade or course of performance.
e. Conflict Among Flow’s Terms. In the event of a conflict or any ambiguities between these terms and conditions and any terms and conditions contained in a quotation, order acknowledgement, or other Flow-issued documents (for conflict between Flow’s terms and Buyer’s terms, see Section 15(a) above), the following order of priority shall apply: (i) terms on the order acknowledgment (if any), (ii) terms on the quotation, (iii) these terms and conditions.
f. Waiver. The failure of Flow to object to any provision in conflict with the Agreement shall not be construed as a waiver of any of this Agreement, and the failure of Flow to enforce any of the provisions of this Agreement shall not be construed in any sense as a waiver .
g. Third Party Beneficiaries. The parties do not intend that the Agreement shall create a right of enforcement by any third party and the parties expressly intend that there be no third parties with standing to enforce any provision of the parties’ Agreement. In the event Buyer obtains funding from a third party or Flow enters into any agreement with such financier, Buyer agrees that Buyer shall have no rights as a third-party beneficiary in any contract between Flow and that third party.
h. Liens. The Buyer shall not allow the Equipment to become subject to any lien or encumbrance, including but not limited to a mechanic’s lien, without the express, written permission of Flow. If the Buyer violates this provision, it shall be responsible immediately to take all steps necessary to remove or satisfy any such lien and to pay all reasonable legal fees and costs incurred by Flow as a result of the imposition of such a lien.
i. Severability. Any determination that a provision of this Agreement is unenforceable will not affect the enforceability of the remaining provisions of this Agreement.
Updated April 2018