Shearwell Terms & Conditions of Sale

The customer's attention is drawn in particular to the provisions of clause8 .

1. Definitions and Interpretation

1.1 Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in Houston, Texas, U.S.A, when banks are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods, Services or both.

Customer: the person who purchases the Goods from the Supplier.

EXW: means ExWorks (as defined in Incoterms 2020) the Supplier’s location.

Goods: the goods and/or services (or any part of them) set out in the Order.

Order: the Customer's order for the Goods, as set out in the Customer's purchase order form or in the Customer's written acceptance of the Supplier's quotation.

Specification: Supplier’s then current specification for the Goods, including any related plans and drawings, subject to express agreement in writing by the Customer and the Supplier otherwise.

Supplier: Shearwell North America Inc., a Delaware corporation.

1.2 Interpretation:

(a) A person includes a natural person, corporation, limited liability company, partnership, trust, association, governmental entity, or other legal entity.

(b) A reference to a party includes its successors and permitted assigns.

(c) A reference to law means and law,statute ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement or rule of law of any governmental authority, including as amended or re-enacted and all subordinate legislation thereunder.

(d) Any words following the terms including , include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

(e) A reference to writing or written excludes fax but not email.

2. Basis of contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer waives any right it might otherwise have, to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions. All terms and conditions different than or in addition to these Conditions proposed by Customer, including in a purchase order, are expressly rejected by the Supplier.

2.2 The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

2.3 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.4 A quotation for the Goods given by the Supplier shall not constitute an offer.

3. Goods

3.1 Identification and the quantity of Goods ordered by the Customer are as set forth in the Order.

3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause shall survive termination of the Contract.

3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.

4. Delivery

4.1 If the Customer does not arrange for pick-up or delivery of the Goods, the Supplier shall arrange for delivery of the Goods to the location set out in the Order or such other location specified by the Customer.

4.2 Delivery is EXW. Delivery by the Supplier is completed and r isk of loss transfers to the Customer at the Supplier’s premises upon the Supplier providing the Goods to the Customer or a carrier, whether the carrier is arranged by the Customer or the Supplier. The carrier is the agent of the Customer. The Supplier will assist the Customer with freight claims against carrier’s arranged by the Supplier.

4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.4 Supplier’s liability for a failure to timely deliver the Goods and cure within a reasonable time after receipt of written notice shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available up to 110% of the price the Goods, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by external delivery services or by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 The Supplier may deliver the Goods by installments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.

5. Quality

5.1 Unless otherwise stated, the Supplier warrants that on delivery by the Supplier, and for a period of 6 months from the date of delivery of the Goods by Supplier (the “Warranty Period”), the Goods shall:

(a) conform in all material respects with the applicable Specification; and

(b) be free from material defects in design, material and workmanship.

5.2 Subject toclause 5.3, if:

(a) the Customer gives notice in writing to the Supplier within a reasonable time after discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1 but in any case within the Warranty Period;

(b) the Supplier is given a reasonable opportunity to examine such Goods; and

(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost,

the Supplier shall, at its option, repair or provide a replacement of the defective Goods, or refund the price of the defective Goods paid to the Supplier.

5.3 The Supplier shall not be liable for a failure of Goods to comply with the warranty set out in clause 5.1 if:

(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;

(d) the Customer alters or repairs such Goods without the written consent of the Supplier; or

(e) the defect arises as a result of fair wear and tear, willful damage, negligence, abnormal storage or working conditions or other causes other than defects in design, material or the Supplier’s workmanship.

5.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS CLAUSE 5, THE SUPPLIER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO GOODS SOLD BY THE SUPPLIER, INCLUDING, BUT NOT LIMITED TO, IMPLIED CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, CONFORMITY WITH SAMPLES, NON‑INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR ANY OTHER MATTER. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF THE SUPPLIER HAS ANY AUTHORITY TO BIND THE SUPPLIER TO ANY AFFIRMATION, REPRESENTATION OR WARRANTY EXCEPT AS STATED IN THE CONTRACT.

5.5 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the failure of Goods to be delivered on a stated date or comply with the warranty set out in clause 5.1.

5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier for the remainder of the original warranty.

6. Title

6.1 Title to the Goods shall not pass to the Customer until the earlier of:

(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods; and

(b) the Customer resells the Goods in the ordinary course of business, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.3.

6.2 Until title to the Goods has passed to the Customer, the Customer shall:

(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify the Supplier immediately if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and

(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Customer.

6.3 Subject to clause 6.4, t he Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:

(a) it does so as principal and not as the Supplier’s agent; and

(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

6.4 At any time before title to the Goods passes to the Customer, the Supplier may:

(a) by notice in writing, terminate the Customer's right under clause 6.3 to resell the Goods or use them in the ordinary course of its business; and

(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. Price and payment

7.1 The price of the Goods shall be the price set out at the time of the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery EXW.

7.2 The Supplier may, at any time before the order is confirmed, increase the price of the Goods.

7.3 The price of the Goods:

(a) excludes amounts in respect of Sales Tax, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid invoice including any Sales Taxes; and

(b) unless otherwise stated, excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

7.4 The Supplier may invoice the Customer for the Goods at time of delivery.

7.5 The Customer shall pay each invoice submitted by the Supplier:

(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and

(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

7.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies underclause 9, the Customer shall be liable for collection costs incurred as well as a late payment fee computed daily at a rate equal to one and one-half percent (1.5%) per month or the highest rate permissible under applicable usury law, whichever is less.

7.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Limitation of liability

8.1 References to liability in thisclause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, infringement, indemnity, restitution or otherwise.

8.2 TO THE EXTENT PERMITTED BY LAW, THE SUPPLIER WILL HAVE NO LIABILITY TO ANY PERSON FOR, AND REMEDIES AND DAMAGES ARE EXPRESSLY WAIVED RELATING TO INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY DESCRIPTION, WHETHER ARISING OUT OF WARRANTY OR OTHER CONTRACT, NEGLIGENCE OTHER TORT, INDEMNITY OR OTHERWISE. THE PARTIES EXPRESSLY AGREE THAT THE LIMITATIONS SET FORTH IN THE CONTRACT ARE AGREED ALLOCATIONS OF RISK AND WILL SURVIVE THE DETERMINATION OF ANY COURT OF COMPETENT JURISDICTION THAT ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE SUPPLIER’S LIABILITY FOR ANY CAUSE EXCEED THE PURCHASE PRICE PAID BY THE CUSTOMER FOR THE SPECIFIC ITEMS OF GOODS SUBJECT TO A CLAIM. No claim or cause of action against the Supplier may be commenced with respect to Goods more than one year after the Supplier’s delivery of the Goods.

8.3 Thisclause 8 shall survive termination of the Contract.

9. Termination

9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract and all other contracts with the Customer with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a material breach of any term of the Contract or any other contract with the Supplier and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract or any other contract between the Customer and the Supplier on the due date for payment.

9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.

9.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

10. Force Majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 30 days OR otherwise agreed by the parties, the party not affected may terminate the Contract by giving 10 days' written notice to the affected party if the nonperformance is not cured within such period.

11. General

11.1 Assignment and other dealings.The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier. The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

11.2 Confidentiality.The Customerundertakes during the Contract and for a period of two years after termination of the Contract to only use confidential information of the Supplier for the permitted purpose for which it was disclosed by the Supplier and not disclose it to any person except as authorized in writing by the Supplier or, subject to giving reasonable advance notice to the Supplier as required by law and cooperating with the Supplier’s efforts to protect such information, a court of competent jurisdiction or any governmental or regulatory authority. The Customer must only disclose the Supplier’s confidential information to the Customer’s employees and advisors who have a need to know it and have agreed to maintain it in confidence and only use it for the permitted purpose for which it was disclosed by the Supplier. The Supplier’s confidential information includes the Supplier’s pricing of the Goods, new product development information, marketing plans, and other business information of the Supplier not generally available to the public.

11.3 Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

11.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorized representatives).

11.5 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any reoccurrence or subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

11.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.7 Notices.Any notice given to a party under or in connection with the Contract shall be in writing and shall be deemed to have been duly given when received, if personally delivered; or the Business Day after it is sent, if sent for next day delivery by an internationally recognized overnight delivery service (e.g., Federal Express). Notices are to be addressed to the party at its registered office (if a company) or its principal place of business (in any other case) or, in the case of the Customer, at the Customer’s address on the books of the Supplier . Notices to the Supplier are to be in any case also promptly sent to [email protected].

11.8 Third party rights. Nothing in this Contract is to be construed to give any person other than the parties hereto any claim or right.

11.9 Governing law.The Contract, 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 laws of the State of Texaswithout giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction.

11.10 Jurisdiction. Each party irrevocably agrees that the state and federal courts in Houston, Texas, shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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This page was updated: 13/9/2024