Sales and Delivery Terms – Fire Eater A/S USA Inc.
1. General
The sales and delivery terms below are in force for all sales and deliveries made by Fire Eater USA Inc., (“Fire Eater”) unless a separate written agreement (any other written agreement made, supersedes the general terms of delivery for Fire Eater) is made or unless special terms are offered by a specific quote by Fire Eater.
2. Prices
All prices in quotes, orders and price lists are referred to in US Dollars, exclusive of customs clearance, taxes and other national or international trade fees or duties. Fire Eater has the right to change the prices published in price lists and other means except if the prices have been confirmed by an order confirmation. Fire Eater publishes its price list 30 days prior to the date of validity.
3. Quotes and order confirmations
Quotes are valid for a period of 30 days from the date of the quote, unless otherwise specified. Quotes are conditional of an order placed by 3rd parties prior to the receipt of order that may influence Fire Eater’s ability to supply according to the quote. The purchase order is only binding for Fire Eater after issuance of order confirmation or after order shipment.
The Purchaser must ensure that the order confirmation is correct, the Purchaser cannot dispute the invoice made at order shipment where the invoice corresponds with the order confirmation sent to the Purchaser.
4. Payment conditions
The invoice date will be the latter of shipping date from Fire Eater premises, or if the Purchaser is arranging transportation, the date of notification from Fire Eater to the Purchaser that the order is ready for shipment.
Fire Eater will by default cover its debtor risk with a debtor insurance, the cost of which insurance will be passed on to the Purchaser. In some cases, a Purchaser may not qualify for debtor insurance. In such cases, the Purchaser shall be obligated to comply with alternative payment requirements such as pre-payment (partially or in full). Fire Eater reserves the right to demand pre-payment or net cash (payment at our disposal no later than three bank days after invoice date) if a financial statement acceptable to us has been presented. The Purchaser undertakes to pay all invoices and charges on the due date at the latest. If the Purchaser does not settle outstanding amounts accordingly, Fire Eater reserves the right to take any or all of the following actions:
- Withhold original documents including transport documents and/or cargo until all overdue invoices and charges, including collection and reminder fees and expenses, are settled.
- Suspend or terminate the provision of credit.
- Exercise any applicable right of lien over any cargo and stop providing or arranging services.
- Apply automatically and without prior notice a fixed charge and interest on the outstanding overdue amounts.
- Commence collection proceedings. Any expenses and fees incurred in collecting overdue invoices and charges are to be covered by the Purchaser.
The purchaser may not offset payments due to claims that are not accepted in writing by Fire Eater.
When payment is made by wire transfer or any other means, the payment shall include all bank fees and wire transfer charges and shall be made in the invoiced currency. If a transfer to Fire Eater’s bank account cannot include the internal bank charges and fees, the Purchaser shall contact Fire Eater and pay a reasonable estimated fee to be included in the transfer.
In case of failure to secure the coverage of bank fees, Fire Eater will debit the difference between the invoiced sum and the sum received, plus a service fee of $ 55.
5. Delivery fee
Fire Eater will charge a fee covering packing, packing materials and handling of $ 55 (item no. 63011 for all orders). The fee covers packing, packing materials and handling.
For very urgent handling of orders or to improve delivery time, a rush fee agreed by the Purchaser and Fire Eater will be charged in an amount not less than $ 220 Calls outside normal office hours, additional cost and labor may be charged to the Purchaser in Fire Eater’s sole discretion.
Fire Eater will additionally charge a fee for:
– Container packing (item no. 63009)
– FAT test, special certificates, special approvals.
– Issuance of Certificate of Origin (item no. 100005-8)
– Special handling or packing of the order.
– If the Purchaser arranges its own transportation for the order, Fire Eater will charge a flat fee of $ 110for the handling.
– If the Purchaser has not collected the order within 15 working days of receipt of notice of order availability, Fire Eater will ship the order to external warehouse storage and charge the storage fee and shipping cost to the Purchaser.
6. Delivery conditions
Delivery is generally arranged by Fire Eater under incoterm DAP Hilleroed, DK and all freight charges invoiced to the Purchaser.
If the Purchaser arranges its own transportation under incoterm FCA Hilleroed, DK, Fire Eater will charge a fee of $140for the handling. 4-8 weeks lead time shall be deemed as normal terms of delivery. Lead times estimated by Fire Eater by quote or price list information are approximate and counted from the receipt of order, plus five (5) working days. Deliveries are conditional of force majeure, strikes, lockout, and sub-Fire Eaters’ inability to fulfill their obligations. The Purchaser shall not receive any compensation from Fire Eater due to losses related to delayed deliveries, or due to Fire Eater inability to deliver in such cases.
When cylinders are delivered in transportation cradles, they shall upon arrival be removed from the cradles and Fire Eater shall be notified in writing no later than two (2) days after receipt of shipment. The cradles shall be returned to Fire Eater, transportation pre-paid by [whom] such that they are received by Fire Eater no later than seven (7) days after receipt of shipment. If after the 7th day the cradles have not been returned to Fire Eater, Purchaser shall pay Fire Eater rent for the cylinder transportation cradles for each day each cradle is not returned (item no. 11010).
7. Date marking of components
Manufacturing and filling date for new cylinders can vary up to two (2) years. Other items with date marks can vary up to two (2) years from delivery date.
8. Territory
Components and installed systems may not be used outside the home country of the recipient unless agreed to in writing by Fire Eater. For maritime installations and other cross border applications the term “country” means the flag state or the country having jurisdiction over the ship, vehicle or other transportable application.
9. Documentation
Fire Eater provides certificates and documentation for products covered by international standards EN12094 and TPED/ADR. The purchaser accepts that manuals and documentation are available in Danish and English, and that translation of such material into a third language is the responsibility of the Purchaser and is made on the Purchaser’s account and at the Purchaser’s own risk, regardless of any regulation or requirement to make it available in another domestic language.
10. Product information
All information, specifications and data contained in materials such as manuals, price lists, data sheets etc., are only binding on Fire Eater when they are specifically referred to in a Fire Eater quote, Fire Eater order confirmation or an agreement.
11. Drawings and documentation
All drawings and technical documentation with relation to the installed system, the components, and manufacturing and IMT software is the property of Fire Eater and may not be copied, reproduced, and may not be made available to third parties without the written consent of Fire Eater. Such materials are solely and exclusively to be used for the operation of the supplied system(s) or installation and operation of the supplied component(s), and any other use is prohibited. Any use of drawings, documentation, or supplied parts with the purpose to make functionally identical items is prohibited. At the time of delivery, Fire Eater shall make available adequate documentation for the operation and maintenance of the supplied installation and/or equipment. Fire Eater is not obliged to supply drawings and instructions related to the manufacturing of the supplied parts and/or spare parts.
12. Products
All or any products designed, manufactured and/or supplied by Fire Eater (the “Products”) may not be copied and/or manufactured by the Purchaser, and no products or items manufactured by the Purchaser may have similarity in function or design to the products designed, manufactured and/or supplied by Fire Eater, which is unique in the marketplace of comparable products. Spare parts and components utilized for maintenance, service or repair on systems or parts supplied by Fire Eater shall be original spare parts. Only Fire Eater has given prior written consent may a Purchaser use parts of other origin than Fire Eater.
13. Warrenty
Limitation on Liability, Warranty, Insurance and Recalls
Limitation on Liability
EXCEPT FOR CLAIMS FOR A BREACH OF CONFIDENTIALITY NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCTS OR COST OF SUBSTITUTED PRODUCTS, OR SERVICES WHICH ARISE OUT OF PERFORMANCE OR FAILURE TO PERFORM ANY OBLIGATION CONTAINED WITHIN THIS AGREEMENT, OR OUT OF NEGLIGENCE IN THE COURSE OF SUCH PERFORMANCE, WHETHER THE CLAIM FOR DAMAGES IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
Warranty
Fire Eater warrants the Products against faults in material and workmanship that lead to a system malfunction or inadequate system performance for a period of 24 months. The warranty period takes effect from the date of the invoice for the subject Products. Fire Eater does not accept any responsibility for defects reported later than 24 months after the invoice date.
During the warranty period, Fire Eater may choose to replace the defective Product with a non-defective similar Product or repair the defective Product. As a general rule, the Fire Eater will receive the defective product from Purchaser and make available the replacement or repaired product ready for shipment. Fire Eater as a general rule does not cover the associated transportation costs. Fire Eater undertakes no further responsibility than the above-described warranty, and the Purchaser cannot cancel the purchase or seek full or part compensation or any other legal remedy.
If the Purchaser is selling the Product to third parties or outside the Territory, or to remote locations with difficult access, the Fire Eater will not cover any costs associated with replacing or repairing parts or the Product, and any such costs should be handled through the agreements between the Purchaser and its client.
THE WARRANTIES IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND ALL OTHER OBLIGATIONS OR LIABILITIES OF FIRE EATER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED BY FIRE EATER. THE REMEDIES CONTAINED IN THIS AGREEMENT WILL BE THE SOLE AND EXCLUSIVE REMEDIES WHETHER IN CONTRACT, TORT, OR OTHERWISE. THIS LIMITATION APPLIES TO ALL PRODUCTS, SERVICES, AND SOFTWARE DURING AND AFTER THE WARRANTY PERIOD. FIRE EATER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY PRODUCT MISUSE. IN NO EVENT WILL FIRE EATER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCTS OR SOFTWARE, OR COST OF SUBSTITUTED PRODUCTS, SOFTWARE, OR SERVICES WHICH ARISE OUT OF PERFORMANCE OR FAILURE TO PERFORM ANY OBLIGATION CONTAINED WITHIN THIS AGREEMENT, OR OUT OF NEGLIGENCE IN THE COURSE OF SUCH PERFORMANCE, WHETHER THE CLAIM FOR DAMAGES IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. ANY ACTION FOR AN ALLEGED BREACH OF ANY CONTRACT OF SALE OR OF THE ABOVE-STATED WARRANTY WITH RESPECT TO PRODUCTS SOLD BY FIRE EATER TO PURCHASER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
Neither Purchaser nor any representative of Purchaser is authorized to make any warranties on behalf of Fire Eater, or to assume for Fire Eater any other liability in connection with any of Fire Eater’s Products, Software, or services.
14. Returning goods
Purchaser will only receive a credit for returned Products where Fire Eater has, in advance, approved the return of said Products, and only if they are not damaged and in their original packaging. When Products are returned, a copy of Fire Eater’s consent to receiving returned Products and a copy of packing list and invoice or packing list/invoice number reference shall be included in the shipment. Fire Eater reserves the right to charge a return fee equal to 20% of the cost of the returned Products or $100, whichever is greater. Products specifically tailored to the needs of the Purchaser or special order Products cannot be returned, for example items ending with No.-8.
15. Changes and faults
Fire Eater reserves the right to change specifications without prior warning. Fire Eater bears no liability for misspelling, accidental exclusions etc., found in printed materials, data sheets and quotes.
16. Product liability
Fire Eater’s liability for damage to the Purchaser’s property or personnel caused by defects in the supplied Products shall not exceed the limits of applicable products liability insurance maintained by Fire Eater.
17. Force majeure
Neither party will be liable to the other for nonperformance or delay in performance due to causes not reasonably within its control, including, but not limited to, acts of civil or military authority, acts of God, war, riot, or insurrection, blockades, embargoes, sabotage, epidemics, pandemics (including COVID 19) fires, floods, strikes, lockouts, labor difficulties, or Fire Eater, through no fault of its own, being placed on allocation by any component supplier. In the event of any Force Majeure occurrence, the disabled party shall use reasonable commercial efforts to meet its obligations as set forth in these Terms and Conditions and the underlying Agreement. Fire Eater, if placed on allocation through no fault of its own by any component supplier, must notify Purchaser in writing within three (3) days of such placement, of Fire Eater’s inability to perform. For all other Force Majeure events, the disabled party must promptly and in writing advise the other party if it is unable to perform. The notice given by the disabled party shall include the expected duration of such inability to perform, and any developments that appear likely to affect the ability of that party to perform any of its obligations hereunder in whole or in part. Upon receipt of such notice, all obligations under these Terms and Conditions and/or the underlying Agreement shall be suspended immediately. If the period of nonperformance exceeds sixty (60) days from the receipt of the notice of the Force Majeure occurrence, the party whose ability to perform has not been so affected may suspend or terminate its performance by giving written notice to the disabled party.
18. Ownership of shipment
The ownership of all Products remains with Fire Eater until the accounts are fully paid up by the Purchaser.
19. CE-marking and Declaration of conformity
- A) Products supplied by Fire Eater are in accordance with relevant directives (e.g., TPED, PED, CPD, etc.) and their essential requirements for health and safety, so long as the Products are used in accordance with the relevant instructions.
- b) Products supplied by Fire Eater are kits intended for the manufacture of fixed fire extinguishing systems installations falling under the CPD. The Products shall be used accordingly and in compliance with the relevant directive and/or harmonized and/or national standards.
20. Governing Law
This Agreement will be governed and in accordance with California state law and applicable U.S. federal law, except that California and federal U.S. choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
21. Arbitration
Any dispute, controversy or claim arising out of or in connection with this Agreement (whether contractually or in tort), and including disputes regarding the validity of this Section concerning venue, shall be settled by arbitration in accordance with the American Arbitration Association (“AAA”) Rules, which will be governed by the United States Arbitration Act, or if that organization no longer exists or if the parties agree otherwise, then by an organization of similar purpose. The place of arbitration shall be within Sacramento County, California, unless the parties mutually agree otherwise. If the dispute involves Three Hundred Thousand U.S. Dollars (USD 300,000) or less, the arbitration panel shall consist of one (1) arbitrator, and if the amount in dispute exceeds Three Hundred Thousand U.S. Dollars (USD 300,000), the arbitration panel shall consist of three (3) arbitrators. The arbitration panel shall award the prevailing party compensation for its reasonable attorneys’ fees and costs and any other costs allowed hereunder.
Rev. date: 28/03/22
