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1.1 These terms and conditions apply to products (“Products”) and services (“Services”) purchased by person, firm, company or other organisation who or which has entered into the contract for purchase of Products and/or Services (the “Buyer”) from Fluidic Analytics Limited (the “Seller”).
1.2 The Buyer must submit an order detailing the Products and/or Services it wishes to purchase from the Seller (“Order”). Orders of Products and/or Services by the Buyer shall not bind the Seller until confirmed as accepted by the Seller in writing by an order acknowledgement (“Order Acknowledgment”) at which point the contract (“Contract”) will come into existence (“Commencement Date”). The Contract comprises these terms and conditions, the Quotation, the Order and the Order Acknowledgement.
1.3 Orders are accepted by the Seller subject to these terms and conditions and these terms and conditions are deemed to be a part of and incorporated into, every Order Acknowledgment and Contract for Products and/or Services provided by the Seller. In case of any conflict, inconsistency or addition not expressly accepted in writing by the Seller, these terms and conditions shall be considered as superseding the conflicting, inconsistent or additional terms stated in the Buyer’s purchase order, order form, contract or otherwise.
1.4 Any Quotation (as defined in Clause 5.1) given by the Seller shall not constitute an offer and is only valid for a period of ninety (90) Days from its date of issue.
2.1 During the term of the Contract (as specified in the Order), the Seller shall supply, and the Buyer shall purchase such quantities of Products as the Buyer may order as set out in the Order in accordance with these terms and conditions.
2.2 The Seller shall use reasonable endeavors to meet any delivery and performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services or delivery of any Products or Services.
2.3 The Seller reserves the right to amend the Specification (as defined in Clause 10.5) if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services or Products, and the Seller shall notify the Buyer in any such event.
2.4 The Buyer may within five (5) Business Days of placing an Order amend or cancel an Order by written notice to the Seller. If the Buyer amends or cancels an Order, the Buyer shall pay to the Seller all costs reasonably incurred by the Seller in fulfilling the Order up until the date of deemed receipt of the amendment or cancellation, except that the Buyer shall have no liability to the Seller where the amendment or cancellation results from the Seller’s failure to comply with its obligations under these terms and conditions.
2.5 The Buyer shall ensure that the terms of the Order are complete and accurate and provide the Seller with such information and materials as the Seller may reasonably require in order to supply the Products and/or Services.
2.6 If the Seller’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (“Buyer Default”) then:
(a) without limiting or affecting any other right or remedy available to it, the Seller shall have the right to suspend performance of the Services or delivery of the Products until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations and shall have no liability for its failure to perform its obligations;
(b) the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller’s failure or delay performing any of its obligations as set out in 2.6; and
(c) the Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Buyer Default.
3.1 The Seller shall use reasonable endeavors to comply with any loading and routing instructions associated with the delivery of the Products. The Seller reserves the right to allow or prorate shipments against all orders whenever, in its judgment, an oversold condition exists as to any particular product manufactured or sold by it. In the event of a Buyer Default, the Seller may decline to make further shipments without waiving any of its rights under such Order. If, despite a Buyer Default, the Seller elects to continue to make shipment, its action shall not constitute a waiver regarding, or otherwise diminish, the Seller’s legal remedies with respect to such default or any future default.
3.2 All product sales are made DDP (Delivered Duty Paid, Incoterms 2010) to the Buyer’s designated delivery address and the Seller shall pay all freight, duties, cartage and handling on behalf of the Buyer within the Warranty Period (as defined in clause 10.1). The Buyer shall then reimburse the Seller for all taxes, excise duties, or other charges which the Seller may be required to pay to any Government (national, state or local) upon the sale, production or transportation of the Products sold hereunder, and shipping charges as per quotation.
4.1 Risk in the Products shall pass from the Seller to the Buyer once the Products have been delivered to the relevant carrier.
4.2 The ownership of the Products shall not pass to the Buyer and full legal and beneficial ownership of the Products shall remain with the Seller unless and until all Products and Services under an Order are paid by the Buyer.
4.3 Products for which delivery is suspended pending payment by the Buyer, as well as Products of which delivery is wrongfully rejected or not accepted by the Buyer, shall be held and stored by the Seller at the risk and expense of the Buyer.
4.4 Until full payment for the Products has been received by the Seller, the Buyer is entitled to use the Products solely to the extent required in its ordinary course of business, and, to the extent possible, shall:
(a) keep the Products separate in a clearly identifiable location and not join them with any other products;
(b) notify the Seller immediately of any claims by third parties which may affect the Products; and
(c) adequately insure the Products.
4.5 If full payment for the Products is not received pursuant to the terms of Clause 7, the Seller, or its agent shall, at its option, have the right to enter the Buyer’s premises and seize such Products from the Buyer and shall be entitled to recover any associated costs from the Buyer.
5.1 Irrespective of any prices quoted by the Seller or listed on the Buyer’s order, an Order is accepted only at the prices shown on the Seller’s written quotation (the “Quotation”). Installation of utilities required for equipment is not included in the specified price.
5.2 The prices for any Services shall be calculated in accordance with the Seller’s normal rates as set out in the Quotation.
5.3 The Seller reserves the right to increase the prices for any Products or Services on an annual basis with effect from each anniversary of the Commencement Date.
6.1 Quoted prices do not include value added tax (VAT) or any other local excise, sales, use or similar taxes, which the Buyer shall additionally be liable to pay. Accordingly, in addition to the prices specified on the Quotation, the amount of any applicable VAT, excise, sales, use and/or similar taxes will appear as separate items on the invoice and will be paid by the Buyer unless prior to shipment the Seller receives an appropriate tax exemption certificate from the Buyer.
7.1 The Seller is entitled to invoice the Buyer after the Order Acknowledgement is submitted. Unless the Seller indicates another period agreed in the Order Acknowledgement, invoices must be paid in full within 30 days from the invoice date, in the currency specified in the invoice. Any exchange charges, any charges for no-par clearance of cheques or collection charges (including reasonable lawyers’ fees) will be paid by the Buyer.
7.2 Should payment not be made pursuant to Clause 7.1, the Buyer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 7.2 will accrue each day at 4% a year above the Bank of England’s base rate from time to time. The Seller may also suspend performance, terminate the Contract or reject the Buyer’s future orders until all outstanding payments are made and such non-payment shall constitute a Buyer Default.
7.3 All orders may be subject to credit approval by the Seller.
7.4 If the Seller appoints a collection agency or solicitor to recover any unpaid amounts, the Buyer must pay all reasonable costs of collection, including all associated reasonable legal fees.
8.1 The Seller shall not be liable for failure to perform or any delay in its performance of its obligations under the Contract if such failure or delay is occasioned by strikes, lockouts, labor difficulties, riots, inability or difficulty in obtaining or procuring supplies, labor or transportation, fires, storms, floods, earthquakes, explosions, accidents, acts of God, interference by civil or military authorities, whether legal or de facto, acts of the public enemy, war, rebellion, insurrection, sabotage, embargoes, orders given priority by any public authority or any other cause beyond the reasonable control of the Seller.
9.1 All intellectual property rights in and to or arising out of or in connection with the Products and/or Services (other than intellectual property rights in any materials provided by the Buyer) shall be owned and retained by the Seller.
9.2 Sale of the Products or parts thereof does not confer on the Buyer any license relating to (a) the structure of any devices to which the Products or parts may be applied or (b) a process or machine in connection with which they may be used.
10.1 The Seller warrants to the Buyer that the Products will be free of defects in material and workmanship for a period of one year commencing on final acceptance or ninety (90) days from shipping, whichever occurs first (“Warranty Period”).
10.2 The warranty in 10.1 covers the cost of parts, labor and technical support for Products purchased from the Seller. The warranty in 10.1 may include engineer remote diagnosis upon finding any defect, and if this cannot be fixed remotely field service labor and travel is included to restore the equipment to normal operation. The Seller will inform the Buyer of timeframe for repair upon diagnosis.
10.3 The Buyer shall permit the Seller to connect to the Products by remote access when necessary for maintenance or repair activities as part of the Seller’s warranty obligations or otherwise. This may include automatic software downloads and proactive monitoring, and access to performance data related to the Products, to gather and use products and resource usage data in various ways such as product development, quality initiatives, benchmarking and reporting services. The Seller has full ownership of all performance data gathered from all seller Products.
10.4 The Seller warrants to the Buyer that replacement parts will be new or of equal functional quality and warranted for the remaining portion of the original warranty or ninety (90) days, whichever is longer.
10.5 The Seller warrants to the Buyer that the Products and/or Services will conform materially with the relevant equipment specification and / or written materials (“Specification”). Seller does not warrant uninterrupted or error-free operation.
10.6 The Seller’s obligation under these warranties is limited to repairing or replacing at the Seller’s option defective non-expendable parts of the Product. These services will be performed, at the Seller’s option, at either the Seller’s facility or the Buyer’s business location. For repairs performed at the Seller’s facility, the Buyer must contact the Seller in advance for authorisation to return equipment and must follow the Seller’s shipping instructions. Freight charges and shipments to the Seller within the Warranty Period are the Seller’s responsibility. The Seller will return the equipment to the Buyer at the Seller’s expense.
10.7 The warranty obligation of the Seller shall not extend to defects that do not impair service, or to provide warranty service beyond normal business hours, Monday through Friday (excluding Seller holidays).
10.8 No claim will be allowed for any defect unless the Seller shall have received notice of the defect within thirty (30) days following its discovery by the Buyer after prompt inspection.
10.9 All used equipment purchased, including demo equipment, is sold as is.
10.10 The Seller recommends regular annual maintenance is completed after the Warranty Period expires.
10.11 The Seller warrants to the Buyer that any Services will be provided using reasonable care and skill.
10.12 The Seller assumes no liability under the above warranties for equipment or system failures resulting from:
(a) abuse, misuse, modification or mishandling;
(b) damage due to forces external to the machine including, but not limited to, acts of God, flooding, power surges, power failures, defective electrical work, transportation, foreign equipment/attachments or Buyer-supplied replacement parts or utilities or services such as gas; or
(c) improper operation, handling or maintenance.
In addition, this warranty does not apply if any equipment or part has been modified without the written permission of the Seller or if any Seller serial number has been removed or defaced.
10.13 No one is authorized to extend or alter these warranties on the Seller’s behalf without the written authorization of the Seller.
10.14 The Seller does not warrant that any equipment or system can be used for any particular purpose.
10.15 Except for the warranties expressly set out in this Clause 10, any other express or implied warranties (including the implied warranties of merchantability or fitness for a particular purpose) are excluded from these terms to the fullest extent permissible by law.
10.16 Should the Buyer have queries regarding purchased products, warranty or service please contact the customer service team by email: email@example.com
11.1 Before the Seller performs any services or repairs on Buyer’s Products, the Buyer will fully decontaminate all equipment or its component of biological, toxic or other dangerous materials or substances or any material and, if requested, the Buyer will submit to the Seller an accurate and completed certificate of decontamination.
12.1 For service level plans, please contact: firstname.lastname@example.org
13.1 The Seller shall not be liable to the Buyer whether in contract, tort (including negligence), breach of statutory duty or otherwise for consequential losses, damages, for anticipated or lost profits (direct or indirect), incidental, special, indirect or punitive damages, any failure to realize anticipated savings or benefits, loss of time, loss or corruptions of data, delays on projects or product launches, loss of goodwill, loss of opportunity, loss of operation time, loss of use or wasted management or staff time, even if advised of the possibility of such damages in connection with the Contract. The Seller’s aggregate liability relating to the Contract, including the Products or Services provided hereunder whether in in contract, tort (including negligence), breach of statutory duty or otherwise shall not exceed the amounts paid to the Seller by the Buyer for the relevant Order to which the claim relates.
13.2 Nothing in these terms and conditions shall limit or exclude the Seller’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable), (ii) fraud or fraudulent misrepresentation (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979, or (iv) any other matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
14.1 The Seller shall be entitled to:
(a) suspend by written notice to the Buyer any Services or further performance of a sale or delivery of Products or provision of Services set forth in an Order Acknowledgment;
(b) demand return and take repossession of any delivered Products which have not been paid for (and all costs relating to the recovery of the Products shall be for the account of the Buyer); and/or
(c) terminate the Order Acknowledgment, without prejudice to its right to claim alternative or additional damages, if:
(d) the Buyer defaults in complying with one or more of its obligations to the Seller, in particular if any payment from the Buyer is overdue or if the Seller reasonably believes that the Buyer is or will be unable to meet its obligations under the Order Acknowledgment and the Buyer fails to offer adequate security for the performance of its obligations under such Order Acknowledgment; or
(e) if the Buyer 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), 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
If one of the events referred to in this Clause 14.1 occurs, all claims the Seller may have against the Buyer on whatever basis will immediately become due, including the direct costs and expenses incurred by the Seller and any outstanding fees.
15.1 The performance of each party hereunder is subject to compliance with all applicable laws.
15.2 Neither party shall export, directly or indirectly, any Products (including software, incorporating any technical data) in breach of any applicable laws or regulations (“Export Control Laws”), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
15.3 Each party undertakes:
(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
(b) if requested, to provide the other with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
15.4 The Buyer will comply with all applicable import laws or other restrictions or conditions respecting the import of Items that are now in effect or are hereafter imposed by any government or other applicable jurisdiction. The Buyer shall be responsible for obtaining any necessary import permit, license or authorization at its sole cost and expense. The Buyer shall immediately notify the Seller if an import permit, license or other authorization is required in connection with any such import.
16.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of 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 based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
17.1 No variation of the Contract shall be effective unless it is in writing and signed by both parties (or their authorized representatives).
18.1 Any notice given to a party under or in connection with these terms or the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) send by email to the email@example.com
18.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt; or
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting; or
(c) if sent by email, at 9.00 am on the next Business Day after transmission.
19.1 These terms and conditions and associated Contract shall be interpreted and construed under the laws of England and Wales. The exclusive jurisdiction for any disputes (including non-contractual disputes or claims) arising out of or in connection with such contract shall be the courts of England and Wales.
If the Buyer has any questions about the quotation, ordering process, or these terms and conditions, please email Customer Services on firstname.lastname@example.org
Fluidic Analytics reference: TAC001 Issue 1