1   General

Thank you for doing business with our company. We value your custom and look forward to being of service to you. These Terms and Conditions shall apply to and govern any agreement between Modern Water: that Modern Water company or entity which made you the offer to supply goods and/or services; and you, the Buyer, to whom Modern Water’s offer was addressed.

Any     other     terms, conditions, warranties or representations, whether made prior to, collateral with or subsequent to the contract are excluded. No additional terms of any nature put forward by the Buyer, whether printed on the Buyer’s documents or in any other form, shall apply unless they are separately brought to Modern Water’s notice and express consent thereto is given in Modern Water’s written acceptance. This agreement and its terms shall be treated as strictly confidential.

 

2   Contract Date & duration of after-sales service contracts

  1. a) The contract shall become binding upon the parties only when Modern Water accepts an order for goods or services from the Buyer (the “Order”). Any quotation given by Modern Water shall be deemed to be an invitation to treat and not  an  offer  on  the  part  of Modern Water. For the avoidance of doubt, an Order may be oral or in writing and may, without limitation, include a signed copy of a work report.
  2. b) Any after sales service contracts shall once entered into continue unless and until terminated by either party with 3 months’ written notice to the other.

 

3   Cancellation

Unless otherwise required by law, orders placed and accepted cannot be cancelled except with our consent and on terms which indemnify us against loss.  Goods returned without our consent will not be accepted for credit.

 

4  Prices & Payment, Risk & Title, Inspection

  1. a) The prices quoted by Modern Water are the prices at the time of quotation only and the price to be paid shall, unless agreed otherwise, be the standard price ruling at the date of delivery, at the time of installation or at the time of carrying out a service referred to in the Order as the case may be. To the extent they relate to goods, all prices are, unless otherwise stated, payable in Pound Sterling. Any estimates shall be prepared according to good engineering practice without Modern Water guaranteeing or accepting any liability for the accuracy or lack of accuracy when compared to actual charges.
  2. b) Where the agreement between the parties does not specify other terms of payment the Buyer, shall pay invoices in full not later than 30 days from the date of invoice and, if elsewhere, against irrevocable confirmed letters of credit through a London Clearing Bank, payable within 30 days from presentation by Modern Water of shipping documents.
  3. c) Unless otherwise specified, all deliveries to Buyer by Modern Water shall be, at Modern Water’s option, either ExWorks (Cork, Ireland), or ExWorks (York, UK), according to Incoterms 2010. Modern Water shall make no provision for transportation insurance when Buyer is in control of the shipment and responsible for the freight charges, unless specifically authorized to do so in writing. No insurance charges will be allowed unless authorized in writing by Buyer.
  4. d) Notwithstanding any other provisions in the Order, these Terms and Conditions or any other applicable terms and conditions, all goods shall remain the property of Modern Water until Modern Water has been paid in full. The Buyer shall not endeavour to dispose of, or mortgage, or charge, or lend, or part with possession of the goods, other than in accordance with the agreed payment terms and only with the express prior written consent of Modern Water.

 

  1. e) Inspection: Buyer must promptly inspect and accept any goods delivered or made available for delivery. In the event they do not conform to applicable specifications, Buyer shall promptly notify Modern Water of such non- conformance in writing and Modern Water shall repair or replace said goods in accordance with paragraph 8 of these Terms and Conditions. Buyer shall be deemed to have accepted the goods and to have waived any non- conformance in the event that such written notification is not received by Modern Water within thirty (30) days of delivery.

 

5  Overdue Accounts

The Buyer shall be liable to pay interest at 1.5% per month calculated on a daily basis on all overdue accounts, or at the maximum rate of interest permitted by law, whichever is lower. The Buyer has no right of set-off in payments due to Modern Water.

 

6  Limitation of Liability & indemnity

  1. a) Except as provided in Section 7 of this contract and to the greatest extent allowed by law, Buyer agrees that Modern Water’s aggregate liability to Buyer and others for any  and  all   injuries,  claims,  demands,  losses, expenses or damages, of whatever kind or character, arising out of or in any way related to this contract shall be limited to the lesser of $50,000 or the total amount of compensation received by Modern Water hereunder, whichever is greater.  In the event that claims involving this contract  are  sought  to  be  resolved  through litigation, the prevailing party shall be entitled to collect from the other party all litigation costs and expenses, including attorney’s fees and  expert fees, incurred in successfully prosecuting or defending such action.   All claims arising under or in connection with this contract must be filed  in  a  court  of  appropriate  jurisdiction within  one  year  of  the  expiration of  the  Guarantee Period as defined in Section 7 of this contract or be forever barred.
  2. b) Modern Water   shall   indemnify, defend   and   hold harmless Buyer, its officers, directors, agents, employees and affiliated and parent companies against claims, demands and causes of action of third parties, including attorney’s fees and costs of defence, for personal injury, disease or death, and damage of property arising from this Contract to the extent caused by the negligence or wilful misconduct of Modern Water.   To the extent arising from the performance of services including installation, Modern Water’s aggregate liability under the above indemnity shall not exceed the recoveries under the types and limits of insurance set forth in Section 15 of this contract and Buyer agrees to release, defend and indemnify Modern Water from and against all further liability under the above  indemnity arising  from  this Contract.
  3. c) Modern Water shall not be liable for any indirect or consequential loss or damage suffered by the  Buyer howsoever caused, including, without limitation, delay, loss of production, loss of profits, loss or damage to other property or goods.
  4. d) By placing an Order, the Buyer agrees to fully indemnify Modern Water, its officers, directors, agents, employees and affiliated and parent companies, against all claims, cost, expense, loss or damage whether direct or indirect or consequential which Modern Water may suffer, howsoever arising from the Buyer’s breach of any of its obligations under   the   Order, these Terms and Conditions or any other applicable terms and conditions.

 

7   Guarantee

  1. a) Modern Water accepts liability for a period of twelve (12) months from the date of delivery, or, where the goods are installed by Modern Water, from the date of installation, or, where a  service  is  being  included  by Modern Water, from the date of such service, to make good any defects in goods supplied by Modern Water which such goods develop under proper use as a result of faulty materials or bad workmanship in manufacture, subject to the following provisions:
  2. The goods have been installed by Modern Water or installed in accordance with instructions given by Modern Water.
  3. The goods have at all times been operated in accordance with Modern Water’ operating and maintenance instructions.

Ill.  The nature of the input water or other governing data to the plant has not changed in composition by a significant amount.

  1. There has been no exchange or modification of the goods or the parts thereof after installation without prior agreement with Modern Water.
  2. That only approved parts,  chemicals  and consumables are used.
  3. None of the settings of the plant control gear (save controls designed for customer’s use) have been altered without written authority from Modern Water.

VII.                             The plant has not been misused or damaged by external force.

VIII.                            Where a service includes the repair of the goods, the guarantee shall only cover the repaired part of the goods and shall never, unless expressly agreed otherwise, extend beyond a period of 2 years from the start of the original guarantee period for the original service provided, which period is set out in the first paragraph of this condition 7(a), above.

  1. b) No guarantee is extended to consumable items, such as, without limitation, reagents, batteries, electrodes, and light bulbs.
  2. c) Save as aforesaid, Modern Water accepts no liability for any goods provided or installation or services carried out by Modern Water.

 

8   Claims and Returns of Goods

The entitlement of  the  Buyer  to  any  benefit  of  the guarantee shall be subject to the following conditions:

  1. a) That any complaint shall be delivered in writing to Modern Water in  the  case  of  alleged  defects within twenty one (21) days of the date of the alleged defect arising or being discovered by the Buyer and in any event not later than twenty-one (21) days after the expiration of the guarantee period.
  2. b) That the Buyer shall prove to Modern Water’s satisfaction that the alleged defect is one covered by one or more of the provisions of guarantee and Modern Water shall have sole discretion whether the goods, or the part in question, should be made available for inspection by Modern Water’s representative at the Buyer’s premises or whether the same should be returned at the Buyer’s cost and risk to Modern Water. The Buyer shall also be responsible for all costs of redelivery of an alleged defective part after examination and / or repair by Modern Water unless Modern Water in its discretion shall otherwise decide.
  3. c) Notwithstanding the foregoing permission  in  writing from Modern Water must be obtained before any goods are returned.

 

9   Variations and Other Events

  1. a) All requests for variation of an Order must be in writing. If Modern Water in its sole discretion agrees to comply with the request:
  2. I) then the Buyer must pay Modern  Water  the amounts reasonably invoiced for the variation; and
  3. II) Buyer acknowledges that any variation may lead to additional costs and impact any time periods agreed between the parties.
  4. b) Modern Water may increase the price stated in an Order  if  a  delay  occurs  that  is  not  attributable  to Modern Water.
  5. c) Modern Water may make changes to the goods, their delivery or packaging:

–                                  without notifying the Buyer, if the changes improve the goods or do not substantially deviate from their original specifications for the goods; or

–                                  in other cases, with the Buyer’s approval.

 

10  Variation of Order Terms

Any attempt by the Buyer unilaterally to vary the content of an Order (including these Terms and Conditions), whether orally or in writing, is void. Any variation of the Terms and Conditions of any Order will become binding only if agreed in writing by Modern Water.

 

11  Drawings

  1. a) All drawings and design information supplied by or on behalf of Modern Water remains or becomes the property of Modern Water and will not be copied, reproduced, or disclosed to a third party without the written consent of Modern Water. Dimensions, weight and other details on such drawings and documents are approximate only unless certified by Modern Water.
  2. b) If required   by   the   Buyer, drawings   and   design information will be submitted for approval. The period allowed for approval of drawings or design information is limited to 10 working days from receipt thereof and delays in excess of this period may result in a delay in delivery, without compensation being payable to the Buyer.

 

12 Buyer Default:

If:

  1. a) the Buyer fails to pay when due any amount owing to

Modern Water; or

  1. b) the Buyer breaches any other provision of an Order, these Terms and Conditions or any other applicable terms and conditions and fails to remedy the breach within 7 days after receiving written notice requiring it to do so; or
  2. c) any step is taken to appoint a receiver (including an administrative receiver), a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of part or all of the assets or businesses; or
  3. d) any step is taken by a mortgagee to exercise any rights to take possession of any property of the Buyer; then: Modern Water may do either or both of the following (in addition to any other rights Modern Water may have):
  4. require the Buyer to pay immediately the price of any goods or services invoiced but unpaid or to pay in advance of delivery or completion; or
  5. suspend or cease supplying any goods or services to the Buyer.

 

13 Delivery, Force Majeure and Storage

  1. a) Where Modern Water has agreed to deliver the goods:
  2. It will make reasonable endeavours to deliver on or before the estimated date of delivery, but Modern Water excludes all liability for all direct and indirect consequences of delay caused in whole or in part by strikes, lock-outs, works breakdown, fire, shortages of materials or labour, Government embargoes, refusal or delay  in  granting  export  or  import  licences or permits,   inabilities   of   sub-contractors,   delay   in approval of engineered drawings or any other event of whatsoever nature which is beyond the  reasonable control of Modern Water.
  3. The Buyer shall provide clear access and space for receiving the goods.

III.                               Modern Water shall not be responsible for offloading or putting goods into place, unless this is expressly agreed by the parties.

 

  1. Modern Water shall not be responsible for damage or deterioration in transit unless the Buyer notifies Modern Water thereof in writing within 10 working days of delivery.
  2. b) If Modern Water does not, within ten (10) working days after the date of notification that they are ready for despatch, receive what it considers to  be  sufficiently precise forwarding instructions to despatch the goods, then the Buyer shall accept delivery when tendered by Modern Water at a date and time of its choosing or arrange storage. Modern Water shall be entitled to arrange storage on the Buyer’s behalf and the Buyer undertakes to pay for all reasonable charges made for such storage, for insurance and delivery which Modern Water invoices to the Buyer.

 

14  Buyer’s Site, Licences and Installation

  1. a) The Buyer hereby warrants that it has provided or will provide in good time Modern Water with all available information regarding the Buyer’s site, structures, facilities, buildings and land (together or individually the “site”) and that it will provide all licences and permits required.
  2. b) Where Modern Water obtains any knowledge of the site or other site on which the goods are to be installed, then such knowledge shall not mean that Modern Water thereby has knowledge of all factors affecting its services, goods. The Buyer shall be responsible for the site’s condition to ensure an adequate environment for the services, goods and indemnifies Modern Water with regard to any risks, contingencies and other circumstances which may affect the site, including, without limitation, any contaminated or hazardous substances.

 

15  Insurance

If this contract includes services including installation, Modern Water shall maintain Worker’s Compensation and Employer’s Liability Insurance in accordance with requirements of the state in which any services are being performed, comprehensive liability insurance (including contractual and contractor’s protective liability coverage) with combined single limit of $1,000,000 per occurrence for bodily injury and property damage, automobile liability.

coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and contractor’s pollution liability insurance in the amount of $1,000,000.

 

16 Additional charges

Modern Water may make and, if made, the Buyer shall pay reasonable costs and charges in addition to the contract price if:

–                                  the presence on site of a representative of Modern Water is required for installation, commissioning or after sales services;

–                                  installation or commissioning is required and this is delayed by reason other than the fault of Modern Water; –      samples are to be taken, analysed or disposed of.

–                                  contaminated materials are uncovered, analysed or disposed of;

–                                  after sales, delivery or any other services are required and for materials used for such purposes; and/or

–                                  any services that are carried outside normal business hours on normal working days.

 

17 Miscellaneous

  1. a) The construction, interpretation and performance of all transactions under the Order, these Terms and Conditions and any other applicable terms and conditions shall be governed by the laws of the State of Delaware, without regard to its principles or laws regarding conflicts of laws.
  2. b) If any of the provisions referred to in sub-paragraph 16(a) above violates any Federal, State or local statutes or regulations of any countries having jurisdiction of this transaction, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions.

 

  1. c) Unless otherwise specifically agreed by Modern Water and Buyer, any dispute arising under or in connection with the Order, these Terms and Conditions and any other applicable terms and conditions shall be adjudicated in order of preference by a court of competent jurisdiction (i) in the United Kingdom
  2. d) There shall be no assignment of the rights or obligations contained in this contract by either party and any such assignment shall be null and void.
  3. e) This contract constitutes the  entire  understanding between the parties.    Any waiver, modification or amendment of this contract shall be effective only if in writing and signed by an authorized representative of Modern Water.   Modern Water hereby objects to any prior or   subsequent purchase  orders,  work  orders, invoices, acknowledgement forms, manifests and other documents received from Buyer that would otherwise have the effect of modifying or abrogating these Standard Terms and Conditions in whole or in part.