1. DEFINITIONS

• “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller.
• “Date of Dispatch” means that dated deemed to be the date on which the Goods are actually dispatched ex works.
• “Defects Liability Period” means a period of twelve months running from the date of dispatch or other date expressly agreed in writing by the Seller.
• “Goods” means the articles/components/materials which the Purchaser agrees to buy from the Seller.
• “Price” means the price for the Goods excluding delivery charges and VAT.
• “Purchaser” means the person, business or other entity who or which purchases or agrees to purchase the Goods from the Seller.
• “Seller” means GALENE Water Treatment, LLC, 516 NE 190^th St, Miami, FL 33180

2.  CONDITIONS APPLICABLE

• These conditions shall apply to all contracts for the sale of Goods by the Seller to the Purchaser to the exclusion of all other terms and conditions including any terms or conditions which the Purchaser may purport to apply under the purchase order, confirmation order or similar document.
• All orders for Goods shall be deemed to be an offer by the Purchaser to purchase Goods pursuant to these Conditions.
• Acceptance of delivery of the Goods shall be deemed to be conclusive evidence of the Purchaser’s acceptance of these Conditions.
• Any variation to these Conditions (including any special terms and conditions) agreed between the parties shall be inapplicable unless agreed in writing and signed by a Director of the Seller.
• For the avoidance of doubt, no servant or agent of the Seller has authority to agree any oral variation to these Conditions.

3. PRICE AND PAYMENT

• All prices quoted by the Seller shall remain fixed for one month or such other period or periods agreed in writing and thereafter shall be subject to revision at the option of the Seller.
• Payment of the price, delivery charges (if applicable) and VAT shall be due within 30 days from date of invoice (based on credit approval), unless defined otherwise on the proposal and thereafter shall be subject to revision at the option of the Seller.
• Time for payment shall be of the essence.
• In the event of any delay on the part of the Purchaser which prevents the Seller delivering the Goods as arranged:
  1. payment shall remain due on the date of invoicing ignoring the period of delay.
  2. the Purchaser shall be liable for any extra costs in labor and/or materials incurred as a result of the delay.
• in the event of failure to make payment as specified, the Seller shall take such action as it considers necessary to recover the price and delivery charges together with any pecuniary loss, including loss of profit and interest at the US Prime base rate plus 8% per annum shall be payable on the total sum due as from due date. Nothing in these Conditions shall in any way prejudice the remedies whether statutory or otherwise exercisable by the Seller on non-payment of the price.

4. WARRANTIES AND LIABILITY

• Provided always that
  1. The Goods are handled, assembled, installed, used, maintained and investigated in accordance with the Seller’s operating and installation instructions or other notices or written advices issued in respect of Goods
  2. The Seller is provided with such facilities for inspection and testing of the Goods as the Seller may reasonably require; and iii) If the Goods are suspected to be defective, the defect complained of must be reported to the Seller in writing within 7 days of the alleged defect becoming apparent and in any event prior to the 12 month Defects Liability Period, then, in respect of any defective Goods or parts of the Goods manufactured by the Seller and supplied to the Purchaser under this agreement, which are established to the Seller’s reasonable satisfaction to have been defective at the time of dispatch solely from faulty design, materials or workmanship and where such defect was neither reasonably ascertained to the Purchaser its servants or agents on or after delivery, the Seller will at the discretion of the Seller either:

• Repair the Goods
• Replace the Goods; or
• Provide a cash payment (or, if preferred by the Purchaser a voucher redeemable against a comparable product purchased direct from the Seller) to an amount equivalent to the average residual value as the date of notification of the Goods had they been free from defect

• The seller’s warranty under clause 4(a) does not extend to Goods not of the Seller’s manufacture, but at the discretion of the Seller, the Seller will endeavor to obtain for and at the expense of the Purchaser the benefit of any other warranty in relation thereto. The provisions set out in clause 4(a) and (b) are offered as an extra benefit and do not affect the Purchaser’s statutory rights
• In the event that the cause and responsibility for a defect or possible defect as envisaged by clause 4(a) above
  1. cannot reasonably and practically be ascertained by the Seller; and/or
  2. is not reported to the Seller during the Defects Liability Period; and/or

• is previously deemed by the Seller not to fall within clause 4(a)

repair or replacement of the Goods or any part thereof or payment in respect thereof is at the absolute discretion of Seller

• in the event that the Goods are not handled or assembled or installed or used or maintained or investigated strictly in accordance with the Seller’s operating and/or installation instruction or other notices or advice issued in respect of the Goods, the Seller shall have no liability whatsoever for any defect in the Goods or for any consequences arising therefrom;
• Save as provided in clauses 4(a) to (d) of these Conditions, all terms, whether made expressly or implied and whether made by the seller or its servants or agents relating to the quality and or fitness for purpose of the Goods or any part of the Goods are expressly excluded to the fullest extent permitted by law;
• without prejudice to the generality of clause 4(e) above, in the event of the Seller i) breaching this agreement; and/or ii) committing any tort, including the negligence of its servant or agents, the Seller will have no liability to the Purchaser save that:
  • The Seller will indemnify the Purchaser in respect to any death or personal injury caused thereby and in respect of which no limitation or exclusion is intended
  • The Seller will indemnify the Purchaser in respect of any fraud on behalf of the Seller subject to the exclusions and limitations set out in clauses 4(g) to (i) below:
• Without prejudice to the generality of the above, in no event shall the Seller be liable for:

1. any pollution or contamination of land or waters whether arising directly or indirectly from any breach or tort
2. any damage to property whether arising directly or indirectly from any breach or tort
   • the cost of assessing or preventing or minimizing or mitigating or rectifying or allaying any pollution or contamination of land or water whether arising directly or indirectly from any breach or tort

1. The cost of assessing or preventing or mitigating or rectifying or allaying any damage to property whether arising directly or indirectly from any breach or tort
2. loss of profits, business revenue, goodwill or anticipated savings whether arising directly or indirectly from any breach or tort vi) consequential loss or damage vii) any indemnity in respect of 4(g)(i) to (vi) above.

• without prejudice to the generality of the above, the liability of the Seller for all losses caused by the breach or tort giving rise to a claim, shall be limited to 1 times the purchase price of the defective product or the product directly linked to the breach of contract and/or tort.

5.PACKING

The prices quoted include normal packaging for destinations on the mainland of USA. Any further or special packaging of goods sold subject to these Conditions shall be charged extra unless specifically included in the price quoted. Unless provided to the contrary containers and packaging will not be returnable.

6. DELIVERY OF GOODS

(a) All delivery dates and times are estimates only. Time is not of the essence in relation to delivery. The Seller will not accept any liability for late delivery unless it has been agreed in writing signed by a Director of the Seller.

(b) The Purchaser shall make all arrangement necessary to take delivery of Goods whenever they are tendered for delivery.

• If the Seller does not receive forwarding instructions sufficient to enable it to dispatch the Goods within 2 working days after the date of notification that they are ready for dispatch, the Purchaser shall take delivery or arrange for storage. If the Purchaser does not take delivery or arrange for storage, the Seller shall be entitled to arrange storage either at its own works or elsewhere on the Purchaser’s behalf and all charges for storage, for insurance or for demurrage shall be payable by the Purchaser.
• If the delivery of the Goods takes place elsewhere than at the Seller’s address, the costs of carriage and any insurance which the Purchaser reasonable directs the Seller to incur shall be reimbursed by the Purchaser. The Purchaser will be responsible for safe offloading.
• The Seller’s drivers have been instructed to obtain a signature from the Purchaser when the Goods are delivered. If, however when the Goods are delivered no person can be found to sign on behalf the Purchaser the Seller will nevertheless deliver the Goods after which it cannot accept any further responsibility for them. The Seller shall not be responsible for inquiring as to the authority of the signatory to sign on behalf of the Purchaser.
• The seller shall not be liable for any loss or damages whatever due to failure by the Seller to deliver the Goods (or any or part of them) promptly.
• Notwithstanding that the Seller may have delayed or failed to deliver the Goods ( or any part of them) promptly the Purchaser shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within one month of the date of the invoice.
• the Seller shall be entitled to make delivery by instalments.
• Liability for any part of the Goods lost or damaged in transit will only be accepted by the Seller in the following circumstances:

1. In the case USA delivery consigned carriage paid – where damage is reported in writing both to the carrier and the Seller with 7 days of receipt by the Purchaser or in the case of non-delivery within such time from the date of dispatch as will enable the Seller to make a successful claim on the carrier;
2. In the case of export contracts, – according to export contract (e.g. f.o.b or c.i.f) subject to which Goods are exported.

7. DRAWINGS

Where the price includes part cost of drawing, the ownership of the drawings shall at all times belong to the Seller including copyright.

8. ACCEPTANCES AND CANCELLATION

• The Purchaser shall examine the Goods delivered forthwith upon delivery. If following such examination, the Goods or part thereof are claimed to be defective by reason of faulty design, materials or workmanship, such claim together with particulars of the matter complained of shall be notified in writing to the Seller within 7 days of delivery.
• The Purchaser shall be deemed to have accepted the Goods within 7 working days after delivery or collection by the Purchaser.
• After acceptance the Purchaser shall not be entitled to reject Goods which are not in accordance with the contract.

(d) If for any reason an order is cancelled prior to delivery or collection the purchaser will be liable to indemnify the Seller for all costs incurred with the addition of a profit margin of 15% (fifteen per cent) of the said costs.

9. INSTALLATION BY SELLER or PURCHASER

(a) In the event that the Seller shall install and/or commission the Goods, the Purchaser shall take full responsibility for all uninstalled Goods or parts thereof pending installation and, in preparation for and during the execution of the work by the Seller

• Provide the Seller with full and complete information about the site and working conditions thereon
• Provide the Seller with all site and geographical surveys
• Provide a suitable place for installation together with any necessary lighting, water and other facilities
• Provide a suitable base designed fit for purpose, flat, level and within GALENE’s specified tolerance
• Provide a suitable space for the safe building of tanks in accordance with the agreed dimensional requirements during tank selection
• Allow the seller to commence and proceed with installation work without interruption
• Ensure that, where other trades are involved, all necessary work has been previously completed to enable the Seller to execute its work
• Make available any necessary storage or protective covering against the elements of the weather.

(b) Once the Goods are delivered to the site, irrespective of who is installing the tank(s) the Purchaser is responsible for:

• Insuring the Goods
• Safe, Secure, Protective Dry Storage of the Goods.

(c) The Seller will not accept any liability for any Goods that are missing or damaged following delivery and will not accept any liability for any delay caused or consequential costs as a result of missing or damaged Goods following delivery to Purchaser’s site.

10. DESIGNS AND SPECIFICATION

• The design and specification of stand units or components manufactured or sold by the Seller as described in brochures, sales literature or other documentary form are subject to alteration without notice.
• Where the service includes design, the price quoted includes a maximum of two revisions of the drawings. If further revisions are required, the Purchaser will be liable for the additional cost of preparing the revised drawings.

11. TAXES

All government taxes are liable on the Goods manufactured or supplied are charged as extra unless otherwise stated.

12. RETENTION OF TITLE

• Notwithstanding delivery of the Goods to the Purchaser and the passing of risk therein, the ownership of and the title to the Goods will remain with the Seller until the seller has received payment in full of the price of the Goods and all other debts then due by the Purchaser to the Seller.
• Until ownership of and title to the Goods has passed to the Purchaser (provided the Goods have not been resold) the Seller may require the Purchaser to return the Goods or any part thereof failing which the Seller shall be entitled to enter the premises of the Purchaser or any third party where the Goods are stored to take possession of the Goods or any part thereof.
• Notwithstanding that the Goods (or any part of them) remain the property of the Seller; the Purchaser may sell or use the Goods in the ordinary course of the Purchaser’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Purchaser on the Purchaser’s behalf and the Purchaser shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.

13. INSOLVENCY

The Seller shall have the right to terminate the contract forthwith by notice in writing where the Purchaser becomes insolvent or bankrupt or makes any offers to make any arrangement with its creditors or suffers a receiver to be appointed or being a body corporate enters into  liquidation or has a petition to wind up against it or becomes subject to an administration order, and in any such cases the Seller shall have no further obligation hereunder without prejudice to the rights of the Seller under Clause 12 (b) the price for all goods delivered shall become immediately due and payable.

14. PRODUCT LIABILITY

• Any advertisements, information or labelling supplied by the Seller relating to the Goods, have been prepared to comply with relevant (if any) statutory regulations with the aim of providing information for the end users as to the physical characteristics of the Goods and precautions to be taken with regard to their use. The Purchaser undertakes to the Seller:-

• Only to use in relation to the Goods information supplied or approved by the Seller.
• Not to remove from the goods prior to re-sale any information attached to the Goods by the Seller.
• To supply with the Goods any information supplied by the Seller for the end users.
• Not to make any statement, representation or claim or give any warranty to any person in respect of the Goods save as to the Seller’s information or as specifically authorized by the Seller.   

• The Purchaser indemnifies the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with any claim or paid or agreed to be paid by the Seller in settlement of any claims that the Goods are defective to the extent that they are awarded or incurred as a result of the Purchaser’s failure to comply with its obligations under this clause.

15. NO SET OFF

The Purchaser may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Purchaser may have or allege to have for any reason whatsoever. 

16. FORCE MAJEURE

The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control including but not limited to acts of God, pandemics, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may without liability on its part, terminate the contract or any part of it.

17. SEVERABILITY

If any term of these Conditions is to any extent invalid, illegal or incapable of being enforced, such term shall be excluded to the extent of such invalidity, illegality or unenforceability; all other terms hereof shall remain in full force and effect.

18. WAIVERS

Any failure by the Seller to exercise any rights under these Conditions shall not constitute a waiver or prevent the subsequent exercise of such rights.

19. NOTICES

Notices required to be served may be sent by first class post to the Seller’s address as stated in these Conditions and by email to the address provided when the order is accepted. Any notice will be treated as having been received by post on the fifth business day following mailing and by email the same day if sent between 9:00am and 5:00pm on a business day if outside these hours on the next business day.

20. RIGHTS OF THIRD PARTIES

The Contracts (Rights of Third Parties) Act 1999 shall not apply to this contract and no person other than the parties to this contract shall have any rights under it.

21. ARBITRATION

All disputes, controversies or claims of any sort, arising out of or in any way relating to this Agreement, its negotiation, and the Services provided pursuant to it, whether based in contract, tort, regulation, or any other legal or equitable theory (collectively “Disputes”), shall be resolved by binding arbitration.  Arbitration shall be conducted within the geographical limits of the applicable federal district court where the Covered Property is located, or such other location upon which both parties mutually agree.  The commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes of the American Arbitration Association (the “Arbitration Rules”) in effect at the time arbitration is demanded by either party shall govern the arbitration proceeding and the selection of one neutral arbitrator to preside over the proceeding.  The arbitrator is empowered to decide all Disputes and all questions related to the enforceability and scope of these Dispute Resolution provisions including but not limited to the validity, interpretation and applicability of these Dispute Resolution Provisions

22. CLASS ACTION  AND JURY TRIAL WAIVER

Each party to this agreement may bring a Dispute against the other only in its individual capacity and not as plaintiff or class member in any purported class or representative proceeding.  Each party gives up or waives any right it may have to have any Disputes between them resolved by a jury.

23. JURISDICTIONS

These terms are subject to the law of the Florida, USA and the courts of Florida shall have non-exclusive jurisdiction.