GENERAL TERMS AND CONDITIONS OF SALE FOR FLAMAWAY (2024 version)

All products and services supplied, including any associated services for installation carried out by Flamaway (China) Company Limited (in Chinese: 苏州离火贸易有限公司; hereinafter referred as “Flamaway”) to any purchaser (“Purchaser”) are subject to these General Terms and Conditions of Sale for Flamaway (hereinafter referred as “General Terms and Conditions”). Flamaway does not accept any (purchase) conditions, clauses, etc., of the Purchaser that are hereby expressly and indisputably refuted. These General Terms and Conditions also apply to all future transactions. Any changes to these General Terms and Conditions must be expressly agreed to in writing beforehand by Flamaway.

The quotations drawn up by Flamaway are not binding or obligatory. With respect to the Purchaser, they apply exclusively as an offer for sale without any obligation and include the acceptance period (“Acceptance Period”), irrespective of the period the item/service is offered for sale, this being a maximum of three months, unless this has been agreed or noticed otherwise in the quotations. After this Acceptance Period, Flamaway can no longer be held to the proposed quotation. Flamaway retains the right to send out a new quotation within the Acceptance Period of the issue of the initial quotation and before the offer has been accepted by the Purchaser, this new quotation then supersedes the original offer. The sales contract is entered into when the Purchaser accepts the order strictly in accordance with the terms of the quotation. Should the acceptance by the Purchaser deviate from the offer of Flamaway, this is deemed to be a new offer and should be regarded as being for a new, no obligation quotation to Flamaway and unless otherwise expressly agreed by Flamaway in writing, the new offer apply for a new acceptance period of a minimum of three months.

In the case where the commission undertaken by Flamaway consists of providing advice, then this is regarded as a “best effort” undertaking, that Flamaway will carry out to the best of their ability. In no case will the Purchaser be released from their own obligations to carry out tests and checks of the advice provided by Flamaway regarding the (non-exhaustive) suitability, use and properties of the product.

All goods sold are transported with the risk borne by the Purchaser. This applies even if it has been agreed for the goods to be sent cash on delivery. In the case of any complaints regarding goods damaged in transit, the Purchaser should address their complaint in writing to the transportation company within the set time limits and send a copy of their complaint to Flamaway.

Delivery take place in accordance with the terms of trade that were agreed in the contract of delivery and in accordance with the terms that applied at the time the contract was signed, with the INCOTERMS being applicable. The proposed delivery deadlines are not binding on the part of Flamaway and can in no way be construed as giving cause for claims for damages.

All information, instructions and recommendations issued by Flamaway regarding the implementation, technical properties, applications, concepts and use of the products are based on the normal use of these products. The Purchaser should, and shall procure its Downstream User to, also determine whether the goods supplied need to be tested and whether the materials of the products they have ordered are suited to the purposes for which they wish to use them. Flamaway cannot be held liable for damage attributable to incorrect use of their products, nor can they be held liable for circumstances in which their products are used and that are beyond their control and/or the methods of use. In such cases, Flamaway cannot be deemed to be liable for the services provided by a product, the concept, the technical properties and the finish of the product. This applies to both the Purchaser and the Downstream User or third parties.

Should the price of a product to be delivered or the payment conditions be changed by Flamaway between the acceptance of the quotation and the day of deliver, Flamaway is entitled to apply the new prices and/or payment conditions that apply, irrespective of the prices and conditions that applied at the time the quotation was accepted. Flamaway will bring these changes to the attention of the Purchaser, who is entitled to dissolve the agreement within 15 days of Flamaway informing them of such changes. Any such termination of the agreement must take place by means of a recorded delivery letter, addressed to the registered offices of Flamaway at No.8 Chengpu Road, Shengpu, Suzhou Industrial Park, China.

All Flamaway invoices are to be paid immediately. The same applies to the drawing of bills. If the purchase price is still outstanding on the due date, this is regarded as a material breach of the Purchaser under the agreement. In the case of incomplete or non-payment of the purchase price on the due date, Flamaway is entitled, without any recourse to default proceedings, to claim annual interest of 10 % on the unpaid sum, as of the due date of the invoice against the Purchaser and Flamaway is also entitled to suspend or any and all fulfillment of its obligation under the agreement.

Irrespective of the location at which the transfer of goods takes place, or the documents, the payment must always be made by the purchaser to Flamaway.

1. General details

The goods supplied by Flamaway remain the property of Flamaway until full payment has been made of the sale price. If payment is not made on time, Flamaway is entitled, without premature termination of the sales agreement and without any granting any period of grace, to demand the temporary return of their property with the costs of this being borne by the Purchaser, until payment has been made in full of the purchase price. This applies without prejudice to the right of Flamaway to claim damages due to not being able to make use of the product.

2. Extended retention of title

In cases where the Purchaser has in fact paid the purchase price for the delivered goods but there are other outstanding demands owing to Flamaway, then ownership of the goods delivered only transfers to the purchaser once the remaining outstanding demands have been paid off.

3. Retention of title with processing clause

In cases where the Purchaser, notwithstanding the fact that they have outstanding demands owing and despite the retention of title, has processed the goods, Flamaway will be considered to be the manufacturer of these goods and Flamaway will gain full ownership rights of the newly produced goods.

4. Retention of title with combination and processing clause

In cases where the goods supplied by Flamaway have been added or mixed with materials of the Purchaser (hereinafter referred as “Purchaser’s Materials”), it is deemed that agreement has been reached between the parties that the Purchaser transfers the joint ownership of the Purchaser’s Materials to Flamaway, making use of a proportional calculation of the invoiced value of the goods supplied by Flamaway, with regard to the invoiced amount of the Purchaser’s Materials.

5. Extended retention of title with general transfer

The Purchaser is strictly prohibited from selling-on the purchased goods for as long as the Purchaser has not met their payment obligations to Flamaway. At the point in time that the agreement with Flamaway is signed, all demands and claims relating to the sale of the goods, for which Flamaway retains right of ownership, rest with the Purchaser. In such cases where Flamaway has acquired a joint right due to processing, adding or mixing, proportional transfer of rights will be made in favour of Flamaway, whereby the value of the goods supplied with retention of title by Flamaway will be compared with the value of the goods provided by the third party. From the moment of entering into the agreement with Flamaway, the Purchaser bears the costs of all confirmed, future demands for payment of the balances and claims under the current account to be paid to Flamaway, of the amounts of the outstanding demands made by Flamaway.

6. Right of acquisition/disclosure

At the first request of Flamaway, the Purchaser shall provide all necessary information regarding the inventory of the goods that are the property of van Flamaway and the demands that have been transferred to Flamaway. Flamaway is entitled to inspect the goods on site to establish their usefulness and to draw up an inventory. At the request of Flamaway, the purchaser shall also confirm that the packaging shows that the goods are the property of Flamaway (also in the case of re-labelling) and the Purchaser will inform their clients that their demands have been transferred to Flamaway and expressly state that relinquishing payment can only be made to Flamaway.

Should the Purchaser remain in default by not making payment or should there be grounds that raise concerns regarding the solvency of the purchaser, Flamaway may immediately revoke payment facilities previously granted by them or agreed by the parties. Flamaway retains the right to demand sufficient sureties are provided on any subsequent deliveries.

1. When goods have been supplied by Flamaway, the Purchaser is under an obligation to carry out the normal checks on the goods. Any faults that are found during such checks, should be brought to the notice of Flamaway in writing within fifteen days of receipt of the goods, otherwise the goods supplied by Flamaway shall be deemed as being checked and accepted by the Purchaser. Any other defects that are not discovered at the first normal inspection, should be reported to Flamaway in writing within fifteen days of being discovered. When informing Flamaway of the defects, the nature and extent of the defects should be described in detail. This does not abrogate the Purchaser from their payment obligations as laid down in Article 9.

2. In cases where the product has exhibited defects and the Purchaser has informed Flamaway of these defects in accordance with the abovementioned clause, Flamaway:

• can offer to rectify the fault themselves, or provide the Purchaser with products that are fault free;
• Flamaway retains the right to make at least two attempts to comply with their obligations.

Flamaway is in principle liable for the damages they occasion, in accordance with the stipulations of PRC law. The value of damages can never be greater than the price of the products provided by Flamaway linked with the specific incident of damages. Nethertheless, the liability of Flamaway in cases of not meeting their key contractual obligations is limited to reimbursement of foreseeable damages occasioned by their non-compliance. In the case of default of non-key contractual obligations, all liability of Flamaway is excluded. In the case of Flamaway not being able to comply or not complying in time with key contractual obligations, Flamaway is not liable when the inability to comply or late compliance is caused by the Purchaser.

Within the framework of these General Terms and Conditions, a “tolling customer” is regarded as any customer who makes use of the services of Flamaway and that is invoiced for these services. These services may be of an operational nature, such as production and logistics or may be related to laboratory work (for example quality control) and other departments. When the production is governed by the laws of EU, within the framework of the REACH legislation, all “tolling customers” will act as Third Party Representatives for the preregistration of substances created, either in production (chemical reaction) of through importation from outside of the EU, and Flamaway, as the manufacturer of the products, will carry out the preregistration as soon as they receive the necessary information in the form of a recorded delivery letter from the “tolling customer”.

Except when expressly agreed otherwise, the Purchaser is responsible for complying with all legal and regulatory directives relating to the import, transportation, storage and use of the products.

All events and circumstances that occur, irrespective of whether these are within the control of Flamaway (including natural disasters, war, industrial disputes, shortages of raw materials and energy, disruption to transportation or business, damage due to fire or explosions, government intervention etc.), resulting in the availability of the products being restricted to Flamaway’s suppliers/sources, due to which Flamaway is unable to meet their contractual obligations, relieves Flamaway of their contractual obligations for the duration of the “disruption” and in proportion to the extent of the consequences. This equally applies to the events and circumstances that render the performance of the contractual obligations on the part of Flamaway commercially unviable (including sudden price increases, shortages of resources, issues at suppliers, geopolitical events, etc.). Should the abovementioned circumstances continue for an uninterrupted period of more than three months, Flamaway is entitled to unilaterally terminate the agreement without any costs being incurred.

Flamaway is entitled to claim the legal compensation with regard to any party for sums that Flamaway owes its suppliers and the sums the suppliers owe them. All settlements will take place in accordance with the underlying general terms and conditions. This cannot be deviated from in law, irrespective of whether or not reference has been made to these terms and conditions.

Messages and declarations relating to the other contracting party, that have to be made or submitted, come into to force at the time of sending to the contracting party. Should there be a fixed period with regard to this, the declaration should always be submitted within the stated time period, under penalty of being declared null and void.

All agreements entered in to by Flamaway are strictly confidential between Flamaway and the cocontractor, irrespective of the nature of the agreement (supply, fitting, installation, provision of advice, tolling, etc.). Any intellectual property rights that Flamaway attaches to its products and processes remain the property of Flamaway at all times. Any illegal use of the products or know-how of Flamaway will result in legal action and payment of damages corresponding to the extent of the (material and immaterial) damages suffered by Flamaway.

The General Terms and Conditions and any issues, dispute or claim arising out thereof or in relation thereto shall be governed by PRC law. The United Nations Convention of 11 April 1980 (CISG) is not applicable to govern these General Terms and Conditions. All claims, issues or disputes arising out of or in connection with the General Terms and Conditions and the agreement between Flamaway and the Purchaser shall be submitted to the court in the place where Flamaway is registered.

Should the Purchaser be informed of the General Terms and Conditions in a language other than that of the contract (contract language), this is only for the purpose of assisting the Purchaser in their understanding of the General Terms and Conditions and the agreement between the Purchaser and Flamaway. In the case of any dispute regarding the correct interpretation of the agreement, the definitive language is always the contract language.

The legal statute of limitations applies to any disputes arising from these General Terms and Conditions. Demands made by Purchaser due to a fault in the goods supplied by Flamaway expire one year after the goods have been supplied.

Should one condition of these General Terms and Conditions be declared null and void, the condition in question will be considered not to exist. Should one or more conditions be declared null and void, this does not result in the remaining conditions becoming null and void.