- Unless otherwise specified, the below terms shall mean:
- Asquan: Asquan Limited, or any of its subsidiary, as stated on the Quotation (the “Company”), whose registered place of business is located at the bottom of this Quotation.
- Buyer: the person, firm or company who purchases the Goods or Services from Asquan. When the Buyer is more than one person, firm, or company, each shall be jointly and severally liable to Asquan under a Contract.
2. APPLICATION OF TERMS
- The present Terms and Conditions (the “T&C”) apply to all sales made by Asquan to the Buyer and any variation to these conditions and any representations about the Goods or Services shall have no effect unless expressly agreed in writing and signed by a Director of Asquan. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Asquan which is not set out in the Contract.
- The Buyer may request a quotation and other information as needed from Asquan, and place an order either by signing the quotation, or by issuing a Purchase Order. A contractual relationship (the “Contract”) will be established and shall be bound to the present T&C, irrespective of the method of order placement by the Buyer.
- Each order or acceptance of a quotation for Goods or Services by the Buyer from Asquan shall be deemed to be an offer by the Buyer to buy Goods and/or to acquire Services subject to these conditions (an “Order”).
- The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
- Terms and conditions referred to in a customer’s order will not bind the Asquan in any way whatsoever unless they are duly signed by a Company Director of Asquan.
- By signing the quotation or issuing a purchase order, the Buyer agrees with the full set of T&C as set out on the back of the quotation and the invoice. The T&C as set out at the back of the invoice is also available at asquangroup.com.
- Where the reverse of this document consists of a quotation the quotation remains open for acceptance for a period of thirty (30) days or such other period as agreed in writing after which it will be subject to confirmation by the Company and if confirmed will remain subject to the remainder of these terms and conditions.
- Notwithstanding the condition 3.1, Asquan may refuse orders and has no obligation to supply Products or Services unless Asquan issues an order acknowledgement or upon the shipment of Products or commencement of Services.
- The terms and conditions contained herein as amended on the reverse supersede and cancel any/all previous terms and conditions given either verbally or in writing in respect of the sale of the goods or provision of services and charges specified in this contract.
- Asquan shall be responsible for the Goods being manufactured in accordance with the specifications supplied by the Buyer. Asquan shall not be liable for any defects resulting from the design and specifications of the Goods which have been supplied by the Buyer.
- No agent, employee or representative of Asquan (other than a Company Director) has authority to vary these terms and conditions nor to make any representation as to the effect of these terms and conditions nor as to the subject matter of any contract generally.
- If specified in purchase orders or otherwise in writing, orders may be subject to the approval by the customer of pre-production samples (“PPS”). Approved PPS and their specifications shall represent the benchmark of production.
- All sample plans, defect listings, specific package test procedures and documentation requirements should be provided and agreed upon in advance of the order. If not, Asquan package test procedures will be held as valid. This offer is based on our standard AQL system Mil std 105E with the following standards (minor 4.0, major 1.5, critical 0.65) unless otherwise agreed upon in writing.
4. CHANGES AND CANCELLATIONS
- The Buyer may not cancel or modify the order or the specifications without Asquan’s written consent, which shall not be withheld unreasonably. Even in such case, Asquan will be entitled to the full contractual price, less any expenses saved because of the modification or cancellation and the Buyer shall also be responsible for any costs for which Asquan becomes liable.
- For each cancellation of an order Asquan reserves the right to claim the performance of the Contract.
- Asquan may at any time suggest changes in design or construction of the Goods as may be deemed a necessary improvement by Asquan, or if materials become unobtainable because of governmental regulations or become unavailable at a reasonable price from suppliers.
- Unless otherwise stated in the Quotation or agreed in writing by Asquan, delivery of the Goods shall take place EXW at Asquan’s place of production (Incoterm 2020).
- Unless otherwise agreed upon in writing, if items ordered by the Buyer are not shipped within 14 days after notification to the Buyer that they are ready for shipping, for any reason, including but not limited to the Buyer’s failure to give shipping instructions or to perform full payment, Asquan may store such items at the Buyer’s risk and expense at Asquan’s own premises or in a warehouse or place of choice as determined by Asquan sole will, and the Buyer shall pay all handling, transportation and storage costs, plus applicable interests.
- Any dates specified by Asquan for delivery of the Goods or supply of the Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
- Subject to the other provisions of these conditions Asquan shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods or supply of the Services, nor shall any reasonable and justifiable delay entitle the Buyer to terminate or rescind the Contract.
- In respect of all Goods produced, Asquan may deliver a quantity of Goods of +/- 5% of the quantity ordered by the Buyer, in which case the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods at the pro rata Contract rate.
- No Asquan entity shall be responsible for conducting compatibility and stability tests or for actual compatibility and stability between the products ordered and any formula or material they will be filled with, or suitability for any end purpose of the Buyer.
- Unless otherwise agreed by a Director of Asquan in writing, the price for the Goods or Services shall be the price specified in Asquan quotation unless the price is amended in accordance with Condition 6.3. Unless otherwise stated on the reverse of this document, prices are expressed in United States Dollars.
- The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to lab testing, packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods, unless agreed otherwise.
- Asquan is entitled to increase the price at any time in the following circumstances:
- If there is an increase in any of Asquan’s costs associated with providing the Goods or performing the Services, including any fluctuation in currency exchange rates or raw materials of more than 5% connected to provision of the Goods/Services, or if other prices connected to the provision of the Goods change for reasons beyond Asquan’s control;
- If the Goods and/or Services required by the Buyer are different from the Goods and/or Services initially requested by the Buyer; or
- When full technical specifications are agreed upon and signed; or
- Where the Buyer’s Order was insufficiently clear to Asquan; and in each case the increase in price will be limited to the aggregate of the increase suffered by Asquan.
- Unless otherwise agreed in Asquan quotation or amended by a Director of Asquan in writing and subject to condition 7.4., payment of 50% the price for the Goods is due immediately upon Asquan accepting the Buyer’s order. Asquan will not start production of the Goods until the payment of such deposit has been received.
- Unless otherwise stated in the reverse of this document, the Buyer shall pay the remaining balance of 50% of the price either prior to taking delivery of the Goods or prior to shipment or within 14 days of Asquan providing its invoice, whichever is the earlier
- Time for payment shall be of the essence.
- No payment shall be deemed to have been received until Asquan has received cleared funds.
- For avoidance of doubt, any wire transfer fee, bank processing fee, or other fee and applicable tax pertaining to the rendering of payment shall be borne by the Client.
- The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Asquan to the Buyer.
- All payments payable to Asquan under the Contract shall become due immediately on its termination despite any other provision.
- Failure of the Buyer to pay Asquan any sum due pursuant to the Contract shall result in:
- All amounts payable by operation of law and without notice of default being required yielding an annual interest equal to 5% and moreover being increased with administrative charges determined at 10% of the total invoice amount payable. Costs arising from unpaid bills of exchange or cheques and other collection costs are not included in such fixed damages and are charged separately.
- Asquan having the right, without notice of default being required, to consider the existing agreements wholly or partly as terminated at the expense of the Buyer or to suspend wholly or partly the performance thereof.
- The obligations to pay on the side of the buyer are not suspended by the submission of an even evidently founded complaint about the already delivered goods.
8. INTELLECTUAL PROPERTY RIGHTS
- Only the Buyer shall be responsible for any patent, trademark, and other intellectual proprietary rights (“IPRs”) related to customer designed products bought from Asquan.
- Asquan will not be held liable for any IPR infringements for Goods developed based on the Buyer’s design specification. The Buyer hereby agrees to indemnify Asquan against any IPR infringement claim suffered by Asquan pertaining to the development or manufacture of such Goods.
9. GOVERNING LAW AND JURISDICTION
- This Contract shall be governed by and construed in accordance with laws of the jurisdiction where the Asquan legal entity issuing this Quotation to the Buyer is registered.
- In the event that any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims) cannot be resolved in an amicable way, the parties submit to the exclusive jurisdiction of the courts of Asquan legal entity referenced in these T&C, the issue of bills of exchange does not affect the competence. The language of the proceedings shall be English.
- The Contract shall be bound to the Mutual Non-Disclosure Agreement (“MNDA”) signed between Asquan and the Buyer. In the event no such MNDA has been signed between Asquan and the Buyer, acceptance of the quotation on the reverse of this document shall bind the Buyer and Asquan to Asquan’s MNDA.
- Asquan reserves the right to defer the date of delivery or to cancel the Contract or to reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Asquan including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
- Asquan shall not be liable for any damages of any kind for delayed or non-performance if such delayed or non-performance is due directly or indirectly to omissions or failure to act on the part of the Buyer or its agents or employees, including failure of the Buyer to settle the proforma invoices or invoices raised by Asquan.
- Any waiver by Asquan of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
- Each right or remedy of Asquan under the Contract is without prejudice to any other right or remedy of Asquan whether under the Contract or not.
- If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
- Failure or delay by Asquan in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.