Terms of service
1. Applicability
Any purchase of FELL Marine products by Buyer ("Order") shall be governed solely by these Terms and Conditions of Sale ("Conditions of Sale") and any other written provisions mutually agreed upon. FELL Marine does not accept, and hereby expressly objects to and rejects, any terms contained in any purchase order or other document issued by Buyer that are different from, conflict with, modify and/or add to these Conditions of Sale. No modification or addition to these Conditions of Sale shall be effective unless agreed to in writing and signed by an authorized representative of Buyer and FELL Marine. Any oral understandings are expressly excluded. FELL Marine shall not be deemed to have waived these Conditions of Sale if it fails to object to any additional or conflicting provisions appearing on, incorporated by reference in, or attached to Buyer’s purchase order form. FELL Marine’s catalogs and price lists do not constitute an offer. FELL Marine reserves the right to reject or refuse any Order submitted for its acceptance. Unless otherwise agreed in writing by an authorized representative of FELL Marine, no special marketing programs (eg. volume rebate, coop, etc.) are offered with these Conditions of Sale.
1.2 Entire Understanding
Except for (i) any payment terms agreements signed by FELL Marine per Section 5, and/or (ii) any addendum or separate agreement signed by an authorized representative of Buyer and FELL Marine that specifically amends or overrides these Conditions of Sale, these Conditions of Sale shall constitute the entire understanding and agreement between Buyer and FELL Marine.
2. Delivery
2.1 Date
Any delivery date stated in any document (including an Order) is approximate only and shall not constitute any guarantee of delivery on any particular date.
2.2 Terms
Delivery shall be F.O.B. FELL Marine’s docking point, Fort Lauderdale, FL (or FCA for export per INCOTERMS 2010) for all products purchased from FELL Marine Inc.
2.3 Freight
Transportation charges shall be pre-paid and Buyer shall reimburse FELL Marine upon receipt of an invoice for such charges.
2.4 Title; Risk of Loss
Title and risk of loss shall pass to Buyer upon delivery of the products by FELL Marine to the carrier at the FOB/FCA point, unless as otherwise agreed upon in writing by FELL Marine.
3. Inspection and Acceptance
The Buyer shall inspect and accept or reject products delivered pursuant to an Order immediately after Buyer takes custody of such products. In the event the products do not comply with any applicable FELL Marine specifications, the Buyer shall promptly notify FELL Marine of such noncompliance, along with the reason for such noncompliance, and give FELL Marine a reasonable opportunity to correct any such noncompliance. The Buyer shall be deemed to have accepted any products delivered hereunder and to have waived any such noncompliance in the event FELL Marine does not receive written notification of noncompliance within fifteen (15) days after the Buyer takes custody of the products delivered hereunder.
4. Product Changes
FELL Marine at all times reserves the right in its sole discretion, without consent of Buyer, to make changes, additions or improvements to the products ordered or to discontinue any products.
5. Price and Payment
Product shall be sold to Buyer at the prices quoted to Buyer upon acceptance of each Order. FELL Marine reserves the right to change the prices for products from time to time. Prices are stated in United States dollars and payment shall be made in United States currency. Unless other payment terms are previously agreed in writing by FELL Marine, Buyer shall make full payment in advance for all products ordered. In the event Buyer does not make timely payments, FELL Marine may, in addition to all other remedies provided at law, either: (1) declare Buyer’s performance in breach and terminate an Order for default; (2) repossess the goods for which payment has not been made; (3) withhold future shipments under an Order until delinquent payments are made; (4) deliver future shipments under an Order on a cash with order or cash in advance basis even after the delinquency is cured; (5) charge interest on the delinquency at a rate of 1½% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges, or inventory carrying charges; or (6) recover all costs of collection including reasonable attorney’s fees; and (7) at FELL Marine’s option, combine any of the above rights and remedies as provided by law.
6. Creditworthiness
FELL Marine reserves the right to perform a review of Buyer’s creditworthiness either before or after an Order is received. FELL Marine shall not be obligated to accept or honor an Order if Buyer’s creditworthiness is deemed unsatisfactory to FELL Marine, in FELL Marine’s sole discretion. FELL Marine reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security or payment in advance of the amount of credit involved.
7. Taxes
Buyer shall be responsible for, and shall pay, any taxes (sales, excise, use, etc.) and any export or import dues that may be applicable to the sale and/or delivery of the products. Accordingly, FELL Marine reserves the right to revise its price after the execution of an Order between the parties to include any and all taxes or duties that may become due hereunder and FELL Marine may invoice Buyer for said additional amount. This clause shall survive the acceptance and complete performance of an Order by the parties herein.
8. Offsets
Any credits, allowances or other amounts payable or creditable by FELL Marine to Buyer shall be subject to offset for any claims or other amounts owed by Buyer to FELL Marine.
9. Force Majeure
Neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation (other than an obligation to make payments for goods delivered in accordance with the Order) where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party. Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, strikes and other labor disputes, embargoes, export control laws, delays in transportation and inability to obtain labor, supplies or manufacturing facilities, including material shortages or delays in deliveries to FELL Marine by its suppliers. In the event that any force majeure event shall prevent FELL Marine from being able to supply products to all its customers, FELL Marine shall be entitled to allocate its available supply of products among its customers in such proportions as FELL Marine, in its sole discretion, shall deem appropriate.
10. Warranties
10.1 Limited Warranty
FELL Marine products purchased by Buyer shall be subject to the applicable warranty terms and exclusions in effect at the time of shipment, as displayed on our website at https://www.fellmarine.com/manuals/#warrantyanddisclaimer.
10.2 Exclusive Warranty
THE WARRANTIES AND REMEDIES CONTAINED HEREIN AND IN THE LIMITED WARRANTY REFERENCED IN SECTION 10.1 ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING ANY LIABILITY ARISING UNDER ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, BOTH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
10.3 Contact Information
To obtain warranty service and instructions, contact your local FELL Marine authorized dealer or call FELL Marine Customer Service at one of the numbers shown below:
FELL Marine Inc (US).
280 N.E. 2nd Ave
Delray Beach, Florida, 33444
United States
Phone: 855-683-3355
FELL Technology AS (Europe).
Gjellebekkstubben 10, 3420 Lierskogen, Norway
Phone: +47 32 82 82 80
11. Limitation of Liability
FELL Marine’s total liability on any claim for loss or damage arising out of, connected with, or resulting from an Order, or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any product or services rendered covered by or furnished under an Order shall in no case exceed the price allocable to the product that gives rise to the claim, except as provided in the paragraph entitled "Patent Infringement." IN NO EVENT SHALL FELL MARINE BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR SALES. This limitation of liability does not apply to gross negligence, intentional or reckless acts, or violations of statutorily imposed duties on the part of FELL Marine.
12. Confidentiality
During the parties’ purchase-sale relationship, Buyer may receive Confidential Information (as defined below) from FELL Marine. Buyer acknowledges that any such Confidential Information comprises valuable trade secrets and is proprietary to FELL Marine. Buyer shall hold the Confidential Information in strict confidence and shall not disclose the same to any other person, firm or corporation, nor use the Confidential information, except as required to perform its obligations under this Agreement. Buyer shall not copy or reverse engineer any Products. The foregoing obligation shall not apply to any information that becomes public through no fault of Buyer. As used herein the term "Confidential Information" means all know-how, designs, drawings, pricing information, specifications and other information, whether or not reduced to writing, relating to the design, manufacture, use, marketing and service of any products of FELL Marine as well as any other information relating to the business of FELL Marine that may be divulged to Buyer that is not generally known to the public.
13. Trademarks
All products sold to Buyer shall bear FELL Marine's trademarks. Buyer shall not remove, conceal or alter any such trademarks. Buyer acknowledges and agrees that these Conditions of Sale give Buyer no rights in FELL Marine's trademarks, except that FELL Marine grants Buyer a limited, non-exclusive license during the term of Buyer’s purchasing relationship with FELL Marine to reproduce FELL Marine's trademarks in advertisements and other promotional materials relating to the products in accordance with such standards for use of its trademarks as may be established from time to time by FELL Marine. Such license shall expire immediately upon the expiration or termination of Buyer’s purchasing relationship with FELL Marine. All goodwill arising from Buyer's use of FELL Marine's trademarks shall inure solely to the benefit of FELL Marine. All advertisements and other promotional materials using FELL Marine's trademarks prepared by Buyer shall include an appropriate notice indicating that such trademarks are the property of FELL Marine. Buyer shall not use FELL Marine's trademarks or name as part of its corporate or business name, provided that Buyer may identify itself as an authorized Buyer of FELL Marine.
14. Indemnification
In the event that Buyer is purchasing products from FELL Marine for resale, each party shall indemnify, defend and hold harmless the other party from and against all third-party claims, suits, actions, liabilities, damages, losses, demands, costs and expenses (including reasonable attorneys’ fees) arising out of any actual or alleged injury or death to any person or damage to any property, or any other damage or loss resulting in whole or in part from any alleged or actual defect in any products supplied by FELL Marine to Buyer or by Buyer to its customer (except for patent infringement claims, which are governed by the terms in Section 15); provided, however, that these indemnification obligations shall not apply to the extent any such third-party claim, suit, action, damage, loss, etc. was caused by or attributable to the acts of the other party or its agents, employees, and/or representatives.
15. Patent Infringement
15.1 Obligation to Defend
Upon prompt written notification by Buyer of any claim, threatened or commenced, of patent infringement, FELL Marine shall defend or settle any claim that a FELL Marine product infringes any United States patent at FELL Marine’s sole cost and expense, provided FELL Marine is offered full and exclusive control to conduct the defense or settlement thereof.
15.2 Exclusions
FELL Marine’s obligation to defend and settle shall not apply (1) to any products or parts specified by Buyer or manufactured to Buyer’s design; (2) to any products or parts altered or modified by Buyer; (3) to the use or manufacture of any products in conjunction with any other product, not manufactured by FELL Marine, or (4) where infringement would not have occurred from the normal use for which the products were designed. No responsibility is assumed for actual or alleged infringement of any foreign patent.
15.3 Remedies
FELL Marine’s liability for damages hereunder is limited to those computed solely on the value of any products sold to Buyer hereunder. IN NO EVENT SHALL FELL MARINE BE LIABLE FOR ANY CONSEQUENTIAL OR SPECIAL DAMAGES OR COSTS APPLICABLE THERETO RELATED TO A PATENT INFRINGEMENT CLAIM. In the event of any claim that a product furnished hereunder infringes any United States patent, FELL Marine may at its option and expense (a) procure for Buyer the right to continue using the product, (b) replace or modify the product so that it becomes non-infringing, or (c) grant Buyer a credit for such product, less a reasonable depreciation for use, damage, and obsolescence upon its return to FELL Marine. These remedies shall constitute the sole and exclusive remedies of the Buyer and are in lieu of any other warranty, express or implied, by FELL Marine with respect to intellectual property (patents, trade secrets, mask works, trademarks, copyrights, or the like).
15.4 Indemnity by Buyer
In the event any product to be furnished under an Order is made in accordance with drawings, samples or manufacturing specifications provided or designated by Buyer and is not the design of FELL Marine, Buyer agrees to defend, indemnify and hold FELL Marine harmless from and against any claims of infringement with respect to such product(s) subject to the same requirements as set forth above in FELL Marine’s obligation to Buyer. Further, Buyer agrees to pay all costs and expenses incurred by FELL Marine in its defense and the amount of any judgment against FELL Marine in any suit or proceeding against FELL Marine based upon a claim of infringement, resulting solely from the Buyer combining any product furnished hereunder with any item not manufactured or furnished by FELL Marine or from the sale or use of any such combination by Buyer.
16. Special Tooling and Data
Unless otherwise agreed in writing, all material, software, data processes, equipment, facilities and special tooling, including, without limitation, jigs, dies, fixtures, molds, patterns, special taps, special gages, special test equipment, other special equipment and manufacturing aids and replacements thereof, used in the manufacture of products covered by an Order shall be and remain the property of FELL Marine. FELL Marine retains all rights, title and interest in drawings, engineering instructions, specifications, and all other written data, if any, furnished with the products.
17. Export
Buyer shall be responsible for compliance with all export control laws and regulations of the U.S. Government (including the Export Administration Regulations and the International Traffic in Arms Regulations), and when required by such laws and regulations shall obtain export and re-export licenses required for goods, services and technical data delivered under an Order. FELL Marine shall not be liable to Buyer for any failure to provide goods, services or technical data as a result of any of the following U.S. Government actions: (1) refusal to grant export or re-export license; (2) cancellation of export or re-export license; or (3) any subsequent interpretation of U.S. export laws and regulations, after the date of an Order, that limits or has a material adverse effect on the cost of FELL Marine’s performance of an Order.
Buyer is and has been, in compliance with all laws administered by OFAC or any other governmental entity imposing economic sanctions and trade embargoes ("Economic Sanctions Laws") against designated countries ("Embargoed Countries"), entities and persons (collectively, "Embargoed Targets"). Buyer is not and has not been, an Embargoed Target or otherwise subject to any Economic Sanctions Law. The Buyer shall comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, the Buyer shall not (a) directly or indirectly export, re-export, transship or otherwise deliver the Products purchased hereunder or any portion of the Products to an Embargoed Target or a party owned 50% or more by an Embargoed Target or (b) broker, finance, cause or otherwise facilitate any transaction in violation of any Economic Sanctions Law. Buyer shall pay its financial obligations to FELL Marine with funds that are not blocked, frozen, or tainted by passing through a blocked or frozen financial institution.
18. Assignment
Neither party shall assign an Order or any portion thereof without the prior written consent of the other party, which consent shall not be unreasonably withheld. The non-assigning party shall not have any obligation to an assignee of the assigning party unless such consent is obtained.
19. Waiver
Failure by FELL Marine to assert all or any of its rights upon any breach of an Order shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the acceptance of any payment or service. Such waiver will arise only from an express written waiver signed by a duly authorized FELL Marine representative. No waiver of any right shall extend to or affect any other right FELL Marine may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
20. Severability
If any provision of these Conditions of Sale is determined to be illegal, invalid, or unenforceable, for any reason, then such provision shall be deemed stricken for purpose of the dispute in question, and all other provisions shall remain in full force and effect.
21. Disputes
Except as otherwise specifically agreed in writing by Buyer and FELL Marine, any controversy or claim arising out of or relating to an Order placed by a Buyer incorporated in the United States which is not resolved by the parties shall be adjudicated by any court of competent jurisdiction. For Orders placed by a Buyer incorporated outside the United States, any controversy or claim arising out of or relating to such Order shall be determined by arbitration in accordance with the Norwegian Arbitration Act of 14 may 2004 no. 25. The place of arbitration shall be Oslo, Norway and the language for all documentation and proceedings related to the arbitration shall be English.
22. Governing Law
The purchase-sale relationship between Buyer and FELL Marine shall be governed by and construed in accordance with the laws of the State of Florida, without reference to the principles of conflicts of laws.