Sea-Land Chemical Europe Ltd.
Definitions
In these conditions (unless the context otherwise requires):
Buyer means the Buyer named in the Contract
Company means Sea-Land Chemical Europe Ltd and also (where the context so permits) its assigns and any sub-contractor for the said company
Company's Premises means the premises mentioned in the Company's quotation or other contractual document in respect of the Goods or if not so mentioned means the Company's premises at ..........................................................................................
Contract means the contract between the Buyer and the Company for the sale and purchase of the Goods recorded in the Buyer’s order and the Company’s acceptance and incorporating these conditions
Goods means the goods (or any instalment or part of them) to be supplied pursuant to the Contract
Words in the singular shall include the plural and vice versa, references to any gender shall include the others and references to legal persons shall include natural persons and vice versa.
The headings in these conditions are intended for reference only and shall not affect their construction.
General
These conditions shall apply to the Contract to the exclusion of any other terms and conditions contained or referred to in any order, letter, form of contract or other communication sent by the Buyer to the Company and the provisions of these conditions shall prevail unless expressly varied in writing and signed by a director on the Company's behalf.
If the Buyer's official order form contains special printed conditions, such conditions are binding only insofar as they are not at variance with the terms and conditions herein contained.
Any concession made or latitude allowed by the Company to the Buyer shall not affect the strict rights of the Company under the Contract.
If in any particular case any of these conditions shall be or be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect.
Orders
3.1 Notwithstanding that the Company may have given a detailed quotation no order shall be binding on the Company unless and until it has been accepted in writing by the Company.
3.2 Orders are accepted and terms for delivery given conditional on the Company being able to secure the necessary labour and material. Responsibility for delays arising through causes beyond the Company's control shall not be construed as a Breach of this Contract.
Prices
Unless otherwise agreed by the Company in writing:
the price payable for Goods shall be the [list price of][price quoted by] the Company current at the date of acceptance of order
in the case of an order for delivery by instalments the price payable for each instalment shall be the list price of the Company current at the date of acceptance of such instalment;
the Company's prices are subject to adjustment to take account of any variation in the Company's costs including (but not limited to) variations in wages, the cost of materials, exchange rate fluctuations, alteration of duties and other costs since the date of the Company's quotation or (if no quotation is issued) the Buyer's order. The Company accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted but before the order is accepted.
All prices are exclusive of value added tax and this will be charged by the Company and will be payable by the Buyer at the appropriate rate.
Additional costs
The Buyer shall indemnify the Company in respect of any loss, cost or expense incurred by the Company as a result, directly or indirectly, of the Buyer's instructions or lack of instructions or through any failure or delay whatsoever in taking delivery or through any other act, neglect or default on the part of the Buyer, its servants, agents or employees.
Intellectual property
The Buyer shall indemnify the Company against all costs, claims, losses, expenses and damages incurred by the Company or for which it may be liable due to or arising directly or indirectly out of any infringement or alleged infringement of patents, trade marks, copyright, design right or other intellectual property right occasioned by the importation, manufacture or sale of the Goods if made to the specification or special requirements of the Buyer.
Terms of payment
The Buyer shall pay for the Goods in cash not later than the end of the month next following the month of the date of the invoice unless otherwise agreed in writing save that payment shall become due in any event forthwith upon the occurrence of any of the events referred to in condition 16 hereof.
If the Goods are delivered in instalments the Company shall be entitled to invoice each instalment as and when delivery thereof has been made and payment shall be due in respect of each instalment whereof delivery has been made notwithstanding non-delivery of other instalments or other default on the Company's part.
If upon the terms of the Contract the price shall be payable by instalments or if the Buyer has agreed to take specified quantities of Goods at specified times a default by the Buyer in the payment of any due instalment or the failure to give delivery instructions in respect of any quantity of Goods outstanding shall cause the whole of the balance of the price to become due forthwith.
The price of the Goods shall be due in full to the Company in accordance with the terms of the Contract and the Buyer shall not be entitled to exercise any set-off, lien or any other similar right or claim.
The time of payment shall be of the essence of the Contract.
Without prejudice to any other rights it may have the Company is entitled (both before and after any judgment) to charge interest at a rate equal to the higher of the interest rate payable on court judgements or 2% above the base rate from time to time of [Royal Bank of Scotland plc] on overdue payments of the price of the Goods or the price of any instalments thereof.
Delivery
Deliveries are made ex-the Company’s Premises unless otherwise agreed in writing.
All times dates or periods given for delivery of the Goods are given in good faith but without any responsibility on the Company's part.
Time of delivery shall not be of the essence of the Contract.
Any period for delivery shall be calculated from the time of the Company's acceptance of the Buyer's order or from the Company's receipt of all information necessary to enable the Company to manufacture or procure the manufacture of the Goods (whichever shall be the later).
Where the Goods are handed to a carrier for carriage to the Buyer or to United Kingdom port for export any such carrier shall be deemed to be an agent of the Buyer.
The Buyer agrees that section 32(3) of the Sale of Goods Act 1979 shall not apply to Goods sent by the Company.
No liability (whether in contract or for negligence or otherwise howsoever) for loss of or damage to the Goods occurring prior to delivery or for any claim that any item delivered pursuant to the Contract is defective or is otherwise not in accordance with the Contract (being a defect or loss, damage or non-compliance which would be obvious upon a reasonable inspection of the Goods) or for non-delivery will attach to the Company unless claims to that effect are notified in writing by the Buyer to the Company (and in the case of claims for loss, damage or non-delivery with a copy to the carrier if the Company's own vehicles have not been used to deliver the Goods):
within three days of delivery for loss, damage, defect or non-compliance with the Contract (and details of the claim similarly notified within seven days) or within ten days of the date of the invoice for non-delivery
and any obvious damage to the Goods should be noted on the carrier's delivery note at the time of delivery.
In relation to bulk deliveries, any discrepancies in weight delivered under 1% will not be liable to a claim.
In the event of a valid claim for defect, loss, damage, or non-compliance with the Contract or non-delivery the Company undertakes at its option either to reprocess or replace the items concerned at its expense but shall not be under any further or other liability in connection with such non-delivery, loss, damage or non-compliance.
If the Buyer shall fail to give notice in accordance with condition 8.7 above the items delivered shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly and all claims in respect of non-delivery, loss, damage, defect or non-compliance shall (save as set out in condition 13 below) thereafter be wholly barred.
If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Company may at its sole discretion without prejudice to its other rights and for such period as the Company may determine store the Goods at the Buyer's risk and take all reasonable steps to safeguard and insure them at the Buyer's cost, provided that the Buyer shall be immediately informed thereof.
The Company shall have the right to make delivery by instalments of such quantities and at such intervals as it may decide, and any express provision as to instalments in the Contract shall be in addition to and not in derogation of this right.
Returns
Goods supplied in accordance with the Contract cannot be returned without the Company's prior written authorisation. Duly authorised returns shall be sent to the Company's Premises at the Buyer's expense. Containers shall not be returned unless stated as returnable.
Carriage
Unless otherwise agreed by the Company in writing the Goods will be delivered ex the Company's Premises and the price of the Goods is exclusive of packing, carriage, and insurance of the Goods while in transit to the Buyer's premises].
Where the Buyer requests delivery in a manner other than that selected by the Company in condition 10.1 above, any difference in price shall be charged to the Buyer's account.
Passing of title and risk
From the time of delivery the Goods shall be at the Buyer's risk who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the Company's property until all payments to be made by the Buyer under the Contract and any other contract between the Company and the Buyer and on any other account whatsoever have been made in full and unconditionally. Whilst the Company's ownership continues the Buyer shall keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession as bailee for the Company.
The Buyer may only re-sell the Goods to the Buyer's customers in the ordinary course of the Buyer's business as a fiduciary and trustee for the Company. In the event of any resale by the Buyer of the Goods the Company's beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefor shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the Buyer and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Company's moneys.
Without prejudice to the equitable rules as to tracing, in the event of failure to pay the price in accordance with the Contract the Company shall have power to re-sell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Buyer to remove the Goods.
Pending payment of the full purchase price of the Goods the Buyer shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the Buyer in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Company's interest.
The Company is hereby licensed to enter upon any premises in the ownership, possession or control of the Buyer at any time to recover the Goods.
Conditions and warranties
The Contract shall not constitute a sale by description or sample.
Any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise howsoever) as to the quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Company) or as to the correspondence of the Goods with any description or sample are hereby expressly negatived.
If and to the extent that section 6 and/or section 7(3)(a) of the Unfair Contract Terms Act 1977 applies to the Contract, no provision of these terms and conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Company for breach of the applicable warranties as to title and quiet possession implied by statute into the terms and conditions of the Contract.
Defective Goods
In substitution for all rights which the Buyer would or might have but for these conditions the Company undertakes in the case of Goods manufactured by the Company that if within three months of delivery of any item of the Goods a defect in materials or workmanship appears therein being a defect which would not be obvious on reasonable inspection thereof (whether such an inspection was carried out or not) it will at its own discretion either credit to the Buyer the full price paid by the Buyer to the Company for such item or repair it or supply a replacement thereof free of charge at the place of delivery specified by the Buyer for the original Goods provided that in any case the original Goods have been accepted and paid for.
In the case of Goods not manufactured by the Company, the Company will pass on to the Buyer to the extent that it is able any benefits obtainable under any warranty given by the Company's supplier provided that the Goods have been accepted and paid for.
In order to exercise its rights under this condition the Buyer shall inform the Company within seven days of the date when such defect appeared or ought reasonably to have been discoverable and shall at the Company's written request return the defective Goods carriage paid to the Company's Premises.
Nothing herein shall impose any liability upon the Company in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Buyer, its servants or agents including in particular (but without prejudice to the generality of the foregoing) any failure by the Buyer to comply with any recommendations of the Company as to storage and handling of the Goods.
Where the Goods are for delivery by instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.
Nothing herein shall have the effect of excluding or restricting the liability of the Company for death or personal injury resulting from its negligence in so far as the same is prohibited by United Kingdom statute.
Buyer's specification
The Company shall not be liable for imperfect work caused by any inaccuracies in any bill of quantities or specification supplied by the Buyer.
Consequential loss
The Company shall not be liable for any costs, claims, damages or expenses arising out of any tortious act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.
Default or insolvency of Buyer
If the Buyer shall be in breach of any of its obligations under the Contract or if any distress or execution shall be levied on the Buyer's property or assets or if the Buyer shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Buyer is a company) if any resolution or petition to wind up such company shall be passed or presented or if a receiver, administrative receiver or administrator of the whole or any part of such company's undertaking property or assets shall be appointed the Company in its discretion and without prejudice to any other right or claim may by notice in writing determine wholly or in part any and every contract between the Company and the Buyer or may (without prejudice to the Company's right subsequently to determine the Contract for the same cause should it so decide) by notice in writing suspend delivery or any further deliveries (as the case may be) of Goods until any default by the Buyer be remedied.
Limitation of liability
Save in the case of death or personal injury the aggregate liability of the Company (whether in contract or for negligence or breach of statutory duty or otherwise howsoever) to the Buyer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the price of the Goods.
Representations
No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the Company's agents or employees shall be construed to enlarge, vary or override in any way any of these conditions.
Force majeure
The Company shall be entitled to delay or cancel delivery or to reduce the amount of Goods delivered if and to the extent that it is prevented from or hindered in or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its control including (but not limited to) strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal sources of supply.
Cancellation
Save as provided in conditions 16 and 19 hereof contracts may not be cancelled except by agreement in writing of both parties and upon the payment to the Company of such amount as may be necessary to indemnify the Company against all loss resulting from the said cancellation. Goods made to special order cannot be cancelled.
Sub-contracting
The Company may assign the Contract with the Buyer or sub-contract the whole or any part thereof to any person, firm or company.
Proper law
The Contract shall in all respects be governed by and construed in accordance with English law and shall be deemed to have been made in England and the Buyer and the Company agree to submit to the exclusive jurisdiction of the English courts and it is agreed that the High Court in Manchester is a convenient forum for the hearing of any dispute.
1 Export terms
1. In these conditions Incoterms means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, a term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these conditions, but if there is any conflict between the provisions of Incoterms and these conditions, then the latter shall prevail.
2. Where the Goods are supplied for export from the United Kingdom, the provisions of this condition shall (subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstanding any other provision of these conditions.
3. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination, and into any country through which the Goods are transported, and for the payment of any duties on or in respect of the importation or transportation of the Goods.
4. The Buyer agrees to adhere to the United State of America trade laws, including export, re-export, economic sanctions, anti-terrorism and anti-boycott laws and regulations. All transactions are subject to export controls of the they originate in. All transactions are subject to U.S. re-export controls, regardless of the location of the order. Diversion contrary to U.S. Law is prohibited. No products will be shipped or directed to U.S. embargoed countries or to any party on a denial list
5. The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Company's Premises before shipment if so required. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
6. Payment of all amounts due from the Buyer to the Company shall be made by irrevocable letter of credit opened by the Buyer in favour of the Company and confirmed by a Major UK bank in the England acceptable to the Company or, if the Company has agreed in writing on or before the formation of the Contract to waive this requirement, by acceptance by the Buyer and delivery to the Company of a bill of exchange drawn on the Buyer payable 60 days after sight to the order of the Company at such branch of such Major UK Bank in England as may be specified in the bill of exchange or such other mechanism for payment as shall be agreed expressly between the parties.