1. Definitions: In these conditions, unless the context requires otherwise:
1.1 ‘Buyer’ means the company who buys or agrees to buy the goods from the Seller.
1.2 ‘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.
1.3 ‘Delivery Date’ means the date specified by the Seller when the goods are to be delivered.
1.4 ‘Goods’ means the articles which the Buyer agrees to buy from the Seller.
1.5 ‘Price’ means the price for the Goods excluding carriage, packing, insurance and VAT.
1.6 ‘Seller’ means the company whose name and address appears in the box marked ‘Seller’ overleaf.
2. Conditions applicable
2.1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar documents. In no circumstances whatsoever shall the Seller accept the following Buyers clauses:
a) “time is of the essence” as the Seller cannot be held responsible of the performance of the nominated manufacturer/source, freight/delivery agents or customs procedures.
b) “consequential or indirect loss” Our total liability will be limited to the value of the order.
c) “liquidated damages” Our total liability will be limited to the value of the order.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
2.5 Irrespective of any provisions of the purchase order or elsewhere to the contrary in no circumstances whatsoever shall either party be liable to the other for any loss or deferment of profit, loss of revenue, loss of use, loss of production, or business interruption or for any consequential or indirect loss or damage, however the liability arises and whether in contract (including by way of indemnity), tort (including negligence) or otherwise at law.
3. Price and payment
3.1 The Price shall be the price set out in the Seller’s order confirmation.
3.2 Unless otherwise stated in the Purchase Order, goods are zero rated for VAT as they are supplied for sole use onboard the ‘qualifying ship’ for VAT purposes.
3.3 Payment of the Price (and VAT if not zero rated) shall be due within 30 days of the date of the invoice. Time for payment shall be of the essence.
3.4 Interest on overdue invoices shall accrue from the date when payment becomes due at a rate of 1.5% per month, or part thereof and shall accrue at such a rate after as well as before any judgement.
3.5 The Buyer 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 Buyer may have or allege to have or for any reason whatever.
4. The Goods
The quantity and description of the Goods shall be as set out in the Seller’s order confirmation.
5. Warranties and Liability
The Seller warrants that the Goods supplied will at the time of delivery correspond to the description given by the Seller. Machinery, spares, materials or services are supplied in direct accordance with your vessel requirements and specification and as such would be subject to the policy of the manufacturer chosen by your office in each case. However, our policy is to represent you in the strongest possible manner and press the manufacturer for the best possible solution should a situation arise. All other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.
6. Delivery of the Goods
6.1 Delivery of the Goods shall be made to the Buyer’s nominated agent on the Delivery Date. The Goods may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Buyer. The Buyer shall make all arrangements to take delivery of the Goods whenever they are tendered for delivery.
6.2 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6.3 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 3 months of the Delivery Date.
6.4 The Seller does not issue a POD to the Buyer on any deliveries. The Seller does not provide POD’s for any goods delivered. Should the buyer specifically request a POD in writing, this request must be made within 3 days of delivery. The Seller will not guarantee that a POD can be produced or issued.
6.5 The Seller will make every possible effort to obtain all reasonably available documentation for all hazardous goods from the original manufacturer of the machinery, spares, materials or services as supplied in direct accordance with your vessel requirements and specification at point of enquiry. The Seller states when ordering goods that IHM documentation is required for any item which contain hazardous materials or compounds, where this is not forthcoming from the manufacturer, the Seller will further press the manufacturer for the documentation, however, any additional costs that arise from the manufacturer producing this documentation will be chargeable. Our policy is to represent you in the strongest possible manner and press the manufacturer for the best possible solution. However, should we NOT be able to obtain this information from your chosen manufacturer it will be incumbent upon you to contact them directly
7. Acceptance of the Goods
7.1 The Buyer shall be deemed to have accepted the Goods 24 hours after delivery to the Buyer.
7.2 After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
7.3 In the event that the Buyer declines to accept the Goods in breach of this contract the Buyer shall pay to the Seller an amount equal to the price of the Goods less any consideration the seller can negotiate on behalf of the Buyer with the Buyers chosen manufacturer after deducting the costs and expenses of this process.
7.4 The Buyer must return to the Seller the Certificate of Shipment supplied with the Goods, Invoice and Despatch note. The Certificate of Shipment must have either the Ships Stamp or the Ships Masters signature for VAT purposes, confirming the Goods have been received onboard the ‘qualifying ship’ specified in the documentation.
8. Title and risk
8.1 The Goods shall be at the Buyer’s risk as from delivery.
8.2 In spite of delivery having been made, property in the Goods shall not pass from the Seller until:
8.2.1 the Buyer shall have paid the Price (plus VAT if not zero rated) in full; and
8.2.2 no other sums whatever shall be due from the Buyer to the Seller.
9. Remedies of Buyer
9.1 Machinery, spares, materials or services supplied by the Seller are supplied in direct accordance with your vessel requirements and specification and as such would be subject to the warranty policy of the manufacturer chosen by your office in each case. Our policy is to represent you in the strongest possible manner and press the manufacturer for the best possible solution should a situation arise. We only supply original parts and all items are inspected in our warehouse before despatch to your vessels.
9.2 Where the Buyer rejects any Goods then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such goods, or the failure by the Seller to supply Goods which conform to the contract of sale.
9.3 Where the Buyer accepts or has been deemed to have accepted any Goods then the Seller shall have no liability whatever to the Buyer in respect of those Goods.
9.4 The Seller shall not be liable to the Buyer for late delivery or short delivery of the Goods.
10. Seller’s liability
10.1 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
10.2 The Seller may cancel this contract at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
10.3 Irrespective of any provisions of the purchase order or elsewhere to the contrary in no circumstances whatsoever shall either party be liable to the other for any loss or deferment of profit, loss of revenue, loss of use, loss of production, or business interruption or for any consequential or indirect loss or damage, however the liability arises and whether in contract (including by way of indemnity), tort (including negligence) or otherwise at law.
11. Proper law of contract
This contract is subject to the law of England and Wales.
12. Third party rights
The provisions of the Contracts (Rights of Third Parties Act) 1999 shall not apply to this contract and a person who is not a party to this contract shall have no right under that Act to enforce any term of the contract.
13. Force majeure clause
Save for the Buyer’s obligation of payment under clause 3 neither party shall be liable for any default due to any act of God, war, civil disturbance, malicious damage, strike, lockout, industrial action, fire, flood, drought, extreme weather conditions, compliance with any law or government order, rule, regulation, direction, or other circumstance beyond the reasonable control of either party (‘Force Majeure Event’).