TERMS & CONDITIONS OF SALE
(Edition August 2018)
1. “Person” means any legal or private person or entity.
2. “Product(s)” means the product(s) and service(s) subject of a particular contract, sale or delivery.
3. “Buyer” means the person buying and/or ordering product(s) from the Seller and where such person acts as agent of or otherwise for a third party (principal), whether disclosed or undisclosed, both such person and principal are jointly and separately liable. When products are ordered for delivery to a vessel, “Buyer” also refers to the vessel, her master, her owners, disponent owners, managers, operation, and the agents and servants thereof.
4. “Seller” means the person issuing the invoice in respect of the product(s).
5. “Contract” means and include these Standard Terms, the Seller’s Standard Conditions and any writings, letters, e-mails, teletype messages, facsimile transmissions, telephone conversations, cables and verbal communications between Seller and Buyer or the representatives thereof whereby an agreement for the sale of products evidenced.
6. “Receipt” means a numbered and legally signed or stamped document, stating that the holder has the right to receive the goods mentioned therein.
B. Trade terms shall be construed in accordance with “Incoterms 2000”.
C. Seller maintains the right to change, modify or alter these terms and conditions at any time without giving any prior notice. Unless changed, modified or altered by the Seller, these Terms & Conditions of Sale shall also apply to all future business.
2. QUOTATIONS, ORDERS AND SALES
A. All quotations and sales are subject to these conditions except to the extent that variation from specific provisions hereof has been agreed to by Seller in writing: Conflicting purchasing conditions or other reservations made by Buyer shall be deemed to have been rejected by Seller unless expressly accepted in writing.
B. Quotations are subject to changes in price, time of delivery, product availability and ability to deliver. Any quotations are indicative only, and are subject to change without notice. A quotation even if deemed binding is void if not accepted by Buyer within 30 days or within the period stipulated by Seller. Orders from the Buyer shall be considered offers and will bind the Seller only if accepted by Seller’s written confirmation, or by delivery of the products ordered.
C. All sales are final and no refund or credit will be offered for returned product(s) unless Seller has agreed in writing prior to such return and returns arrive promptly and in good condition in the Seller’s opinion. Duly authorized returns shall be delivered to the Seller at the Buyer’s expense.
D. Order cancellation fees of 15% will be applicable, from the next day of your order date, as per the material value.
E. In case of cancellation of the entire or part of the order in any day after your written confirmation, then the relevant Customs Clearance Approval, Port/Terminal entry, Hotshot delivery, Integral Port Administration, delivery outside working days/hours, Transportation costs and fees of your ordered paints and any arised expenses concerning the execution of delivery from our manufacturing plant/facilities to the indicated port or shipyard of delivery and their returning back, will be charged solely on the vessel’s account.
F. Any concession made or latitude allowed by the Seller to the Customer shall not affect the strict rights of the Seller under the Contract.
Unless otherwise stated, quoted prices are in United States Dollars (USD) and exclude VAT and all other taxes, duties or fees. It is the responsibility of the Buyer to ensure that any vessel receiving products as “ships stores in transit” is entitled to receive such products exclusive of value added taxes and any other taxes, in accordance with legislation in force. Any Value Added Tax, duties, fees, and all other taxes are the responsibility of the buyer. Quoted prices are normally Free Alongside Ship (FAS), Free on Board (FOB), Cost & Freight (C&F) or Cost Insurance Freight (CIF) at a specified point. If no specific trade term is quoted, then prices cover delivery “ex works” or “ex warehouse“. Where additional delivery costs of whatever nature are incurred to effect delivery or to meet Buyer’s requirements, such additional costs will be charged to Buyer. For quoted prices in respect dry docking works and repairs, FAS means Free Alongside Ship at Shipyard, with shipyard entrance fee and/or any additional delivery costs deriving from shipyard or agent on the expense of the Buyer. Seller may increase prices for undelivered products or services in accordance with increases in Seller’s costs any time after the date of acceptance of order and before dispatching the products/performing services. Seller may at its option at any time before delivery give written notice to Buyer of an increase in the contract price equal to the cost increase and an increase in profit in proportion thereto, and such increased price shall be substituted for the contract price. All increases in delivery costs after the day of acceptance of order and prior to delivery are payable to Seller by Buyer.
A. Unless otherwise stated or specified by Seller in writing, payment shall be effected within 30 days from the date of invoice or from the date of delivery, whichever is earlier, with respect to the quoted and accepted currency, which unless otherwise stated is in United States Dollars (USD).
B. Seller may require security for payment before dispatching products or performing services.
C. Time of payment is of the essence of any contractual agreement between Seller and Buyer. If for any reason Buyer fails to pay in full by the due date:
Seller shall be entitled to charge the Buyer without any prior notification, of an initial flat non-negotiable fee of 5% of the gross invoice amount, and annualized interest of= WSJ PRIME +1.75 % accrued on a daily basis, for each late date thereafter.
WSJ PRIME= FED FUNDS RATE + 3%
All costs and expenses incurred by Seller in collecting overdue accounts shall be for the account of the Buyer.
E. Payments are due in the currency expressed in the invoice for the respective sale. If Seller agrees to accept payment in another currency, the rate of conversion will be that at which first class banks in London exchange the currency on the date on which payment is due.
F. If Buyer:
a) fails to take or accept delivery
b) becomes overdue with payment
c) exceeds the credit limit of his account with Seller
d) suspends payments
e) breaches any of his obligations to the Seller
f) does not comply with seller’s requirements of any advance payment
then Seller may without liability or prejudice to its other rights dispose of the product(s) in transit and defer or postpone or cancel further deliveries under contract with the Buyer or collect back the delivered goods or require advance payment or security for payment and no course of dealings, forbearance or prior payment shall affect this right of seller.
G. Buyer may not deduct from payments any amount for claims of any kind whatsoever which the Buyer has or might have against the Seller, and may not condition payment on such grounds. Any deduction from payments due in breach of this clause shall be deemed a default by the Buyer.
H. Responsibility for obtaining any licenses or exchange control consents necessary for the importation and use of, as well as payment for the product(s) ordered lies with the Buyer. Buyer shall not at any means be discharged from its contractual obligations towards Seller by any total or partial failure to obtain such license or consent for whatever reason.
I. In case Buyer does not pay invoice/s within the agreed payment terms, any discount granted by Seller will be null and void. The ownership of the goods, including all relevant or associated product approvals and certifications, belongs to the Seller until the full and final settlement of the invoices. The Seller reserves all the rights to collect back the delivered goods and/or to retract without liability any and all approvals or certifications provided to the Buyer.
J. Seller reserves the right to revise the payment terms to the Buyer before the delivery. Subsequently, payment terms shall be in effect as of the date of invoice or as of the date of delivery, whichever is earlier. Seller retains the right to amend all formal documentation to reflect said payment term period.
A. Time of delivery is not legally binding to the Seller, it’s only a forecast based on various parameters such as geographical conditions etc. Therefore, delivery dates specified in the contract are only an approximation, given by Seller in good faith, and not a promissory undertaking.
B. Delivery times, periods or rates when unspecified will refer to readiness of products. If place and time of delivery are not specified in writing, delivery takes place ex-works. i.e. where and when Seller delivers the product(s) to Buyer of first carrier.
C. Buyer shall supply all information and assistance required for Seller to execute Buyer’s Order:
If the products are sold to the vessel’s agent, a bill of lading, a mate’s receipt or other document indicating delivery to the vessel or tender the vessel is conclusive evidence of delivery, irrespective of whether the person giving the receipt or the documentation has authority from Buyer to do so.
If Seller or their carriers are for any reason unable to deliver the product(s) to the vessel upon arrival at the port of delivery, a warehouse receipt for the products shall be treated as sufficient delivery.
Whenever the products are sold CFR or CIF, a “received for shipment” bill of lading or waybill is conclusive evidence of delivery.
D. Where delivery of the Goods is to be made by the Seller, the Seller reserves the right to deliver up to 5% more or 5% less than the quantity ordered without any adjustment to the price per litre, US gallon, or kilo and the quantity delivered to shall be deemed to be the quantity ordered.
E. Where the goods are to be delivered in installments, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
F. Where the products are sold at Seller’s risk, Buyer shall upon receipt thereof, thoroughly inspect them and shall at once notify Seller in writing in case of any none delivery, loss or damage, within 72 hours of specified delivery date. If by any reason of failure of Buyer to inspect the products and/or notify the Seller resulting in Seller being unable to make a valid claim against the carrier, Seller shall not be liable to Buyer in respect of any loss of or damage or non-delivery of the products.
G. In case of your vessel’s call cancellation in any day after your written confirmation, then the relevant Customs Clearance Approval, Port/Terminal entry, Hotshot delivery, Integral Port Administration, delivery outside working hours, Transportation costs of your ordered paints as stated in our quotations and any arised expenses concerning the execution of delivery from our manufacturing plant/facilities to the port of delivery and their returning back will be charged solely on the vessel’s account.
6. WORKING HOURS
Presenting delivery goods shall be effected during the official working hours for the staff of the warehousing company/trucking company/carrier/customs or any other person involved in the delivery process. If Buyer desires work to be done outside the official working hours, it is in the above persons’ discretion to comply or not. Extra costs incurred for working outside the official working hours shall be borne by Buyer.
Seller warrants that all products comply with Seller’s published product manuals and specifications in effect at time of manufacture (Seller’s Warranty). Seller makes no other warranties or representations and hereby disclaims any such warranties and representations and hereby disclaims any such warranties or representations, expressed or implied, by operation of law or otherwise, including, without limitation, any implied warranty of merchant ability or fitness for a particular purpose. Certification by Seller by separate writing as to compliance with specifications, blue prints, part numbers, quantity, test or otherwise will not create any warranty or further obligation by seller. Buyer shall notify Seller for any product that does not comply with Seller’s Warranty within a reasonable time after the delivery of products, but in any event not later than thirty (30) days following such delivery.
Failure of Buyer to notify Seller of such nonconformance shall constitute a waiver by Buyer of any claims with respect to such non-conforming products. If products are purchased for resale by the Buyer, including application to a third party’s property or incorporation into a separate and distinct product which is resold, Buyer shall not make any representations or warranties with respect to the Products inconsistent with these Terms and Conditions and shall include in the terms and conditions of such resale disclaimers of warranties and limitations of liabilities at least as restrictive contained in these Terms and Conditions. Seller’s Warranty does not apply to any products identified as obsolete and substandard, which are sold “as is, where is”. Seller’s Warranty does not apply to any products manufactured by anyone other than the Seller. Seller does not make any warranty, expressed or implied with respect to products manufactured by anyone other than the Seller. All such products are sold “as is, where is”. To the extent Products manufactured by someone other than by the Seller are purchased and a warranty has been extended by that manufacturer with respect to the products, Seller does not make or extent such a warranty and Buyer’s sole resource is to the manufacturer of such Products. Buyer should contact the manufacturer for the specifics of such warranty, if any, and any other limitations on Buyer’s rights with respect to any such warranty.
Especially for Antifouling Astra Sea-Speed Tin-Free SPC Guarantee, please refer to Antifouling Astra Sea Speed SPC Guarantee.
8. FORCE MAJEURE
Seller shall not be liable for any failure to ship products or to otherwise comply with the contract related thereto (the “Contract”) as a result of any circumstances which are beyond Seller’s reasonable control and which prevent or restrict Seller from complying with such Contract without limiting the generality of the foregoing. Seller may without liability suspend or terminate (in whole or in a part) its obligations under the Contract if Seller’s ability to manufacture, supply, deliver or acquire materials for the production of the Products by Seller’s normal means is materially unpaired.
9. TERMINATION AND SUSPENSION
Seller may (without prejudice to its other rights or remedies) refuse to sell to Buyer without penalty or fee under any condition while investigating any claim relating to prior shipment of products or in the event of any of the following circumstances:
a. Buyer fails to take delivery of or to pay for the Products as required by Seller, or breaches any other term of Sale.
b. Buyer becomes bankrupt or insolvent or if a receiver takes possession of any material part of Buyer’s assets, or Buyer suffers any equivalent of the foregoing.
c. Reasonable grounds for insecurity arise with respect to the performance of its obligation to Seller, and Seller so notifies Buyer. If Buyer provides Seller with security for the product price, reasonably acceptable to Seller, within three (3) working days after a notice has been given, Seller shall withdraw the notice.
10. INTELLECTUAL PROPERTY
Buyer shall not use in any manner any trade names or trademarks applied to or used by Seller with respect to the products, unless otherwise permitted by Seller in writing. If the buyer discovers that the buyer or any unauthorized third parties have infringed the intellectual property rights referred to in this clause, the buyer has an obligation to inform the seller immediately.
11. ADVICE OR ASSISTANCE
Recommendations or advice by Seller for the use of Products are furnished gratuitously and are based upon information believed to be reliable at the time. Buyer’s use of or reliance upon the same shall be at Buyer’s risk; Seller’s sole liability with respect to the sale of Products to Buyer and use of these Products by Buyer is set forth in of these Terms and Conditions. Any agreement between Buyer and Seller concerning advice or assistance or technical support given to Buyer by Seller for a separate fee will be contained only in a separated written agreement. The characteristics or attributes of any Products are contained only within the current version of written information relating to each particular product. Any verbal advice rendered to the contrary shall not be binding on Seller.
12. HEALTH AND SAFETY AT WORK
Buyer shall ensure that all Products are safely and lawfully received, stored, maintained, used or applied by Buyer, and that Buyer obtains relevant information in Seller’s position relating thereto. Seller maintains and makes freely available to Buyer product Safety data information. If Buyer has not previously received such information, Buyer shall request it. Buyer shall insure that all appropriate safety information (whether supplied by Seller, Buyer or any other party) is distributed and drawn to the attention of customers and all other (including Buyer’s employees) who require it for the safe handling or use of Products.
13. APPLICABLE LAW, JURISDICTION AND ARBITRATION
All Sellers’ contracts with Buyer, including these Terms and Conditions, and any claims by or against the Seller shall be governed exclusively by the maritime laws of the United States, unless the seller at its sole option in enforcing its supply contract chooses a jurisdiction other than that of the Courts of the United States (Federal Courts) and another law, in such event, is compulsorily applicable. The UN Convention on contracts for the international sale of goods (Vienna, April 1980) is expressly excluded. The Uniform Law on the International Sale of Goods as well as the Uniform Law on the formation of contracts for the International Sale of Goods is expressly excluded. The Courts of United States (Federal Courts) shall have exclusive jurisdiction in all matters whatsoever, whether contractual or not, unless Seller at his sole option chooses another forum, (the venue will be at Seller’s sole option).
It is expressly agreed and understood that the Seller shall have and will be entitled to enforce a maritime lien against any vessel of the Buyer to which these goods are delivered, for the price of the goods / services delivered and the said lien shall be deemed to arise under the laws of the United States, irrespective of the place of supply of any of the products, goods, and services and in addition the Seller shall have a charge and a privilege over the supplied vessel and any other vessel under the same or associated ownership which the Seller shall be entitled at his sole option to enforce by provisional attachment or other legal remedy available under the laws of any other country where the Seller may choose to enforce his claims for the value of goods and services delivered. The Seller shall be entitled in any legal proceedings to recover, in addition to his damages, interest, costs, and legal fees. These conditions as reproduced in the Seller’s Internet Website shall be deemed to be incorporated by reference in every contract of sale as part of the Seller’s terms and conditions.
14. WRITTEN RECORDS
All agreements, tenders, instructions regarding the sale and purchase of the Products shall be recording in writing. Oral or telephone communications or agreements shall only be binding on the Seller, if immediately confirmed in writing, unless otherwise agreed. The purchaser gives the seller permission to enter all information concerning the sale and other information provided by the purchaser in a database and to use the information in the database.
If any of the Terms and Conditions or the application thereof to any person or circumstance shall to any extent be held invalid or unenforceable, the remainder of such Terms and Conditions or the application of such provision to person or circumstances other than to those to which it was held to be invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. Nothing in these Terms and Conditions shall obligate Seller to sell any products to Buyer on any terms whatsoever, including cash advance. These Terms and Conditions may be amended by Seller, at its option, which amendment shall become effective upon submission of a written copy of such amended Terms and Conditions to the Buyer.