TERMS & CONDITIONS OF SALE
All offers are made and orders for the goods accepted solely on the basis of the terms of this sales order irrespective of whether and when alternative terms are submitted by the Buyer.
Duferco UK Ltd. Terms & Conditions Of Sale
PAYMENT TERMS
Payment for the products shall be effected by the buyer in accordance with the agreed payment terms.
The buyer shall not be entitled by reason of any set-off, counterclaim, abatement or other similar deduction to withhold payment of any amount due to the seller, except to the extent that the buyer is compelled to do so under applicable law.
If the buyer fails to make any payment due under the contract on the due date and such default is continuing for more than 60 (sixty) days, then the seller shall be entitled to (i) suspend any delivery to the buyer hereunder and/or under any other contract between the buyer and the seller for the supply of goods; (ii) cancel the contract, as well as any other contracts executed with the buyer; (iii) appropriate any payment made by the buyer for the goods supplied under any other contract between the buyer and the seller as the seller may think fit; and (iv) charge the buyer interest on the amount unpaid, at the rate of five per cent (5%) per annum until payment in full is made, without prejudice to any other right or remedy available to the seller.
RETENTION OF TITLE - ALL MONIES CLAUSE
The risk in the goods shall pass from the seller to the buyer upon delivery of such goods to the buyer or according to applicable incoterms. However, notwithstanding delivery and the passing of risk in the goods, title and property in the goods, including full legal and beneficial ownership, shall not pass to the buyer until the seller has received in cash or cleared funds payment in full for all goods delivered to the buyer under this and all other contracts between the seller and the buyer for which payment of the full price of the goods thereunder has not been paid. Payment of the full price of the goods shall include the amount of any interest or other sum payable under the terms of this and all other contracts between the seller and the buyer under which the goods were delivered.
CONFORMITY INSPECTION AT DELIVERY
Unless specified herein, all deliveries are subject to the herein agreed tolerances as to dimensions and weight. Upon delivery the buyer shall carry out an inspection of goods to check weight, thickness and width as stated in this contract and any apparent defects and damage to goods (including without limit, any surface faults, package faults or other apparent defects) which shall then be notified to the seller in writing without delay.
The notification of such apparent defects and damage to goods has to be supported with documentary evidence setting out the basis of the claim, including a third party inspection control certificate issued by a first class international inspection company (e.g. Sgs, inspectorate). The seller will be given the opportunity to inspect the particular goods.
To the fullest extent permitted under applicable law: (1) goods shall be considered automatically accepted upon their delivery to the buyer hereunder, if the buyer fails to make any comments in writing in respect thereof not later than 5 (five) working days after their delivery and before goods undergo any further processing and (2) no claim shall be accepted by the seller in respect of any alleged issue in relation to quantity or quality of goods delivered or their description or fitness for purpose, including but not limited to any defect, deficiency and/or failure of goods to meet the specific terms of this contract which a reasonable inspection would have revealed but where said inspection was not made.
DISCHARGING CONDITIONS FOR CFR LINER OUT IN BULK
Buyer is to provide for all necessary documents and all necessary means to guarantee a continuous flow of discharge of the goods after the ship's tackle, as fast as the vessel can deliver.
Should any stoppages and/or delays occur due to buyer’s failure to comply with the above, including but not limited to lack of cargo documents and/or transport alongside the vessel to enable direct delivery of the material, detention charges for any time lost as well as all costs directly and indirectly connected thereto will be for the buyer’s account.
Detention rate as per charter party agreement.
QUALITY CLAIMS
Claims in relation to quality or conformity of the goods shall only be valid when made in accordance with this quality claim section.
All quality claims (that are not time barred under the terms of this sales order) in relation to goods (''claimed goods'') shall be notified in writing and received by the seller within 50 days from arrival at discharge place. Within 10 days following such notification, the buyer shall, at its own cost and without prejudice to the seller's right to dispute such report, deliver to the seller the report of an independent international inspection company, containing the following information: date/number of shipping document(s); sales order(s) and/or specification(s); number and weight of delivered goods; weight and quantity of goods checked by the surveyor; full description of defects and quantity of claimed goods. The buyer must also, at its own cost, send a sample of claimed goods to the seller if so requested. Unless the seller agrees otherwise in writing, upon the buyer becoming aware of a potential quality claim,
The buyer agrees that none of the claimed goods shall be processed further, sold, dealt with or otherwise disposed of until the seller has conducted an inspection of such claimed goods. All claimed goods must be clearly marked and stored separately and safely, on trust for the seller.
QUANTITY CLAIM
Claims in relation to quantity of the goods shall only be valid when made in accordance with this quantity claim section.
All quantity claims shall be notified in writing to the seller. All quantity claims must be supported by an independent recognised surveyor's control certificates and original scale weight tickets conducted at discharge place. Quantity claims notification and fax copies of supporting documents must be received by the seller not later than 25 days after arrival to the discharge place and originals not later than 30 days after arrival at discharge place. A franchise of +/- 0.5% is allowed in case of overage or shortage and seller or buyer must be compensated only for the weight exceeding the +/- 0.5% franchise. If partial shipments are effected for this sales order, quantity claims shall be settled after the last shipment based on the entire quantity shipped.
DELIVERY / CALL OFF
The buyer shall take delivery of the goods in accordance with the agreed schedule of deliveries and with the applicable incoterms. In the event of the buyer failing to take the agreed quantity in accordance with the schedule, by the end of any specified month, the buyer will accept transfer of the balance of the goods, specified for delivery by the end of that month, to its account and accept invoices for these goods dated as at the last day of that month and subject to the agreed payment terms. The buyer also agrees to pay reasonable costs and expenses incurred by the seller (including, without limit, costs of storage, insurance or transport) where the buyer fails to take delivery in accordance with these terms or the agreed schedule.
In no event shall the seller be liable for any delay in delivery of the goods for whatever cause, unless said failure or delay is due to the wilful or negligent conduct of the seller.
LATE DELIVERY
In no event shall the seller be liable for any delay in delivery of the goods for whatever cause, unless said failure or delay is due to the wilful or negligent conduct of the seller.
LIMITATION OF LIABILITY
Notwithstanding any other terms or conditions purported to apply, the seller's aggregate liability for claims made under, or in connection with, this contract or supply of goods hereunder shall be limited to the aggregate purchase price payable for the goods under this contract.
Under no circumstances shall the seller be liable, howsoever and whatever the cause thereof (under contract, tort or otherwise), for: (1) loss of profit, business, contracts, revenues or anticipated savings (whether direct or indirect); or (2) special, punitive, indirect, incidental or consequential damage or loss of any nature whatsoever suffered by the buyer and/or any third party under, or in connection with, this contract or supply of goods hereunder.
Nothing herein is intended to exclude or limit either party's liability: to the extent that applicable law mandates that such liability cannot be contractually excluded or limited; or, for death or personal injury caused by negligence.
INSOLVENCY OR BANKRUPTCY PROCEDURE OF THE BUYER
In the event an insolvency procedure is filed by or against the buyer, or if the buyer becomes insolvent (as defined under applicable law), or in the event a resolution or a court order is made against it, whether as a body corporate or as a partnership, by reason of its winding up, or in the event, whether as an individual or as a partnership, it is adjudicated bankrupt or payment of its debts is suspended in whole or in part, or in the event the buyer convenes a meeting of or proposes or enters into any composition or arrangement with its creditor/s or in the event any other act comparable to the ones set out above occurs under any other jurisdiction ('buyer's default'), the seller shall be entitled, without prejudice to its other rights or remedies provided for by applicable law or under this contract, to suspend any further deliveries under this contract and also any or all other existing contracts between the buyer and the seller, up until buyer default is cured. Any such suspension by the seller shall not relieve the buyer of its obligations under this contract. In case of buyer's default described above, the seller shall further have the right to immediately terminate this contract and/or any other contract executed with the buyer.
APPLICABLE LAW
This contract is governed, construed and interpreted in accordance with the laws of England and Wales in every respect.
ARBITRATION
Any dispute arising out of or in connection with this sales order, and any documents related to it, or its subject matter, including any question regarding its existence validity or termination shall be referred to and finally resolved by arbitration under the rules of the London court of international arbitration (lcia), which rules shall be deemed to be incorporated by reference to this clause. The number of arbitrators shall be one appointed in accordance with the said rules. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English.
The seller shall have the option to refer any dispute arising out of or in connection with this sales order to the courts of England and Wales which shall have, where the seller makes such a reference, exclusive jurisdiction over any such dispute. In the event that the seller exercises this option.
FORCE MAJEURE
1.a) In This Sales Order, "Force Majeure Event" Means Any Cause Whether Direct Or Indirect Which Prevents Or Substantially Delays The Seller Or Buyer ("Relevant Party") From Performing Its Obligations (Save For Any Payment Obligations Relating To Payment Or Acceptance Of, Collection Of The Goods , Which Are Excluded From The Operation Of This Clause) Due To Events Beyond The Relevant Party's Reasonable Control.
1.b) The Events Covered By A) Above Will Include But Not Be Limited To: (I) Strikes, Lock-Outs Or Other Industrial Disputes (Whether Involving The Workforce Of The Party So Prevented Or Of Any Other Party), Act Of God, War, Riot, Piracy, Civil Commotion, Malicious Damage, Compliance With Any Law Or Governmental Order Or Judicial Court Decision Or Decision From Other Authorities, Rule, Regulation Or Direction, Embargoes, Accident, Breakdown Of Plant Or Machinery, Seizure, Fire, Flood, Storm, Consequences Of Epidemics And Pandemics; Or (Ii) Any Failure, Curtailment, Suspension Or Cessation Of Supplies Or Refusal To Make Supplies Of The Goods From The Seller’s Suppliers, Shippers Or Subcontractors (Whether Lawful Or Otherwise).
2. If either party is prevented or delayed in the performance of any of its obligations under this sales order by a force majeure event, that party shall without unreasonable delay serve notice in writing on the other party specifying the nature and extent of the force majeure event and shall, subject to service of such notice, have no liability in respect of the performance of such of its obligations as are prevented by the force majeure event during its continuation and for such time after it ceases as is necessary for that party, using all reasonable endeavours, to recommence its affected operations in order for it to perform its obligations,
3. If either party is prevented by force majeure from performance of its obligations for a continuous period in excess of three months, either party may terminate this sales order forthwith on service of written notice on the other party, in which case neither party shall have any liability to the other except in relation to obligations arising prior to the declaration of force majeure event under this clause. Taxes, duties and anti dumping measures.
SANCTIONS
In the event that either (i) buyer, or any companies affiliated with the buyer, or any of its owners, directors, officers, employees, agents or representatives become the subject of any sanctions administered and/or enforced by the us department of treasury’s office of foreign assets control (OFAC), the united nations, the European union, her majesty’s treasury, the Swiss state secretariat for economic affairs (seco) or any other relevant government authority (collectively the “sanctions”), or (ii) any sanctions affect, or threaten to affect, the seller or the buyer’s performance under executed sales order(s), the seller shall be entitled to suspend deliveries under the present sales order and/or terminate the present sales order at any time with immediate effect. For avoidance of doubt, buyer’s payment obligations for delivered material will remain valid and enforceable, notwithstanding any such termination or suspension by seller. The buyer shall not transfer the goods to any third party that is subject to sanctions (a “third party sanctioned entity”), by on-selling, supplying, allowing the off-take, exporting or in any other way transferring the goods to such third party sanctioned entity.
TAXES, DUTIES AND ANTI DUMPING MEASURES
Except as provided for under applicable incoterms, any and all taxes, duties, charges, rates, levies which may be assessed, imposed or levied by any authority in the country of destination of the goods contemplated by the present contract shall be for the account of the buyer.
It shall be a condition of this contract that if the department for international trade of the UK government or other competent authority announces or is reasonably likely to announce that the goods are or will be subject to trade or anti dumping measures involving the application of duties, quotas, tariffs, sanctions, embargoes or other trade measures on importation of the goods into the united kingdom or any other country of destination, the seller shall at its option be entitled either to require the buyer to reimburse on invoice any additional charges and duties imposed on the goods; or by notice cancel the contract or suspend its obligations under it without liability.
NO HARDSHIP
Seller and buyer are bound to perform their contractual duties even if events have rendered performance more onerous than could reasonably have been anticipated at the time of the conclusion of this sales order. In particular, without limitation, no hardship withdrawal or termination or renegotiation of the terms and conditions set forth in this sales order is therefore allowed in case of price fluctuations in the market.
ENTIRE AGREEMENT
This sales order, incorporating these terms and conditions, constitutes the entire agreement between the parties and supersedes and extinguishes all other terms, conditions, agreements (including but not limited to, the buyer's general conditions of purchase or other terms and conditions that the buyer purports to apply to this contract), warranties, representatives and undertakings, relating to its subject matter, whether written or oral, or whether expressed or implied by applicable statute, regulation, law, trade custom or course of dealing. Each party acknowledges that, in entering into this sales order, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out hereunder. Nothing in this sales order shall however limit or exclude any liability for fraud.
MISCELLANEOUS
No waiver by the seller of any breach of this contract by the buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
Where any provision of this contract is deemed by a court or competent authority to be invalid or unenforceable that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of this contract shall not be affected.
Any changes to this contract shall be effective only if agreed in writing by the parties authorised representatives.
Neither party has the right, without the written consent of the other party, to assign, transfer or otherwise purport to grant any rights in relation to this contract to any third party, with the exception of the seller who may assign the rights and transfer its obligations under this contract to its financing banks.
This sales order may be executed in one or more copies and may be exchanged by email or facsimile, with each considered to be valid and binding between the parties.
The parties agree that this sales order may be executed by either party by means of an electronic signature (in any form) which shall have the same force and effect as a manuscript signature and neither party may challenge the validity of this sales order due to the lack of a manuscript signature.
The terms of this sales order shall be deemed to be accepted by the buyer on signature or by accepting performance or performing any obligation under the sales order.
DELIVERY TERMS
THE ICC'S INCOTERMS 2020 SHALL APPLY.
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