Trade Customer Terms and Conditions
1.1 In these Conditions: “Buyer” means the person/company/firm whose order is accepted by the Seller.
“Conditions” means the standard terms and conditions of sale set out in this document and including any special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means any Contract between the Seller and the Buyer for the purchase and sale of the Goods.
“Delivery Date” means any date within the period of dates agreed between the Seller and Buyer for delivery.
“Goods” means all the goods that are supplied to the Buyer by the Seller under any Contract between them.
“Named Port,” means the port notified by the Buyer in accordance with clause 15.3.3 to which the Seller shall make delivery of the Goods on the Delivery Date.
“Named Vessel,” means the vessel notified by the in accordance with clause 15.3.3 to which the Seller shall make delivery of the Goods on the Delivery Date.
“Seller” means ‘Odysea Ltd.’.
1.2 Any reference in these Conditions to any provision of statute or statutory instrument shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis for Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any order of the Buyer that is accepted by the Seller. By placing an order for the goods the Buyer shall be deemed to have accepted these conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 The Seller shall not be liable for any advice given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods unless the Seller confirms such advice.
3. Formation of the Contract
3.1 A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise any quotation at any time prior to the Seller’s acceptance of the Buyer’s order.
3.2 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loses (including loss of profit), costs, damages, charges and expenses incurred by the Seller as a result of cancellation.
The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted, the price listed in the Seller’s published price list current at the date of delivery.
5.1 Unless otherwise agreed in writing, the Seller shall be entitled to invoice the Buyer for the price of the Goods, including any transport, packaging and insurance charges, on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price of the Goods at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods in full within the credit period previously agreed between the Seller and the Buyer from the date of delivery, notwithstanding that the property in the goods may not have passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
5.3 If in the opinion of the Seller the credit-worthiness of the Buyer shall have deteriorated prior to delivery or collection (as the case may be), the Seller may require full or partial payment of the price prior to delivery or collection (as the case may be) or the provision of security for payment by the Buyer in a form acceptable to the Seller.
5.4 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall (at its option) be entitled to:
5.4.1 treat the Contract as repudiated by the Buyer and suspend any further deliveries to the Buyer, claim damages from the Buyer and charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 2 per cent per month above the National Westminster Bank Plc base rate from time to time, until payment in full is made; or
5.4.2 affirm the Contract, claim damages from the Buyer and charge the Buyer interest (in accordance with Clause 5.4.1).
6.1 All items that the Seller is to deliver will be delivered to the Buyer’s address, if known. In the absence of such address, delivery is deemed to be at the Seller’s premises.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in the delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
6.3 Where delivery of the Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to 5 per cent more or 5 per cent less than the quantity ordered and in such event the Buyer shall pay for the actual quantity delivered.
6.4 Subject to Clause 6.3, if the Seller is satisfied that the Goods have been short delivered, the Seller shall at its option:
6.4.1 make up any short delivery by dispatching to the Buyer such Goods as the Seller is satisfied were not delivered; or
6.4.2 allow the Buyer credit thereof.
The Seller’s liability shall be limited to making up the delivery or allowing credit as above.
6.5 If the Seller fails to deliver the Goods for any reason (other than any cause specified in Clause 12 or the Buyer’s fault) and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including handling and insurance) of storage; or
6.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Contract price or charge the Buyer for any shortfall below the Contract price.
The risk of loss and damage to the Goods shall pass to the Buyer immediately upon delivery unless the Goods are to be collected by the Buyer when the risk of loss and damage to the Goods shall pass to the Buyer upon the Seller notifying the Buyer that the Goods are ready for collection.
8.1 Notwithstanding delivery and the passing of risk in the Goods, the property in the Goods shall not pass to the Buyer and shall remain in the Seller until either such time as the Buyer shall have paid to the Seller the full price for all the Goods sold by the Seller to the Buyer under any and all Contracts between them or the Seller shall have written to the Buyer notifying the Buyer that the property in the Goods has passed to the Buyer.
8.2 Until such payment the Buyer shall carefully store the Goods in such a way as to enable them to be identified as the property of the Seller and keep them insured [against all loss or damage howsoever caused] at its own expense. Where the Goods are subject to temperature controlled storage conditions, the Buyer must ensure that appropriate and agreed temperature control is maintained throughout the time that the Seller retains the title to the Goods.
8.3 The Seller reserves the immediate right of repossession of any Goods to which the Seller has retained title as aforesaid exercisable at any time after delivery or collection of the Goods and the Buyer hereby grants an irrevocable right and licence to the Seller’s servants and agents to enter upon all or any premises where the Goods are stored without prior notice for this purpose.
8.4 Until payment the Seller reserves the right to trace into any proceeds of sale of any Goods to which the Seller has retained title and the Buyer shall place all such proceeds into a separate account on behalf of the Seller
9.1 Any claim by the Buyer which is based on any defect in the quality or fitness for the purpose of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be noted on the corresponding invoice or delivery note by the Buyer and be notified to the Seller in writing within 2 days after delivery. If delivery is not refused, or no note is made on the invoice or delivery note, or the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
9.2 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or fitness for purpose of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price).
9.3 Subject to the foregoing conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Goods (apart from terms implied as to title under the Sale of Goods Act 1979 or terms implied under the Consumer Protection Act 1987) are hereby excluded and the Seller shall be under no liability to the Buyer for any loss (including loss of profits), damage or injury direct or indirect resulting from defective material faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Seller its employees or agents save that the Seller accepts liability for death or personal injury caused by the negligence of the Seller.
10. Third Party Rights
The Seller and Buyer intend that the Seller shall transfer to the Buyer only such title as the Seller may have in the Goods and the Seller shall have no liability to the Buyer in the event of Goods infringing or being alleged to infringe the rights of any third party.
11. Trade Marks
The Buyer will not do or authorise any third person to do any act which would or might damage or be inconsistent with the trade marks used by the Seller in relation to the Goods or to the goodwill associated therewith and, in particular, will not do or authorise the alteration, obliteration, covering up or incorporation of other marks (in whole or in part) on to the Goods. All advertising, promotion and selling materials supplied by the Seller to the Buyer shall remain the property of the Seller and the Buyer shall not permit any other person to make use thereof.
12. Force Majeure
12.1 The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of the Goods being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond the Seller’s reasonable control including (but not limited to) act of God, war, riots, explosion, abnormal weather conditions, fire, flood, Government action, strikes, lockouts, delay by suppliers, accidents and shortage of materials, labour or manufacturing facilities.
12.2 If due to such circumstances or events the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.
13. Licences and Consents
If any licence or consent of any government or other authority shall be required for the acquisition, carriage or use of the Goods by the Buyer the Buyer shall obtain the same at its own expense and if necessary produce evidence of the same to the Seller on demand. Failure to do so shall not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred by the Seller resulting from such failure shall be for the Buyer’s account.
14. Insolvency of the Buyer
14.1 This Clause applies if:
14.1.1 the Buyer makes any arrangement with its creditors or if a bankruptcy petition is presented or if the Buyer enters into liquidation whether compulsorily or voluntarily or has a receiver appointed of the whole or any part of its assets or undertaking or has an administrator appointed to manage its affairs, business and property or if it takes or suffers any similar action in consequence of debt;
14.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer or any other matter which in the opinion of the Seller may prejudice its rights against the Buyer.
14.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
15. Export Terms
15.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this Clause shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
15.2 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
15.3.1 The Goods shall be delivered to the Buyer by delivery f.o.b. the Named Vessel at the Named Port on the Delivery Date, which shall be deemed to be delivery for the purposes of Clause 6.
15.3.2 Risk in the Goods shall pass to the Buyer immediately upon commencement of the loading operation at the port of shipment.
15.3.3 At least 20 days prior to the Delivery Date the Buyer shall notify the Seller of the Named Vessel and the Named Port. If the Buyer fails to give such notice the Seller shall have the right but not the obligation to give a counter notice to the Buyer stipulating a vessel and a port at which the Buyer shall take delivery of the Goods.
15.3.4 The Buyer shall indemnify and keep indemnified the Seller fully on demand against all losses (including loss of profit), costs (including the cost of labour and materials), or damages, charges and expenses incurred by the Seller arising from either:
18.104.22.168 the failure of the Buyer to give the notice referred to in clause 15.3.3 above; or
22.214.171.124 the failure of the Named Vessel to load the Goods on the Delivery Date.
15.3.5 The Seller shall be under no obligation to give notice to the Buyer for the purpose of s32 (3) Sale of Goods Act 1979.
16.1 Failure by the Seller to exercise or enforce any rights under this Contract or at law shall not be deemed to be a waiver of any such right nor operate to bar its exercise or enforcement at any future time or times.
16.2 All the dealings between the Buyer and the Seller are confidential. The Buyer must not use any information for its own purpose or disclose any information to third parties, other than approved representatives, other than as required by law, unless by agreement between the Buyer and the Seller.
16.4 If any provision or part of a provision of these Conditions shall be, or be found by any court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of these conditions, all of which shall remain in full force.
16.5 This Contract shall be governed and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts provided the Seller may sue the Buyer in the courts of any country, such proviso being for the sole benefit of the Seller.