Unless otherwise agreed in writing, each instalment shall be deemed to be a separate contract between Seller and Buyer.
2.- PRICE INCREASES.
Seller reserves the right to increase the price of the goods by notifying thereof at any time before delivery. If Buyer is of the opinion that any such increase in price is unreasonable, Buyer may, by written notice given within seven days after receiving Seller’s notice, cancel instalment deliveries not yet made and not in transit at the date of Seller’s receipt of Buyer’s notice.
3.- WEIGHT, VOLUME AND MEASURES OF GOODS.
The weight and volume of the goods shall be determined at the works or store of Seller or Seller’s Agent. The weight, volume and measures so determined and declared by Seller or Seller’s Agent shall be deemed to be the weight, volume and measures of goods delivered, unless Buyer or Buyer’s Agent shall notify any discrepancy in accordance with Condition 14 (c) below.
4.- DELIVERY TOLERANCE ON AMOUNTS.
Seller reserves the right to deliver against any order an excess or deficiency up to 10% of weight, volume, measures or amounts ordered.
5.- WARRANTIES AND RESPONSIBILITIES.
a) Seller warrants that the goods shall comply with the specifications provided by the Seller for the goods in question as current at the time. Seller does not guarantee the fitness of the goods for any particular purpose, even though that purpose is known and no such warranty is to be implied from the name under which the goods are sold.
b) Seller’s liability in contract or tort for any loss or damage arising (whether or not from Seller’s own negligence of the Seller himself) directly or indirectly out of the supply or use of the goods, or of the packages, pallets or containers by which the goods are delivered, shall be limited to the invoiced value of the delivery from which the loss or damage arises.
c) In no circumstances will Seller be liable for any consequential economic loss or damage no matter how arising.
6.- FORCE MAJEURE.
Neither party shall be liable to the other if, by reason of any cause which is either beyond the reasonable control of (or could not have been reasonably prevented by) either party, Buyer is prevented from or delayed in taking delivery or Seller is prevented from, hindered or delayed in making delivery of the goods or any part thereof at the times stated for delivery.
7.- SUITABILITY OF STORAGE FACILITIES AND COLLECTING VEHICLES.
a) Seller reserves the right at any time without notice to refuse to make delivery of any quantity of the goods without incurring any liability as a result thereof, if, in the opinion of the Seller, the storage tank or other installation into which such quantity of the goods would be transferred on delivery to Buyer is unsuitable by reason of being inaccessible to such transport, dangerous to persons or property or in contravention of any statue regulation, bye-law or other rule having the force of law. In such event, Seller shall be entitled to recover from Buyer all reasonable freight and other costs payable by Seller. Where, however, delivery is made by Seller of any quantity of goods, such delivery shall not in any way be deemed an admission on the part of the Seller as to the suitability of such storage tank or installation as aforesaid.
b) Buyer warrants that any collection vehicle, or other container provided by Buyer or anyone acting on Buyer’s behalf shall comply with all relevant legislation and applicable health and safety requirements and although Seller may inspect the same for the purpose of checking suitability and safe condition, Seller shall in no circumstances be responsible for the suitability or condition thereof or liable for any damage or loss resulting there from.
8.- FAILURE TO MAKE OR TAKE DELIVERY.
a) Should Seller fail to make delivery of the goods or any part thereof within a reasonable time of the times agreed for delivery for any cause other than those mentioned in Conditions 6 and 7 above, then Seller’s liability in respect of such failure shall be limited to the proved excess (if any) over the price under this contract of the cost to the Buyer of similar goods to replace those not delivered (having made reasonable efforts to purchase such goods in the cheapest available and reasonably convenient market).
b) Notwithstanding Condition 1 above, should Buyer fail to take delivery of the goods or any part thereof at the times stated for delivery by reason of any cause other than those mentioned in Condition 6 above, then Seller shall be entitled to cancel such delivery and all other outstanding deliveries or instalments and to charge Buyer with any loss suffered.
9.- DELIVERY AND RISK.
Unless otherwise specified, no matter which party has paid the freight and insurance, the goods shall be deemed to have been delivered and risk shall pass to Buyer as soon as the goods, containers, pallets, etc have been placed on the vehicle transporting them.
If otherwise specified, at the request of Buyer and after acceptance by Seller, delivery shall be deemed to be effected and risk shall pass to Buyer as follows:
a) Where goods are collected by Buyer or anyone acting on its behalf (EX WORKS): when goods, containers, pallets, etc have been placed on the vehicle transporting them.
b) Where goods are delivered by ship (FOB): when the goods have crossed the ship’s rail at the port of shipment.
c) Where goods are delivered by rail or road (FCA, FAS): when goods have been placed on the vehicle transporting them.
d) Where Seller can arrange to pay carriage and/or insurance fees (CFR, CIF, CPT, CIP): delivery shall be deemed to be effected and risk shall pass to Buyer when goods have been placed on the vehicle transporting them. Where delivery is made at the place of destination or at the customs border (DAP, DAT, DDP), the same shall be deemed to be effected and risk shall pass to Buyer: when goods, containers, pallets, etc have crossed the rail or board of the vehicle transporting them.
10.- TITLE TO GOODS.
a) Title to goods to which this contract relates shall only pass to Buyer upon delivery where Seller has received full payment in respect thereof prior to such delivery.
b) In all other circumstance, title to the goods shall remain vested in Seller and Buyer shall keep the goods as holder until full payment in respect thereof has been received by Seller or the goods have been processed or incorporated into another composition or product, whichever is the earlier.
c) So long as title to the goods remains vested in Seller, Buyer shall hold the goods in store in such a manner as clearly and separately to identify the same as the goods of Seller, or where the goods are of necessity stored in premises with other goods of like specification, to indentify the quantity therein being the property of the Seller and Seller shall have the right, without prejudice to the obligation of Buyer to purchase the goods, to recover possession of the goods and for that purpose to enter into any premises occupied by the Buyer.
d) Nothing herein shall prevent or restrict Buyer from selling in the ordinary course of business goods which have been processed or compositions into which the goods have been incorporated, but if goods are resold before payment in respect thereof has been received in full, Buyer shall hold as trustee for Seller all monies recovered from the sale of such goods and debited to Seller.
a) Payment shall be made and received no later than the date specified on the invoice or any other date agreed in writing.
b) Seller reserves the right to charge interest at an interest rate three percentage points (3%) higher than the EURIBOR reference interest rate for asset operations, on alls amounts due to Seller but not paid by Buyer on the due date specified above (a), from said date until the full payment is received by Buyer.
c) Upon failure of Buyer to make any payments due to Seller by the time stipulated in respect of any other goods which are subject to a contract sale between Buyer and Seller, any credit given by Seller in respect of this contract may be terminated forthwith and the unpaid price of the contract may become immediately due for payment without prejudice to Seller’s rights under Condition 10 above.
12.- PACKAGES, PALLETS AND CONTAINERS.
Any packages/pallets/containers supplied on a returnable basis shall be returned, in good and complete condition and at Seller’s expense, to the works or store specified on Seller’s invoice, and Buyer shall give notice to Seller of the date of dispatch. If Buyer fails to return within reasonable time and, in any case, within three months of receipt by Buyer, any such packages/pallets/containers in good and complete condition, Seller shall charge Buyer the replacement costs thereof.
Without prejudice to its other rights and remedies, Seller may defer or cancel any further deliveries or instalments of goods in the event that the Buyerl
a) fails to make any payment when it becomes due, or
b) enters into any composition or arrangement with its creditors, or
c) has an Administrator, Administrative Receiver or a Receiver appointed or shall pass a resolution for winding up or a Court shall make an Order to that effect, or
d) has a Receiving Order made against it, or
e) is in breach of any of the terms or conditions hereof.
a) All claims for damage to or partial loss of goods in transit must be submitted in writing to insurance company and Seller or Seller’s Agent within three days of delivery and the delivery note must be endorsed accordingly.
b) All claims for non-delivery of the whole or part of any consignment or of any separate package forming part of a consignment must be submitted in writing to the insurance company and Seller or Seller’s Agent within seven days of receipt by Buyer or Buyer’s Agent of Seller’s invoice or advice note, whichever is the earlier.
c) As soon as reasonably practicable and in any case within seven days of receipt of the goods, buyer shall examine them for the purpose of ascertaining whether they conform to the contact, and if such goods do not conform, give written notice thereof immediately to Seller with sufficient particulars; Buyer shall permit Seller to investigate the matters relevant to such notification before the remainder of the goods comprised in the same consignment are used or returned to the Seller.
d) In the absence of notification as a claim or otherwise in accordance with (a), (b) or (c) above, the goods shall be deemed to have been delivered and accepted in conformity with the contract.
15.- TRADE MARKS AND PATENTS.
a) Nothing contained in this contact, whether express or implied, shall be deemed to confer any rights upon Buyer to apply any trade mark owned or licensed by use by Seller or any of Seller’s associated companies to any goods supplied under this contract.
b) When goods are made or adapted by Seller in accordance with Buyer’s specifications, Buyer shall indemnify Seller against all costs, claims and expenses incurred by Seller in respect of the infringement or alleged infringement by such goods of any patents, registered designs, trademarks or other rights belonging to third parties.
This contract is not assignable by Buyer without Seller’s prior consent in writing.
17.- VARIATION OF CONDITIONS.
No terms or conditions contained in the purchase order, conditions of purchase or other communications of the Buyer shall avoid or vary any of these Conditions of Sale which as a whole or separately cannot be avoided or varied except with the prior written agreement of Seller.