E.H. BENNETT & COMPANY LIMITED
CONDITIONS OF SALE FOR SEABORNE CARGOES
1. DEFINITIONS
"The Seller" means either E.H. Bennett & Company Limited or one of its associated companies
"The Buyer" means the Company or individual buying goods from the Seller.
"The Goods" means any goods sold by the Seller to the Buyer in accordance with these Conditions
"The Contract" means the Contract for sale and purchase of Goods whether covering one shipment, or several shipments.
"A consignment" means any one shipment where the Contract covers several shipments.
“Conditions” means the standard terms and conditions of sale set out in this document.
“Seller’s Sales Contract” means a formal written contract prepared by the Seller.
“Writing” includes letter facsimile or E-Mail transmission or other comparable means of communication.
2 THE CONTRACT
2.1 The terms of the Contract shall be those set out in the Sellers' Sales Contract (which also incorporates these Conditions) duly signed by the Buyer or where there is no such Sales Contract in accordance with any written quotation given by the Seller or any written order of the Buyer which is accepted in writing by the authorised representative of the Seller, subject in each case to these Conditions. These Conditions and the terms of the Seller’s Sales Contract shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted or any order is purported to be made, by the Buyer
2.2 Variations or alterations to the Contract terms or these Conditions can only be made with the agreement in writing of both Seller and Buyer.
2.3 The Seller's Employees or Agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing and the Buyer acknowledges that it does not rely on, and waives any claim in respect of any such representations which are not so confirmed.
2.4 Any advice or recommendation 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 is followed or acted upon entirely at the Buyer’s risk and it is for the Buyer to satisfy itself on all such matters and accordingly the Seller shall have no liability whatsoever to the Buyer for any loss or damage whatsoever which the Buyer may suffer arising out of or in connection with such advice or recommendation.
2.5 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3. PRICE OF GOODS
3.1 The price of the Goods shall be the price stated in the Seller’s Sales Contract or where there is no such Sales Contract the Seller’s quoted price. All prices quoted are valid for 30 days only (or such lesser time as is stipulated in the quotation) or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer
3.2 Except where the Seller’s Sales Contract states to the contrary, the Seller reserves the right by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller ( such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other costs of manufacture) change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the seller adequate information or instructions
3.3 Unless expressly stated or agreed otherwise, prices no not include value added tax, other taxes, import or export duties, or other impositions of any nature whatsoever. Any taxes, import or export duties or other impositions which the Seller may be required to pay under any existing or future laws upon or in respect of the sale, purchase, storage, delivery or transportation of the Goods shall be for the account of the Buyer. The Buyer shall pay the amount of such tax, duty or imposition to the Seller together with the price.
3.4. All prices shall be paid in the currency specified in the Contract.
4. WEIGHT AND QUALITY OF THE GOODS
4.1 Unless expressly agreed in writing:-
4.1.1 the weight of cargoes shipped by sea shall be ascertained either by means of a draft survey on the vessel, carried out by a mutually agreed Independent Draft Surveyor at port of loading or by weighbridge;
4.1.2 in respect of Goods shipped on truck, weight shall be ascertained by means of weighbridge tickets in respect of each truck load; and
4.1.3 in all cases, the quality of the Goods shall be ascertained by a mutually agreed independent Analysis and Inspection Company to an Internationally agreed standard at the port or place of loading.
4.2 The findings of the Draft Surveyor and the Analysis and Inspection Company shall be final and binding on both parties as will be the evidence provided by weighbridge tickets (where the weight of cargoes is ascertained by this means).
4.3 Where the parties cannot agree on the identity of the Analysis and Inspection Company or the Independent Draft Surveyor, the Seller shall in that event have the right to nominate the Independent Draft Surveyor and/or the Analysis and Inspection Company.
4.4 The cost of the Inspections, analyses, and/or Weighbridge Company referred to above shall be borne by the Sellers.
5. COMPOSITION, QUALITY OR CHARACTERISTICS
5.1 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s Sales Contract but where there is none in the Seller’s quotation (if accepted by the Buyer) or in the Buyer’s order (if accepted by the Seller).
5.2 All representations and warranties, express or implied, statutory or otherwise, indicating quality or fitness for any purpose of Goods are expressly excluded.
5.3 Subject to sub-clause 5.4 the Seller shall not be liable to the Buyer (following re-sale of the Goods by the Buyer) for any claims arising from defects in the Goods whether in contract, tort, or under any statute providing that nothing in this condition shall affect the Seller's liability for death or personal injury arising from negligence.5.4 The Buyer shall indemnify and keep indemnified the Seller against all liability (whether arising in contract, tort or by statute) in respect of any injury to or the death of any person, damage to any property moveable or immovable by reason of or arising directly or indirectly from a defect or defects in the Goods caused by the Buyer or from any materials included with the Goods on re-sale by the Buyer.
5.5 Any indication contained in any publicity material, or data sheets of the Seller or in correspondence between the Seller and the Buyer, whether direct or indirect, of typical composition, quality or any characteristics in relation to the performance of Goods to be supplied by the Seller relates to the average standard derived from samples taken and analyses made before the date of this contract. Reasonable variations in composition, quality, and other characteristics are to be expected in the Goods and shall not form the basis of any claim by the Buyer. Exceptional variations shall be dealt with by agreement (where possible) or failing that under Clause 11 of these Conditions.
6. PAYMENT
6.1 Payment shall be effected when due in relation to each consignment without any deduction or set-off relating to claims in connection with other consignments. If the Buyer has a claim in respect of the consignment when payment is due on that consignment, it shall be a condition precedent to him raising that claim that the purchase price for the consignment should first be paid into a joint interest bearing escrow account in the names of the Seller and the Buyer pending resolution of the Buyer's dispute or claim. If the Buyer fails to comply with this condition, payment in respect of the disputed consignment shall be effected thereafter without any deduction or set-off.
6.2 If the Buyer fails to pay the price for any consignment when due, then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled:-
6.2.1 if the Goods were sold under a Contract for several consignments, to suspend delivery of further consignments and/or cancel the Contract and;
6.2.2 to demand immediate payment of any amount invoiced but unpaid under any other Contract between the Seller and the Buyer (even if such amount is not yet due); and
6.2.3 to appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer)
6.2.4 to charge the Buyer interest (both before and after any judgment)on the amount unpaid at the rate of 4% above Barclays Bank Plc Base Lending Rate from time to time until payment is made in full(a part of a month being treated as a full month for the purpose of calculating interest).
6.3 The Seller shall be entitled to charge the Buyer for all costs (including legal costs) incidental to the collection of any sums not yet paid.
6.4 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 is alleged to have or for any reason whatsoever
7. TRANSPORT ARRANGEMENTS AND RISK
7.1 For CIF and C&F sales, the Seller's obligation is to make proper arrangements for the carriage of the Goods and for delivery of the Goods into the care of the Carrier chosen by the Seller. The Seller shall have an unfettered discretion as to the means of carriage and as to the route to be followed.
7.2 For FOB and FOT sales, the Buyer shall make all arrangements for the carriage of the Goods and the Seller's only obligation is to deliver the Goods into the care of the Buyer's chosen Carrier.
7.3 Save as set out above, the Seller has no liability in connection with the carriage of the Goods and shall not be liable for any delay in the delivery of the Goods. All dates quoted for delivery are approximate only and without any responsibility on the Seller. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
7.4 Risk shall pass to the Buyer as soon as the Seller delivers the Goods into the custody and care of the chosen Carrier whether the Goods are sold CIF, C&F, FOB, or FOT.
8. INSURANCE
8.1 In a CIF sale, the Seller shall provide a policy of marine insurance or a certificate that insurance has been effected on customary terms (excluding War Risks) for the invoice CIF value of the shipment plus 10%.
8.2 In C&F, FOB, and FOT sales, the Buyer shall make its own insurance arrangement to cover transit risks.
9. CONSIGNMENT OF GOODS AND DELIVERY
9.1 Where Goods are consigned in the Seller's trucks or compartments or containers, or vessels, the Buyer undertakes to discharge and/or unload the Goods promptly and in any event within the time required by any Contract to which the Seller is subject details of which have been provided to the Buyer. The Buyer will indemnify the Seller against any loss or damage or expense suffered by the Seller as a result of the Buyer failing to comply with this Condition.
9.2 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 then, without prejudice to any other right or remedy available to the Seller, the Buyer may:-
9.2.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
9.2.2 sell the Goods at the best price readily available and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
10. RETENTION OF TITLE
10.1 Property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the purchase price for the Goods (including any interest payable under clause 6.2.4)
10.2 Until such time as the property in the Goods passes to the Buyer under 10.1 above, the Buyer shall hold the Goods to the Seller's order and shall keep the Goods separate from those of the Buyer and Third Parties and properly stored, protected and insured and identified as the Seller's property. During such time, the Buyer shall still be entitled to re-sell or use the Goods in the ordinary course of its business.
10.3 Until such time as the property in the Goods has passed to the Buyer (provided the Goods are still in existence and have not been re-sold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller's order and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any Third Party where the Goods are stored and re-possess the Goods.
10.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so then all monies owing by the Buyer to the seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable
11. CLAIMS AND LIABILITIES
11.1 The Buyer shall inspect the Goods immediately upon delivery by the Carrier.
11.2 The following Conditions shall apply to all claims by the Buyer against the Seller regarding the quality or quantity of the goods delivered to the Buyer (except where the Buyer seeks to reject the goods in their entirety in which case Clause 11.3 shall apply).
11.2.1 The Buyer must lodge his claim with the Seller by telefax, or registered mail within seven days from the moment the Goods are available for inspection by the Buyer and in any event before the Goods are consumed or commingled by the Buyer.
11.2.2 In his claim, the Buyer shall indicate to the Seller where the Goods are being stored and give the Seller an opportunity to inspect the Goods using his own independent Surveyor.
11.2.3 Within fifteen days of the original claim, the Buyer must provide full particulars of his claim in turn accompanied by a report made by his own Independent Surveyor, such claim and report to be sent to the Seller by registered mail
11.2.4 The Buyer shall forward to the Seller together with his claim samples of the goods in dispute.
11.2.5 If the Buyer fails to comply with his obligations under this Clause, any claim against the Seller in relation to quality or quantity of the Goods shall be deemed to be waived and absolutely barred.
11.3 When the Buyer seeks to reject the goods in their entirety on the grounds that they do not comply with the requirements of the Contract in terms of quantity, quality or description, the following procedure shall apply:-
11.3.1 The Seller has the option to require the Buyer to provide every assistance in mitigating the financial consequences of a rejection by the Buyer including (but not limited to) taking physical delivery of the goods and providing storage space and other reasonable facilities to enable the Seller to remedy a deficiency affecting the quality or description of the goods.
11.3.2 If the Buyer's rejection is on the basis of quantity, (whether excess or short) the Seller may nonetheless require the Buyer to purchase the goods at the same rate per ton as that laid down in the Contract, providing that the shortage or excess complained of is no more than 10% of the amount which the Buyer has contracted to buy.
11.3.3 If the Buyer's rejection is on the basis of quality or misdescription, the Seller shall be entitled to require the Buyer to purchase the cargo at the rate agreed in the Contract per ton providing that the Seller is able substantially to remedy the breach of description or breach of quality relied on by the Buyer.
11.3.4 The Seller agrees to bear the reasonable costs of the Buyer incurred in complying with 11.3.1. and will also bear its own costs and expenses in carrying out any necessary remedial work on the goods.
11.3.5 The exercise by the Seller of its rights under Clause 11 shall be without prejudice to the Seller's right to challenge the correctness of the Buyer's rejection. In the event of such a challenge, if the Seller succeeds, all costs and damages incurred by the Seller as a result of the wrongful rejection (including costs and expenses under 11.3.1 & 3 above) shall be paid by the Buyer. If the Buyer succeeds in justifying the rejection, the Seller shall remain responsible for costs and expenses as set out in 11.3.1 & 3.
11.4 The Seller shall have no liability for indirect or consequential losses sustained by the Buyer or any costs or expenses associated therewith arising out of or in connection with the performance of the Contract.
11.5 No breach by the Seller of its obligations in relation to any individual consignment or consignments shall entitle the Buyer to treat the Contract of which the consignments form part as repudiated. For the purpose of this Clause only, each consignment shall be treated as if it were the subject of a separate Contract.
12. TERMINATION
12.1 The Seller shall be entitled to terminate the Contract forthwith without notice or (in its absolute discretion) to suspend the shipment of further consignments under the Contract without liability to the Buyer in the cases set out in 12.2 below.
12.2 The Seller's right of termination and/or suspension arises in the following cases:-
12.2.1 If the Buyer makes any proposal for a voluntary arrangement or enters into a composition with its creditors or
12.2.2 If a petition is presented for an administration order to be made in respect of the Buyer or
12.2.3 If a petition is presented for the winding up of the Buyer a meeting of creditors is called for the Buyer to be placed into voluntary liquidation or a resolution is passed for the Buyer to go into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction) or;
12.2.4 If the Buyer (being an individual) has a bankruptcy order made against him; or
12.2.5 If an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
12.2.6 If the Buyer becomes insolvent or any insolvency procedure is commenced in any jurisdiction; or
12.2.7 the Buyer ceases to carry on business.
12.3 If the Seller reasonably believes that any of the events mentioned above is about to occur, the Seller shall be entitled to notify the Buyer of the Seller's concern by fax and if the Buyer fails to provide the Seller with convincing evidence that the event in question will not occur, the Seller is entitled to proceed under this Condition as if the event in question had occurred.
12.4 If the Seller exercises its rights to terminate in circumstances where Goods have been delivered to the Buyer but not paid for, the price for such Goods shall forthwith become due and payable regardless of any prior agreement to the contrary.
13. FORCE MAJEURE
13.1 In this Clause, the events or circumstances constituting "Force Majeure" are as follows:-
Strikes, lock-outs, labour disputes, sabotage, storm, floods and other natural phenomena, explosion, accidents, fire, war or acts of war whether declared or not, civil commotion, riot, insurrection, epidemic, quarantine, sickness of personnel, embargo, mobilisation, non-delivery or delayed delivery from Seller's Suppliers, shortage of suitable transportation or loading or unloading facilities, delay or hindrance to loading or unloading of transport, distrains of whatever kind, shortage of energy or raw materials, operational difficulties of any kind, export or import restrictions or prohibitions, imposition of quotas and/or other measures or acts of any government or local authority.
13.2 The Seller shall not be liable for breach of any obligation under the Contract where the breach has been caused by the operation of Force Majeure.
13.3 If the Force Majeure lasts longer than three months from the date of the first breach of obligation caused thereby, the Seller shall be entitled (but not obliged) to cancel the Contract forthwith in writing without penalty. Such cancellation will however be without prejudice to the Seller's accrued rights up to the date of cancellation.
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