CONDITIONS OF SALE
1.1 In these conditions:
1.1.1 “Buyer” means the person who accepts an Offer of the Seller for the Sale of the Goods or whose Order for the Goods is accepted by the Seller.
1.1.2 “Goods” mean the Goods (including any Goods delivered by the Seller in instalments or any parts for them) which the Seller is to supply in accordance with these Conditions.
1.1.3 “Seller” means WESSEX HANSEATIC MARINE SERVICES LTD.
1.1.4 “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
1.1.5 “Contract” means the agreement entered into by and between the Seller and Buyer for the purchase and sale of the Goods under the terms of the Conditions.
1.1.6 “Offer” means a quotation for the Goods submitted by the Seller in accordance with clause 3.1.
1.1.7 “Order” means an order for the Goods submitted by the Buyer in accordance with clause 3.2.
1.1.8 a reference to “writing” or “written” includes email and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute 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 OF THE SALE
2.1 These Conditions shall govern the Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
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. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 In entering into the Contract the Buyer warrants that it does so as agent of the owner(s) of any vessel(s) for which the Goods are to be supplied. The Buyer shall provide the Seller with full details of such vessel(s) and their owner(s) before the Seller shall accept any Order, and, if so requested by the Seller, shall provide confirmation from the owner(s) that they agree to be bound by the Contract in respec of the Goods.
2.5 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 which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other documentation or information issued by the Seller shall be subject to the correction without any liability on the part of the Seller.
3 ORDERS AND SPECIFICATIONS
3.1 An Offer shall be made by the Seller providing the Buyer with a written quotation setting out the Goods to be supplied and the price payable for such Goods. For the avoidance of doubt an Offer made under these Conditions, or any other type off quotation provided by the Seller to the Buyer, shall not constitute an offer for the purpose of the Contract.
3.2 An Order shall be placed by the Buyer on providing the Seller with a written notice to purchase the Goods in accordance with the terms of the Offer and these Conditions, or where no Offer has been made, on the Buyer providing the Seller with an order for the Goods. For the purpose of the Contract an Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions.
3.3 No Order submitted by the Buyer, regardless of whether an Offer has first been made by the Seller, shall be deemed to be accepted by the Seller unless and until confirmed by the Seller in writing, at which point the Contract shall come into existence.
3.4 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.5 The quantity, quality and description of and any specifications for the Goods shall be those set out in the Offer (if accepted by the Buyer) or Order (if accepted by the Seller).
3.6 The Seller reserves the right to make any changes in the specifications of the Goods which are required to conform with any applicable safety or other statutory requirements.
3.7 No Order which has been accepted by the Seller may be cancelled by the Buyerexcept with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
3.8 Each Order shall be deemed to be a separate offer by the Buyer to purchase the Goods under the Contract in accordance with the Conditions, which the Seller shall be free to accept or decline at its absolute discretion.
4 PRICE OF THE GOODS
4.1 The price of the Goods shall be the price quoted in the Offer or, where no Offer has been made or no price has been quoted within the Offer (or a quoted price is no longer valid), the prices listed in the Seller’s price list current at the date of acceptance of the Order. All prices quoted are valid for 30 days only or until earlie acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving written notice to the Buyer at any time before delivery of the Goods, 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, the costs of materials or other costs of manufacture), any 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.
4.3 The price is exclusive of any applicable duties and taxes (including Value Added Tax), which the Buyer shall be additionally liable to pay to the Seller.
4.4 Where the Seller agrees to payment of the price of the Goods in the form of alternative consideration, the Buyer will indemnify the Seller in respect of any duties, fees, taxes, levies, discounts, losses or other charges in connection therewith.
4.5 The price is the Seller’s ex works price and where the Seller agrees to arrange for the Goods to be sent to the Buyer the Buyer shall be responsible for the costs of loading, carriage and unloading which the Buyer shall be additionally liable to pay to the Seller.
5 TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the Goods on or at any time after the completion of 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 invoice the Buyer for 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 Subject to any special terms agreed in writing between the Buyer and the Seller, the Buyer shall pay for the Goods within 30 days of the date of the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time for payment of the invoice shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law or discount to which the Buyer is entitled). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
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 be entitled to:
5.4.1 cancel the contract or suspend any further deliveries to the Buyer;
5.4.2 appropriate any payment made by the Buyer to such of the Goods (or the 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);
5.4.3 charge the Buyer interest (both before and after any Judgement) on the amount unpaid, at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1998 from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); and
5.4.4 exercise its statutory right to claim compensation for debt recovery costs under the late payment legislation and/or charge the Buyer all costs for recovering monies due to it.
6 DELIVERY OF GOODS
6.1 Delivery of the Goods shall be completed by the Buyer collecting the Goods at the Seller’s premises within 7 days (or some other time as agreed in writing by the Seller and the Buyer) of the Seller notifying the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault or for any reason set out at clause 8.6, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limite 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.
6.5 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), delivery of the Goods shall be deemed to have been completed at 9:00am on the day after the last or agreed day on which the Seller agreed to take delivery of the Goods and, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage:
6.5.2 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 price of the Goods under the Contract or charge the Buyer for any shortfall below the price of the Goods under the Contract.
7 RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection, or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises at the time of delivery or, if the Buyer wrongfully fails to take delivery of the goods, at the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received cleared funds in full payment for the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, shall keep the Goods separate from those of the Buyer and third parties and properly stored, where possible in the original packaging or containers, maintained in satisfactory condition, protected and insured and identified as the Seller’s property and shall notify the Seller immediately if it becomes subject to any of the events listed in clause 9.1.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller 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 repossess the Goods.
7.5 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 all money owed by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.1 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Consumer Rights Act 2015), all warranties, conditions or other terms implied by statue or common law are excluded to the fullest extent permitted by law, provided that nothing in the Contract shall restrict or exclude liability for death or personal injury caused by the Seller’s negligence.
8.2 Where the Goods are sold under a consumer transaction (as defined by the Consumer Rights Act 2015 the statutory rights of the Buyer are not affected by these Conditions.
8.3 Any claim by the Buyer which is based on any defect in the quality of condition of the Goods or the Goods’ failure to correspond with their description or specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and 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 any direct or consequential loss arising from such defect or failure, and the Buyer shall be bound to pay for the Goods as if they had been delivered in accordance with the Contract.
8.4 The Seller shall not be liable for the Goods’ failure to comply with any statutory warranties not excluded under clause 8.1 in any of the following circumstances:
8.4.1 The Buyer makes further use of the Goods after giving notice to the Seller in accordance with these conditions;
8.4.2 the defect arises because the Buyer or the Buyer’s agents failed to follow the Seller‘s oral or written instructions for the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade or engineering practice regarding the same;
8.4.3 The Buyer alters the Goods;
8.4.4 The defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions; or
8.4.5 The Goods differ from the specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition 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 the Buyer the price of the Goods (or a proportion of part of the price), but the Seller shall have no further liability to the Buyer.
8.6 Except in respect of death or personal injury caused by the Seller’s negligence the Seller will not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions and the Seller’s entire liability under or in connection with the Contract shall not exceed 150% of the price of the Goods except as expressly provided in these Conditions.
8.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generally of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.7.1 Act of God, explosion, flood, tempest, fire or accident;
8.7.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.7.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.7.4 Import of export regulations or embargoes;
8.7.5 Strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.7.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery.
9 INSOLVENCY OF BUYER
9.1 This Clause applies if:-
9.1.1 The Buyer makes any voluntary arrangement with its creditors or becomes subject to an Administration Order or (being an individual or firm) it becomes bankrupt or (being a Company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction);
9.1.2 An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
9.1.3 The Buyer ceases, or threatens to cease, to carry on any business;
9.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 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 then payment for the Goods shall become immediately due notwithstanding any previous agreement or arrangement to the contrary.
10 EXPORT TERMS
10.1 In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the contract is made. Unless the context otherwise requires, any terms or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
10.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Clause 10 shall (subject to any special terms agreed in writing between the Buyer and Seller) apply notwithstanding any other provision of these Conditions.
10.3 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.
10.4 Unless otherwise agreed in writing between the Buyer and Seller, the Goods shall be delivered F.O.B to the air or sea port of shipment and the Seller shall be under no obligation to give notice under Section 32 (3) of the Sale of Goods Act 1979.
10.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11.1 The Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other associated Company provided that any act or omission of any such other associated Company shall be deemed to be the act or the omission of the Seller.
11.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.3 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.5 The Contract (Rights of Third Parties) Act 1999 shall not apply to this Contract.
11.6 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
11.7 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.