Terms

Terms
Keeling & Walker Limited Standard Terms and Conditions of Sale

STANDARD CONDITIONS OF SALE - AMC (“the Seller”)
General

These conditions (together with those stated on the face hereof) are the only conditions upon which the Seller is prepared to deal with the Buyer and they shall govern this Contract to the entire exclusion of any other express or implied conditions. To the extent that there is any inconsistency between the conditions set out in the Seller’s contract documents and these standard conditions, the former shall prevail.


These Conditions may only be modified by a variation in writing (which shall include faxes and e-mails), by the Seller, and no other action of the Seller (whether delivery of the goods or otherwise) shall be construed as acceptance of any other conditions or of any modification hereto.


These Conditions, together with the Seller’s contract documents to which they relate, embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications.


Any quotation in whatever form given to the Buyer is given subject to these Conditions and does not constitute an offer to sell.  All orders placed with the Seller require the Seller’s acceptance before any contract arises.


Price and Payment

The Buyer shall pay the price in the manner specified on the face hereof, and prices quoted shall be ex-works unless stated to the contrary on the face hereof.  Where the Seller quotes a C.I.F. price (per INCO terms) this shall not include costs of discharge, import or other duties, dues, taxes and any other costs chargeable in respect of the cargo at ports of discharge.


If any payment that is to be made hereunder by the Buyer to the Seller is overdue, without prejudice to any other rights in respect thereof, interest will be chargeable thereon as well as before judgement on a day to day basis at an annual rate of 4% above the HSBC Bank Limited Base Rate from time to time applicable, until the sum due is paid.


Where any sum owed by the Buyer to the Seller under this or any other contract (including but not limited to any interest) is overdue, or if at any time the credit standing of the Buyer has, in the opinion of the Seller, been impaired for any other reason, the Seller may withhold any deliveries of goods due to be made under this contract until arrangements as to payment or credit have been established which are satisfactory to the Seller or may in its discretion cancel the contract so far as it remains unperformed, and without prejudice to any other rights the Seller may have in respect thereof at the date of such suspension or cancellation, as the case may be.


Buyer agrees that Seller may set off all amounts that are due or become due from Seller to Buyer against all amounts that are due or become due from Buyer to Seller under this contract and between each and every contract between the parties.


Reservation of Title

The risk in the goods supplied under the contract shall pass (in accordance with INCO terms where specified), to the Seller on completion of delivery at the specified delivery location.  For the avoidance of doubt, where Seller arranges transport from the delivery location to the end destination on behalf of the Buyer, such goods shall be at the Buyer’s risk until arrival


Title to the goods shall not pass to the Buyer until the Seller has received payment in full (in cash or cleared funds) for the goods or other goods which Seller has supplied to the Buyer in respect of which payment has become due.


Until title to the goods has passed to the Buyer, the Buyer shall (i) hold the goods on a fiduciary basis as Seller's bailee (ii) store the goods  separately from all other goods held by the Seller so that they remain readily identifiable as Sellers property (iii) not remove, deface or obscure any identifying mark or packaging on or relating to the goods (iv) maintain the goods in satisfactory condition and keep them insured against all risks for their full price on Seller's behalf from the date of delivery (v) give Seller such information relating to the goods as Seller may require from time to time, but the Buyer may resell or use the goods in the ordinary course of its business


 If before title to the goods passes to the Buyer, the Buyer becomes subject to an insolvency event, or Seller believes that any such event is about to happen and notifies the Buyer accordingly, then, without limiting any other right or remedy, Seller may at any time require the Buyer to deliver up the goods and, if the Buyer fails to do so on demand, the Seller may enter any premises where the goods are stored in order to recover them.


Should the goods be converted into a new product, whether or not such conversion involves the admixture of any other goods or thing whatsoever, the conversion shall be deemed to have been effected on behalf of the Seller;
Any proceeds from any disposal of the goods or of any such new product by the Buyer shall to the extent of any sums due to the Seller be held on trust for the Seller absolutely.


Shipment and Storage

The date of delivery is the best estimate of such date, but the Seller reserves the right to alter the same without notice.


The goods may be shipped in one or more parcels, and each shipment shall be treated as a separate contract to which the terms and conditions hereof shall mutatis mutantis apply; provided that this condition shall be subject to, and in no way derogate from, the rights of the Seller herein to suspend or terminate the whole contract in the circumstances mentioned.


Without prejudice to any other rights the Seller may have, the Seller reserves the right to put the goods or any portion thereof into storage at the Buyers risk and expense where (i) the goods are about to be despatched and the Buyer notifies the Seller that the Buyer is or will be unable or unwilling to receive the goods or for any other reason will be unable to accept delivery of the goods when tendered (ii) the Seller is ready to despatch the goods but needs delivery instructions and such instructions have not been provided by or on behalf of the Buyer or are inadequate (iii) Buyer fails to collect the goods when they are ready for collection in an ex works contract (iv) Buyer fails to nominate a ship to the Seller in an FOB contract (v) the Seller suspends delivery of the goods pursuant to this contract.


Insurance

Where shipments under this contract are made C.I.F. the goods are insured under Institute Commodities Clauses.  In the event of loss of, or damage to, goods after shipment under this contract but prior to actual arrival at discharge port and payment therefor the Buyer will make payment against the documents representing such goods and in the event of the carrying vessel being lost ,such payment shall be made immediately loss of the carrying vessel is established.


Limitations and Exclusions

Save as provided expressly in these conditions on the face hereof, and in Section 12 of the Sale of Goods Act 1979, all conditions and warranties express or implied as to the quality or fitness for any purpose of the goods are hereby expressly excluded.


(The Seller warrants that allowing for reasonable variations in shade and/or quality, goods sold against sample shall comply with such sample.  Should goods fail to do so the Buyer shall give notice thereof, forthwith upon delivery to the Seller.


In the case of any breach of contract including failure to deliver on time (or at all) by the Seller, or any other claim or dispute relating to this contract – whether due to negligence or otherwise, the maximum amount recoverable by the Buyer shall be the price already paid and in any event the Sellers aggregate liability to the Buyer in respect of any breach or breaches or non-performance of the contract howsoever caused or arising shall not exceed the purchase price of the goods.


All drawings, descriptions, illustrations, specifications, performance data, dimensions, weights and the like whether contained in any contract or made by way of representation will have been provided by the Seller on the basis they are as accurate as reasonably possible, but the Seller does not warrant and no warranty shall be implied that the same are accurate.


The Seller shall not be liable under any circumstances for any loss or damage howsoever caused which arises in respect of indirect or consequential loss or damage which shall for the purpose of this Clause include, but not be limited to, any loss or damage in respect of profits or income or business of whatsoever kind.


Compliance with Law

The goods are sold on condition that the Buyer carries out such tests and examination of the goods as are reasonably practicable to ensure that when used the goods are safe and without risk to health and comply with all local laws and regulations, and if so requested by the Seller, shall enter into a written undertaking to take such steps as may be specified by the Seller relating to such tests and examination.


The Buyer shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010


The Buyer shall be responsible for ensuring that the goods meet all applicable laws and herby indemnifies the Seller against any loss or expense to the Seller arising from failure by the Buyer to obtain in due time any import licence or permit or the like which may be required for the importation of the goods at destination or from the subsequent revocation or non-renewal of such permit.


Indemnities and Limitation of liability

The Buyer shall indemnify Seller  from and against any and all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Seller in connection with any claim made against Seller for actual or alleged infringement of (i) a third party's intellectual property rights arising out of or in connection with Seller's use of Buyer’s specification (ii) Seller’s storage/handling of any goods on behalf of Buyer (iii) any failure of Buyer to obtain licences and/or consents, or any subsequent revocation or non-renewal of any such licence and/or permit (iv) any failure by Buyer to ensure compliance with Applicable Law (v) any use of the goods by Buyer other than as envisaged under the contract; and (vi) any other default by Buyer.


Limitations to Liability

Seller shall not be liable for: (i) any delay in delivery of the goods; or (ii) any failure to deliver the goods,  caused by a Force Majeure Event or the Buyer's failure to provide Seller with adequate delivery instructions or other instructions relevant to the supply of the goods


if Seller fails to deliver the goods, its liability shall be limited to the costs and expenses incurred by Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the goods;
Seller’s total liability to Buyer in respect of a breach of warranty relating to Goods shall be limited to repair, replacement or refund.


Seller shall not be liable for: (i) any delay in performance of the Contract; or (ii) any failure to perform the Contract, that is caused by a Force Majeure event or any Buyer default;


Seller shall under no circumstances whatever be liable to Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with a contract; and Seller's total liability to Buyer and any third party in respect of all other losses arising under or in connection with a contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the specified value of such contract Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract both during its term and following termination.


Weights

Save as stated to the contrary in the contract, the Buyer is deemed to accept Seller’s declared weights and the Seller shall have no liability for any claim for short weight unless afforded reasonable opportunity or re-weighing by notification by fax or email of such short weight within twenty-four hours of delivery of the goods and a detailed written claim in respect of the short weight is made to the Seller within fourteen days of delivery.


Notice of Claims

Any claim against the Seller arising under this contract must be made in writing and delivered to the registered office of the Seller within fourteen days of delivery of the goods to the Buyer.  In the event of non-delivery of the goods, the Buyer shall notify the Seller of such non-delivery by fax or email within twenty-four hours of the date such delivery should have taken place, such fax or email to be confirmed in writing.


Force Majeure

Neither the Seller nor the Buyer shall be liable for any loss or damage caused by delay in the performance or non-performance of any of their respective obligations hereunder where the same is occasioned by any cause whatsoever that is beyond their respective control including, but not limited to Acts of God, war, riots, civil disturbance, requisitioning; fire, explosion, sabotage, storm, flood, earthquake, fog, subsidence, adverse climatic conditions, pestilence, or epidemics; governmental or parliamentary restrictions or regulations; non-availability or interruption or deviation in shipping or other transport; strikes, shortage of labour, lock-outs or trade disputes (whether involving their own employees or those of any person); collapse of structures, cessation or interruption of operation of any plant or process, failure of supply of raw material or components or other operating requirement; breakdown of machinery. 

Should any such event occur the Seller or the Buyer may suspend this contract without incurring any liability for any loss or damage thereby occasioned and the duration of such period of suspension shall be added to any delivery date or period herein specified, but the party affected by such cause shall give immediate notice to the other of such cause in writing.


The Seller shall be regarded as affected by such cause if such cause affects the producer of the goods and this occasions delay in the performance of the Seller’s obligations hereunder.


Upon the Buyer giving or receiving notice as above, pricing of unshipped goods so affected by the cause shall cease and shall not be resumed until the cause of such notice ceases to affect the performance of this contract.  Nothing contained in this paragraph shall release the Buyer from its obligations to price and pay for any goods already shipped or for which freight has been engaged for shipment prior to receipt of such notice by the Seller.


To the extent that any such cause affects the production or shipment of material to be supplied hereunder, the quantity to be supplied hereunder may be reduced rateably to the proportionate loss in production or shipments.


After termination of any such cause there shall be no obligation upon the Seller to make good to the Buyer any quantities of goods which the Seller has been unable to supply or which the Buyer has been unable to accept as a result of such cause provided that no reduction shall be made in quantities of goods previously priced.


In the event of the cause of suspension lasting more than three months the Seller shall upon written notice given to the Buyer, be entitled to treat the contract as terminated without liability to the Buyer at the date of such notice. 

Termination shall be without prejudice to the rights and obligations of the parties up to and including the date of such notice and shall not affect the Buyer’s obligation to accept, in due course, goods already priced.


Governing Law

This contract is governed by the laws of England and the English High Court of Justice, (to the jurisdiction of which the Buyer hereby irrevocably submits), shall have the exclusive jurisdiction to resolve any disputes arising out of it.