1. General
1.1 These terms and conditions (“Conditions”) (together with the commercial terms set out in the document to which these Conditions are appended (the “Sales Contract”) (together the “Contract”)) are the only terms upon which Keeling & Walker Ltd (the “Seller”) is prepared to deal with the recipient set out in the Sales Contract (the “Buyer”) in respect of the goods set out in the Sales Contract (the “Goods”) and they shall govern the sale and purchase of the Goods to the entire exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions, To the extent that there is any inconsistency between the Sales Contract and the Conditions, the Sales Contract shall prevail.
1.2 These Conditions may only be modified by a variation expressed in writing (which shall include faxes and e-mails), by the Seller, and no other action on the part of the Seller (whether delivery of the Goods or otherwise) shall be construed as an acceptance of any other conditions or of any modification hereto.
1.3 These Conditions as modified in accordance with Condition1.2 above and together with the terms of the Sales Contract, embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications relating to its subject matter.
1.4 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 shall constitute an offer by the Buyer to purchase goods in accordance with these Conditions and shall require the Seller’s written acceptance, in the form of the Sales Contract, before any contract arises. The Contract shall come into existence upon the Seller’s written acceptance of the same in accordance with this Condition 1.4. The Buyer is responsible for ensuring that all information provided by it to the Seller is complete and accurate.
2. Price and Payment
2.1 The Buyer shall pay the price for the Goods set out and in the manner specified in the Sales Contract, and prices quoted shall be ‘Ex Works’ (as such term is defined in the Incoterms® Rules 2010) (“EXW”) unless stated to the contrary in the Sales Contract. The Seller may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to any factor beyond the Seller’s control, any request by the Buyer to change the delivery date, quantities or types of the Goods ordered or any delay caused by any instructions of the Buyer or by failure of the Buyer to give the Seller adequate or accurate information or instructions.
2.2 Where the Seller quotes a ‘Costs, Insurance and Freight’ (as such term is defined in the Incoterms® Rules 2010) (“CIF”) price, 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.
2.3 The Seller may invoice the Buyer for the price of the Goods, determined in accordance with Condition 2.1 above, on or at any time after the completion of delivery and the Buyer shall pay such invoice in full and in cleared funds in accordance with the payment terms set out in the Sales Contract (and if no such payment terms are set out in the Sales Contract then payment terms of thirty (30) days shall apply to the Contract). 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 shall accrue each day on the overdue sum from the due date until the date of payment, whether before or after judgment, at an annual rate of 4% above the Bank of England’s base rate from time to time applicable, but at 4% a year for any period when that base rate is below 0%. Time for payment shall be of the essence of the Contract.
2.4 Where any sum owed by the Buyer to the Seller under the Contract 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 in its discretion: (1) withhold any deliveries of Goods until arrangements as to payment or credit have been established which are satisfactory to the Seller; or (2) 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.
2.5 The Buyer agrees that the Seller may set off all amounts that are due or become due from the Seller to the Buyer against all amounts that are due or become due from the Buyer to the Seller under the Contract and between each and every contract between the parties.
3 Risk and Title
3.1 The risk in the Goods shall pass to the Buyer on completion of delivery at the location specified in the Sale Contract or, in the case of an EXW contract, upon collection of the Goods by the Buyer at such location as may be advised by the Seller (in each case, the “Delivery Location”). Delivery is completed on the completion of unloading of the Goods at the Delivery Location or, in the case of an EXW contract, upon loading of the Goods at the Delivery Location.
3.2 Title to the Goods shall not pass to the Buyer until the earlier of: (1) the Seller receiving payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and (2) the Buyer reselling the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in Condition 3.3.
3.3 The Buyer may resell or use the Goods in the ordinary course of business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time: (1) it does so as principal and not as the Seller’s agent; and (2) title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
3.4 If, before title to the Goods passes to the Buyer pursuant to Condition 3.3 above, the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy, then, without limiting any other right or remedy the Seller may have: (1) the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and (2) the Seller may at any time: (i) require the Buyer to deliver up all Goods in its possession that have not been resold or irrevocably incorporated into another product; and (ii) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
4 Shipment and Storage
4.1 The Seller reserves the right to amend the specification of the Goods at any time prior to delivery if required by any applicable statutory or regulatory requirements.
4.2 Any dates agreed for delivery, (or if an EXW contract, the date(s) of availability for collection), are the best estimate of such date and time for delivery shall not be of the essence, but the Seller reserves the right to alter the same without notice. The Seller shall not be liable for any delay in delivery (or, if an EXW Contract, date of availability for collection) that is caused by the Buyer’s failure to provide adequate delivery instructions or other instructions that are relevant to the supply of the Goods.
4.3 The Goods may be shipped in one or more instalments, which shall be invoiced and paid for separately if so requested by the Seller. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
4.4 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 (including insurance) in the following cases until delivery takes place: (1) where the Seller is ready to despatch the Goods 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 at the agreed time for delivery; (2) where 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; (3) in an EXW contract where the Buyer fails to collect the Goods when they are ready for collection; (4) in a ‘Free on Board’ (as such term is defined in the Incoterms® Rules 2010) contract where the Buyer fails to nominate a ship to the Seller; or (5) where the Seller suspends delivery of the Goods pursuant to Condition 2.4.
4.5 Where the Seller stores any Goods in accordance with Condition 4.4 above, if the Buyer has not taken or accepted (as the case may be) actual delivery of the relevant Goods by the [fourteenth (14th)] day following the delivery date agreed pursuant to the Contract, the Seller may resell or otherwise dispose of part or all of the Goods.
5. Insurance
Where shipments under the Contract are made CIF the Goods are insured under ‘Institute Commodities Clauses’. In the event of loss of, or damage to, the Goods after shipment under the Contract but prior to actual arrival at the discharge port and payment therefor the Buyer will make payment against the documents representing the Goods in accordance with the payment clause therein (and if no such payment clause is stated then payment shall be in accordance with the Seller’s standard payment terms set out in Condition 2.3 above), and in the event of the carrying vessel being lost such payment shall be made immediately once loss of the carrying vessel is established.
6. Limitations, Exclusions and Warranties
6.1 Nothing in these Conditions shall limit or exclude either party’s liability for: (1) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (2) fraud or fraudulent misrepresentation; (3) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (4) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.