Terms of business
HMS Hanseatic Marine Services GmbH & Co. KG
Winsbergring 25, 22525 Hamburg, Germany
Phone: +49 40 85190-6800, Fax: +49 40 85190-6900
www.hms-services.com
Table of Contents
| 1 | Interpretation |
| 2 | Basis of Sale, Orders and Specifications |
| 3 | Export Goods |
| 4 | Empty containers and packaging |
| 5 | Price and Payment |
| 6 | Delivery |
| 7 | Risk & Title |
| 8 | Quality and Standard Warranty |
| 9 | Limitation of Liability |
| 10 | Insolvency of the Buyer |
| 11 | General |
1. Interpretation
1.1 In these Conditions the following words have the following meanings:
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“Buyer” |
the person firm or company who accepts a quotation from the Company for the sale of the Goods or whose order for goods is accepted by the Company |
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“Company” |
HMS Hanseatic Marine Services GmbH & Co. KG whose registered offices is at Winsbergring 25, 22525 Hamburg, Germany and which is registered at the commercial register of the Amtsgericht Hamburg |
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“Contract” |
Any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions |
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“Conditions” |
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 Company and the Buyer |
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“Goods” |
Any goods agreed in the Contract to be supplied to the Buyer by the Company (including any instalments or parts of them) |
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“Price List” |
The Company’s published price list as issued from time to time |
1.2 Any reference in these Conditions to any provision of a statute or Incoterms shall unless the context otherwise requires be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 Any reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates in that jurisdiction to the English legal term concerned.
1.4 Any reference to a gender includes the other genders and reference to the singular includes the plural and vice versa.
2. Basis of Sale, Orders and Specifications
2.1 Unless otherwise agreed by the Company in writing and signed on its behalf by a duly authorised officer of the Company, the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms and conditions which the Buyer purports to apply under any enquiry, order, acceptance, specification or other document).
2.2 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions and no order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.4 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a duly authorised officer of the Company. Nothing in this Condition will exclude or limit the Company’s liability for fraudulent misrepresentation.
2.5 Data, such as illustrations, drawings or specifications of weight, dimensions, performance or consumption, provided in connection with any offer or sales confirmation, shall be approximations only and not constitute a contractual specification unless expressly so stated in the Company’s written order confirmation.
2.6 Any information, such as drawings and other documentation, made available to the Buyer is to be treated as confidential information by the Buyer unless such information is already in the public domain or the Buyer can prove that such information was lawfully in the Buyer’s possession before receipt thereof and such information may be used by the Buyer only for the purposes of the Contract. It will not form part of this Contract and all rights in them shall at all times remain in the ownership of the Company.
2.7 No order which has been accepted by the Company may be cancelled by the Buyer except with the agreement in writing of the Company and upon terms of an indemnity of the Company 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 Company as a result of cancellation and work done to the date of cancellation.
2.8 The quantity, quality and description of and any specification for the Goods shall be as set out in the Company’s quotation. Any typographical, clerical or other error or omission in any sales literature, quotation, Price List, acknowledgement of order, invoice or other document issued by the Company is subject to correction by the Company without liability on the part of the Company.
2.9 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.10 The Company reserves the right to alter or change the specification, design or details of any Goods provided that these do not materially affect quality or performance and any such alteration or change will be notified in writing to the Buyer.
2.11 The Buyer warrants to be entitled, authorised or otherwise permitted by the customs authority or other authorities to deal with Goods free from tax, duty or other levies.
3 Export Goods
3.1 Goods designated for export from the European Union (“EU-export goods”) may only be purchased by Customers situated in third countries, by ships being entitled to do so according to section 27 of the German Customs Regulations dated 23rd December 1993 (Zollverordnung) or by the owner of bonded stores within section 98 and 166 EC-Regulation No. 2913/92 (Zollkodex).
3.2 The Buyer shall deal with the EU-export goods in accordance with EC-Regulation No. 3665/87 so that the relevant refunds will be paid to the Company. This includes in particular, but not exclusively, the obligation to observe the statutory time limits set for the export of the goods and to submit the necessary proof of export to the customs authority in due time.
3.3 The Buyer shall be liable for all damages resulting from a breach of the duties as mentioned in clause 3.1 and 3.2 of this Contract.
4 Empty containers and packaging
4.1 The Company shall choose the form of packaging which shall comply with the usual form of packaging at the place of delivery. The Buyer has to inform the Company within a reasonable time if it requires a special form of packaging. The Buyer is liable for any additional costs resulting from such special form of packaging.
4.2 Containers which can be returned, in particular Euro pallets, remain in the ownership of the Company. The Buyer has to return such containers to the Company in Hamburg all charges paid within four weeks of delivery. In case of a delay in returning the containers the Buyer shall be liable to the Company for the costs of hire of such containers at the usual hire rates in Hamburg. In case of loss of the containers the Buyer shall be liable to reimburse the Company in the amount of the current value of the containers.
4.3 According to §15 paragraph 1 page 1 of the Packaging Act (PackA) producers and initial distributors who bring transport, sales and outer packaging containing harmful substances, onto the market and which cannot be disposed of in regular household waste after use by private end users are required under §7 paragraph 5 of the PackA to ensure, according to system compatibility the free of charge collection, for reuse or recycling, of all related packaging materials as the principle of extended product responsibility applies.
Producers and initial distributors, but not private end users, in the supply chain, may make their own arrangements and come to deviating agreements as to the place and the cost of the collection.
The right to return any packaging as described in § 15 paragraph 1 page 1 of the PackA 1 to Chefs Culinar is excluded. Returns will only be accepted according to the deviating arrangements made between Chefs Culinar and their customers. Deviating arrangements will only apply for packaging received from Chefs Culinar in accordance with § 15 PackA.
5 Price and Payment
5.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quotation is no longer valid), the price listed in the Price List, net in Euro. Any quotation is valid for 30 days only unless previously withdrawn or unless otherwise agreed in writing.
5.2 The Company reserves the right to revise the price of Goods between the date of acceptance of the order and the proposed date of delivery to reflect any increase in cost to the Company due to any factors beyond its control such as any change in delivery dates, quantities or specifications for the Goods requested by the Buyer, delay caused by instructions of the Buyer or failure by the Buyer to give the Company adequate information or instructions prior to notification. The adjusted price will not exceed the Company’s prices generally applicable at the time.
5.3 The price of the Goods shall be for delivery ex works (EXW as per Incoterms) of the Company excluding all costs or charges in relation to loading, unloading, carriage, insurance. Where the Company agrees to deliver to a place different from its works the Buyer shall be liable for all costs in relation to packing, loading, unloading, carriage and insurance. All prices are exclusive of value added tax or other sales tax. The Buyer will pay for all additional amounts when it is due to pay for the Goods.
5.4 All taxes and other levies which are newly introduced or increased after the conclusion of the contract are to be borne by the Buyer.
5.5 Payment shall be due within 30 days of the invoice. Time of payment shall be of the essence. No payment shall be deemed to have been received until received in full in cleared funds.
5.6 Payment by Bills of Exchange and cheques will only be accepted after prior written agreement.
5.7 Where the Buyer is paying by instalments, the whole of the outstanding balance becomes due and payable immediately if any instalment is not paid on the due date or at a later date set by the Company, at its discretion, for the payment of the overdue instalment.
5.8 The Buyer shall make all payments without any deduction whether by way of set-off, deduction, counterclaim, discount (save as expressly mentioned in these Conditions) abatement or otherwise unless the Buyer has a final court order requiring an amount equal to such deduction to be paid by the Company to the Buyer and notwithstanding any other Conditions, all payments become due immediately upon termination of the Contract.
5.9 If the Buyer fails to pay the Company any sum due to the Company, the Company shall be entitled to:
- (a) cancel the Contract or suspend any further deliveries to the Buyer;
- (b) 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 Company) as the Company may think fit (notwithstanding any purported appropriation by the Buyer);
- (c) interest on such sum from the due date for payment at the annual rate of 5 % above the base lending rate from time to time of the European Central Bank, accruing on a daily basis until payment is made in full, whether before or after any judgment. The Company reserves the right to claim any damage caused by the delay; and
- (d) demand the immediate payment of all outstanding invoices.
6 Delivery
6.1 Unless agreed in the Company’s order confirmation, delivery of the Goods shall be effected ex works; in the event that the Company arranges transport and/or insurance of the Goods in transit, it shall invoice the Buyer therefore but the Company shall not assume any liabilities in respect of the selection of transport undertaking or insurer.
6.2 The Buyer will provide at its expense adequate and appropriate equipment and manual labour for loading the Goods at the place where the delivery is to take place.
6.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are specified, delivery will be within a reasonable time. Time of delivery shall not begin unless the Company has been provided with the documentation, authorisations, licences and releases to be supplied by the Buyer and before all necessary other prerequisites have been fulfilled and while any sums due payable by the Buyer to the Company remain outstanding. This Condition shall not be deemed to have been waived by the Company agreeing after its acceptance of an order to deliver by a specified date.
6.4 The Buyer will take delivery of the Goods immediately upon the Company giving it notice that the Goods are ready for delivery.
6.5 Subject to the other provisions of the Conditions, the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence) nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days.
6.6 If the Buyer fails to accept delivery of the Goods, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations then:
- (a) risk in the goods will pass to the Buyer as of the date the Goods are notified to the Buyer as ready for delivery and the Buyer shall insure accordingly;
- (b) the Goods will be deemed to have been delivered; and
- (i) the Company may store the Goods until actual delivery and the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance); or
- (ii) The Company may sell the Goods at the best price readily obtainable by it and (after deducting all storage, selling expenses and additional costs) 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.
6.7 Delivery by instalments shall be accepted by the Buyer. Each delivery or instalment of the Goods shall constitute a separate contract and failure by the Company 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.
6.8 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.9 The Company shall not be liable for late delivery of Goods if the Buyer accepts the delivery unless written notice of the delay is given to the Company within two weeks of the date after the Goods have been received.
6.10 The Company shall not be liable for any non-delivery of goods (even if caused by the Company’s negligence) unless written notice is given to the Company within one week of the date when the Goods would in the ordinary cause of events have been received.
6.11 In the event of any non-delivery or late delivery of Goods for which the Company is liable, the Buyer shall be entitled to liquidated damages calculated at the rate of 5 % of the contract price of the relevant Goods for every completed week by which the actual date of delivery (or deemed delivery) was delayed, provided, however, that the aggregate amount of liquidated damages shall not exceed 30 % of the contract price of the relevant Goods.
6.12 The Buyers' rights and entitlements arising out of any non-delivery or late delivery are exhaustively set out in clause 6.11 above and in no event shall the Company's liability exceed such amount as may be payable by way of liquidated damages pursuant to that clause.
6.13 If the Company delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by the Company the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
7 Risk & Title
7.1 Risk with respect to Goods shall pass to the Buyer in accordance with Incoterms condition EXW irrespective of whether only a part or parts of the Goods are delivered. The Buyer shall insure accordingly, for all potential losses including without limitation theft, breakage, transportation, fire and water damage.
7.2 Ownership of the Goods shall not pass to the Buyer until the Company has received payment of all sums due to it in respect of:
- (a) the Goods; and
- (b) all other sums which are or which become due to the Company from the Buyer on any account.
7.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
- (a) hold the Goods on a fiduciary basis as the Company’s bailee;
- (b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
- (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
- (d) maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the satisfaction of the Company, with the interest of the Company noted on the policy. On request the Buyer shall produce the policy of insurance to the Company; and
- (e) hold the proceeds of the insurance referred to in condition 7.3 (d) on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
7.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
- (a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value and the Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to the Company on behalf of the Company and the Buyer shall account to the Company accordingly; and
- (b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
7.5 The Company may at any time revoke the Buyer’s power of sale referred to in sub-Condition 7.4 above by written notice to the Buyer if the Buyer shall for 7 days or more be in default in the payment of any sum whatsoever due to the Company.
7.6 The Buyer’s right to possession of the Goods shall terminate immediately if:
- (a) (the Buyer being an individual) a bankruptcy order is made against the Buyer or the Buyer makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statute for the time being in force for the relief of insolvent debtors, or (the Buyer being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
- (b) the Buyer suffers or allows an execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
- (c) the Buyer encumbers pledges or in any way charges any of the Goods.
7.7 If the goods are mixed with or incorporated in other goods before the price is paid, the seller shall have ownership of the whole of the goods (or such portion representing the amount of his goods incorporated) until payment is made in full.
7.8 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
7.9 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises or vessel where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession and/or power of sale has terminated, to recover them and in either case the Buyer shall place the Goods at the disposal of the Company.
7.10 Where the laws of the country where the Goods or the vessel are situated do not recognise all or some of the clauses providing for the transfer of title in the Goods, the parties agree that the legal concepts coming closest to the agreed clauses shall apply in order to secure the rights of the Company. The same shall apply where a law of a country is applied to this contract which does not recognise all or some of the clauses providing for the transfer of title in the goods.
8 Quality and Standard Warranty
8.1 Any claim in respect of any defect in the quality or condition of the Goods or their failure to correspond with specification (whether or not delivery is refused by the Buyer) shall be notified to the Company within 3 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within 3 days after discovery of the defect or failure. In case of fresh or perishable Goods defects shall be notified within 24 hours after delivery.
8.2 If the Buyer does not notify the Company pursuant to these Conditions, the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.3 Where any valid claim in respect of any defect in the quality or condition of the Goods or their failure to meet specification or in respect of damage in transit is notified in ac-cordance with these Conditions, the Company shall at its sole discretion be entitled to:
- (a) replace the Goods (or the part in question) or repair the Goods free of charge; or
- (b) refund to the Buyer the price of the Goods (or a proportionate part of the price) and the Company shall have no further liability to the Buyer; or
- (c) issue a credit note at the pro rata Contract rate against any invoice raised for such Goods.
8.4 The liability of the Company under this Condition 8 does not extend to:
- (a) defects or deterioration of the Goods arising from fair wear and tear, wilful damage, negligence, inappropriate storage, abnormal working conditions, failure to follow the Company’s instructions, misuse, improper cleaning, alteration or repair of the Goods without the Company’s approval or attributable to the act or default of some person other than the Company and its employees, agents or sub-contractors; or
- (b) defects in Goods manufactured to the Buyer’s own specification or requirements if not approved by the Company
- (c) parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
8.5 The Company will collect and re-deliver without charge within the country in which the Goods have been delivered any Goods which are subject to repair or replacement pursuant to this Condition 8.
8.6 Any defective Goods shall be available for collection by the Company from a point within the country in which the Goods have been delivered. Goods from places outside the said country shall be returned to the Company carriage paid by the Buyer. After rectification re-delivery outside Germany will be at the expense of the Buyer.
8.7 In cases where repairs, which are not covered by this Condition 8, are undertaken charges in respect of labour, material and transport together with all appropriate VAT thereon will be made.
8.8 In the event that the Buyer wishes to return Goods shown in the current standard range of the Company, any agreement for such returns shall be in writing and at the sole discretion of the Company and shall be subject to the Company’s standard return charges. Transport in respect of such returns shall be at the cost of the Buyer.
8.9 Save in respect of Goods treated or manufactured as described in 8.4 (a) and (b) the Company shall at its option repair or replace Goods which, subject as hereinafter mentioned, prove defective in use within a period of 12 months following the date on which such Goods are delivered or deemed to be delivered. Such undertaking by the Company shall not apply where, in the reasonable opinion of the Company, the Goods have been improperly stored or used, where there has been a failure to follow instructions, or where there has been excessive wear or failure caused by faulty installation or any abnormal conditions. In circumstances where the Buyer is of the view that Goods should be repaired or replaced under this condition, the Buyer shall return the Goods in question to the Company carriage paid.
8.10 If the Company complies with the conditions of this Clause 8 it shall have no further liability for a breach of warranty in respect of such goods.
9 Limitation of Liability
9.1 Subject to Conditions 6 and 8 the following provisions set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any breach of these Conditions and any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence or for fraudulent misrepresentation.
9.4 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) and the Company shall not be liable to the Buyer or deemed to be in breach of Contract by reason of delay or any failure to perform if the Company is prevented from or delayed in performing due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to its workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
9.5 The Company will not be liable if payment for the total price of the Goods has not been received by the Company in full in cleared funds by the due date.
9.6 Subject to Conditions 9.2 and 9.3:
- (a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price for the Goods and
- (b) the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
9.7 Any claim the Buyer may bring against the Company for breach of contract must be commenced within two years of the cause of action arising and the parties agree that the statutory limitation period is so shortened.
10 Insolvency of the Buyer
10.1 The Company shall be entitled either to terminate wholly or in part any or every Contract or to suspend work and/or delivery of Goods under any or every Contract in any of the following events without any liability to the Buyer:
- (a) if any debt is due and payable by the Buyer to the Company but is unpaid;
- (b) the Buyer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
- (c) an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
- (d) the Buyer ceases, or threatens to cease, to carry on business;
10.2 The Company shall be entitled to exercise its rights of termination or suspension at any time during which the event or default giving rise thereto has not ceased or been remedied and in the event of any such suspension the Company shall be entitled as a condition of resuming work or delivery under any contract between it and the Buyer to require pre-payment of or such security as it may require for the payment of the price of any further work or delivery.
11 General
11.1 All communications between the parties about the Contract must be in writing in English or German language and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission (in case of communications to the Company) to such address as shall be notified to the Buyer by the Company as its trading address on the stationery of the Company or (in the case of the communications to the Buyer) to the registered office of the Buyer (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer in writing.
11.2 Communications shall be deemed to have been received if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays in Hamburg, Germany) after posting (exclusive of the day of posting), if delivered by hand on the day of delivery and if sent by facsimile transmission on a working day prior to 5.00 pm, at the time of transmission and otherwise on the next working day.
11.3 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
11.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract and any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
11.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions shall continue in full force and effect.
11.6 The Contract and any documents referred to in it constitute the entire agreement between the parties with regard to the subject matter of the Contract.
11.7 The Buyer may not without the prior written consent of the Company assign the benefit of any Contract or any part of it to any person, firm or company.
11.8 A person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. Any rescission variation amendment or waiver to or of the Contract shall not require the consent or approval of any person who is not a party to the Contract.
11.9 These Conditions and the Contract shall be subject to and construed in accordance with Law of England and Wales. The provisions of The United Nations Convention on Contracts for the International Sale of goods shall not apply.
11.10 The parties to the Contract irrevocably agree that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any claim or matter arising under or in connection with this Contract or the legal relationships established by this Contract and that accordingly any proceedings in respect of any such claim or matter may be brought in such courts. Nothing in this clause shall limit the right of the Company to take proceedings against the Buyer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
11.11 The Buyer will irrevocably appoint an agent to receive on its behalf in England or Wales service of any proceedings arising out of or in connection with this Contract. Such service shall be deemed completed on delivery to such agent (whether or not it is forwarded to and received by the Buyer). If for any reason such agent ceases to be able to act as agent or no longer has an address in England or Wales, the Buyer shall forthwith appoint a substitute acceptable to the Company and deliver to the Company the new agent’s name, address and fax number.
HMS Far East Pte Ltd
12 Tuas Road, Singapore 638486, Singapore
Phone: +65 6276 7890, Fax: +65 6265 1365
www.hmsfareast.com
Table of Contents
| 1 | Interpretation |
| 2 | Quotation and Conclusion of Contract |
| 3 | Documents and Specifications |
| 4 | Dates and Conditions of Delivery |
| 5 | Prices/Packaging |
| 6 | Payments |
| 7 | Retention of Title |
| 8 | Warranty |
| 9 | Liability |
| 10 | Miscellaneous Clauses |
These General Terms and Conditions ("Conditions") form an integral part of all the Company's quotations and contracts relating to deliveries and services to the Customer named in the quotations and/or contracts. These Conditions are deemed as having been accepted by the Customer upon Customers' acceptance of the Company's offer, upon the Customer's taking delivery of the goods or acceptance of the services provided, or at the latest upon payment.
1 Interpretation
1 .1 "Company" means HMS Far Fast Pte Ltd.
1.2 "Contract" means the agreement entered into between the Company and the Customer upon acceptance by the Company of the Customer's order on the terms and conditions stated in the Quotation and shall incorporate and be subject to, these Conditions.
1.3 "Customer" means the person or entity making an Order and entering into a Contract with the Company
1.4 "Goods" and "Services" mean such goods and services referred to in the Quotation and/or Contract.
1.5 "Order" means the order made by the Customer to the Company.
1.6 "Parties" means the Company and the Customer.
1.7 "Quotation" means a written proposal from the Company containing details of the Goods and/or Services to be supplied to the Customer.
1.8 A reference to the singular shall include the plural.
2 Quotation and Conclusion of Contract
2.1 The Quotation shall not be binding until and unless a Contract is entered into by the parties.
2.2 Only those Goods and Services expressly mentioned in the Quotation are offered.
2.3 The Company reserves the right to correct any typographical or clerical errors or omissions, in any offer, delivery order, invoice or other document or information in regard to the Contract and issued by the Company without any liability on the side of the Company.
2.4 Contracts do not come into force and effect until the Company has accepted orders received or confirmed acceptance declarations received or has supplied the Goods or performed the Services ordered by the Customer, whichever is earlier.
2.5 No variation to the Contract and/or these Conditions shall be binding unless agreed in writing between the Company and the Customer.
2.6 These Conditions and the terms stated in the Quotation, the Company's written acknowledgement of the Order and the Company's delivery order shall govern the Contract to the exclusion of any other term, and conditions contained or referred to in any documentation submitted by the Customer or in correspondence or elsewhere or implied by trade custom practice or course of dealing. Where reference is made to Incoterms, "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force of the date of the Contract.
2.7 As regards transit operations the Customer shall ensure that it is licensed, authorised or otherwise permitted by the customs or other relevant authority to deal with the Goods free from tax, duty or other encumbrance.
3 Documents and Specifications
3.1 All documentation made available to the Customer contains only approximate figures as may be customary in the industry, except insofar as expressly stated otherwise in the relevant Contract. The Company reserves the right to modify the documentation, data and the Goods. This also applies to alterations to the construction and form of the Goods, insofar as they are not fundamental changes and insofar as it is reasonable to expect the Customer to accept such alterations.
3.2 Details supplied, quality standards or other specifications or features of the Goods and/or Services described in drawings or other documents are only binding and guaranteed if being expressly confirmed as guaranteed in writing by the Company. Samples are deemed to be representative samples reflecting the approximate get-up of the Goods and shall not form part of the Contract.
3.3 The Company retain title and copyright to all the Company's drawings and other documentation provided to the Customer. They are to be returned to the Company immediately upon demand. These drawings and other documentation are to be treated as confidential and may not be used in any other way without the Company's approval. In particular, they must not be divulged, duplicated or made available in any form by the Customer to third parties.
4 Dates and Conditions of Delivery
4.1 Company will use commercially reasonable efforts to meet the delivery date stated in the Contract; provided, however, that delivery dates specified in the Contract or confirmations are approximations only, and Company shall not be liable for any loss or damage caused by delivery delays howsoever caused.
4.2 Delivery, periods begin with the date of the Company's written declaration of acceptance or confirmation but not, however, before the Company has been provided with the documentation, authorisations and releases to be supplied by the Customer, before all other necessary prerequisites have been fulfilled and before the Company have received all payments due. The parties may by written agreement extend the delivery periods and dates accordingly.
4.3 The Customer must in every case take delivery of the Goods or accept the Services immediately upon being requested to do so by the Company.
4.4 If the delivery is delayed at the request of the Customer or the Customer refuses to take delivery of the Goods or accept the Services at the time stated for delivery, the Company shall be entitled, after three (3) days of such request or refusal (unless otherwise agreed between the parties), to refuse to fulfil the Contract, to dispose the Goods elsewhere and to demand compensation for non-fulfilment which at the Company's discretion shall be either the reimbursement of the real loss incurred or, without proof of loss, ten per cent (10%) of the agreed price, irrespective of this, the Customer will be charged with the costs for the additional storage, beginning one (1) month after the Company's notice stating the readiness for dispatch/delivery of the Goods or provision of the Services to the Customer.
4.5 The Company shall not be liable or be deemed to be in breach of Contract for any unforeseeable or other force majeure occurrences beyond the Company's control (regardless of whether they affect the Company),such as war, industrial disputes, acts of government or sovereign power, strikes, lock-outs, and disruptions to transport services, which occurrences shall release the Company from its obligations under the Contract and these Conditions for the duration of the occurrence. Company may make delivery on an equitable basis with reference to all of its customers, in accordance with its best judgment of customers' needs. If such occurrences shall persist for more than one (1) month or, if in the Company's opinion, renders its performance impossible, the Company may terminate the Contract without any liability.
4.6 Where for reasons not attributable to the Company's negligence the Company's supplier does not deliver to the Company or does not deliver in time to allow the Company to fulfil the Company's delivery/service obligation in due time, the Company has the right to withdraw from the Contract without sanctions as regards Goods which cannot be delivered and/or Services which cannot be provided.
4.7 Partial deliveries and partial performances are allowed.
4.8 Delivery shall be executed ex works Singapore unless otherwise agreed. Even if the Company agrees to deliver the Goods alongside (meaning to the point of the quay nearest to the ship where the trucks can be unloaded), the Customer shall be solely responsible for loading the Goods on board the ship using his own personnel and at his own risk.
4.9 Risk of accidental damage to or loss of the Goods shall pass to the Customer when the Goods are handed over to the carrier or are loaded onto the Company's assigned means of transport, or at the latest, upon such transport leaving the factory or warehouse. In case the Goods are ready for dispatch but the dispatch or taking of delivery is delayed by no fault of the Company, or in case of Goods to be delivered at the Company's premises (ex works), risk of accidental loss or damage shall pass to the Customer when he has been notified of the readiness of the goods for collection.
5 Prices/Packaging
5.1 Except as otherwise stated in the Company's quotations or price lists in writing the Company's prices are quoted net in Singapore Dollars on an ex works basis. Where the Company agrees to deliver the Goods otherwise than at the Company's premises, the Customer shall be liable to pay the Company's charges for packaging, insurance and transport. The prices are exclusive of any applicable goods and services tax which the Customer shall be additionally liable to pay. The costs of loading the Goods on board the ship are to be borne and paid for by the Customer.
5.2 Import taxes and other government charges which are newly introduced or increased by the authorities after the date of conclusion of the Contract are payable by the Customer.
5.3 In the event that there are increases in costs during the period between conclusion of the Contract and its performance, the Company is entitled, at the Company's own discretion, to demand an appropriately adjusted price which does not exceed the Company's prices generally applicable at the time of performance of the Contract.
5.4 The choice of packing remains the Company's and should correspond with the usual form at the place of handover. If the Customer wishes a special form of packing, the Customer must inform the Company in good time. Additional packing costs arising as a result of the Customer's special wishes will be charged separately.
5.5 Returnable containers remain in the Company's ownership. They are to be returned to the Company in Singapore all charges paid within thirty (30) days. In the event of failure to meet this deadline, the Customer will be liable for payment of a rental according to the customary hire rates in Singapore. In the event of the loss of returnable containers, the Customer will be liable for reimbursement of the current value.
6 Payments
6.1 Except where otherwise agreed, all invoices shall be paid by the Customer within thirty (30) days after delivery or date of the invoice, whichever is earlier.
6.2 Bills of exchange and cheques will be accepted only with prior agreement and subject to their discountability. All discount charges will be charged to the Customer and are to be refunded to the Company immediately. Amounts paid by bills of exchange or cheques will only be credited if the equivalent value including ancillary costs is at the Company's unconditional disposal.
6.3 If circumstances become known to the Company after conclusion of the Contract which give the Company serious doubts as to the Customer's solvency or creditworthiness (e.g. delay in payment. failure to honour bills of exchange or cheques at the due date), the Company shall be entitled to withhold delivery of Goods and performance of the Services until the Customer has fulfilled all his contractual payment obligations in advance as well as all other outstanding claims (including those arising of any other transactions within a running business relationship) or has provided security satisfactory to the Company.
6.4 If the Customer fails to comply with the terms of payment, the Company shall be entitled to charge interest on the outstanding amount at the rate of 1% per month, without prior notice or demand. The Company reserves the right to claim any additional damage caused by the delay. If payment by instalments has been agreed and an instalment is delayed, the whole sum outstanding becomes immediately due and payable.
6.5 The Customer is not entitled to set-off any counterclaim or retain any payment unless his claim or right to retain payment, as the case may be, has been expressly accepted by the Company or has been established as final and absolute by a Singapore Count. Moreover, the Customer is not entitled to exercise any rights of retention of payment against the Company's claims on the basis of any counterclaim arising out of transactions and contracts other than the Company's claims.
7 Retention of Title
7.1 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Contract, the property in the Goods shall not pass to the Customer until the Company has received payment in full of the price of the Goods and all other goods agreed to be sold by the Company to the Customer for which payment is then due.
7.2 The Company shall have absolute authority to re-possess, re-sell or otherwise deal with or dispose of all or any parts of the Goods in which title remains vested in the Company without notice to the Customer and to recover from the Customer any loss occasioned by the Customer's default. The rights conferred on the Company in this Clause shall not prejudice any other right it may have under the Contract or any common law or statutory remedy which the Company may have. Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Company's fiduciary agent, and shall keep the Goods properly stored, protected and insured without charge to the Company.
7.3 During the period referred to in Clause 7.2,
(i) the Customer shall be entitled to re-sell the Goods in the ordinary course of its business but only for the account of the Company, but shall account to the Company for the proceeds of sale or otherwise of the Goods including insurance proceeds, and shall keep all such proceeds separate from any money or properties of the Customer and third parties.
(ii) if the Goods are processed or modified by the Customer and if processing or modification is done with the Goods such that the Company ceases to have property or title therein, the Company shall become coowner of the goods. The same shall apply if the Company's Goods arc completely reshaped and mixed with other goods.
(iii) if third parties shall take steps to pledge or otherwise dispose of the Goods, the Customer shall immediately notify the Company. If the Customer fails to do so in due time, he will be held liable for any damages caused.
7.4 The Company shall on demand of the Customer release any part of those Goods in respect of which title had been retained, if the value of all Goods held in favour of the Company exceeds the value of the claims being secured. It shall be in the Company's sole discretion as to which of the Goods or which parts of the Goods will be released.
7.5 If the laws of the country where the Goods or the ships with the Goods are situated do not provide for the retention of title, the parties agree that the legal concept coming closest to it shall govern the rights in rem to secure the Company's claims. The same shall apply if the laws of another country will be applied which does not provide for the retention of title.
8 Warranty
8.1 Subject to the conditions set out below the Company warrants that the Goods will be free from defects in material and workmanship at the time of delivery or the date on which the Company notifies the Customer that the Goods are ready for delivery ("Delivery Date"), whichever is earlier.
8.2 The above warranty is given by the Company subject to the following conditions:
a) Company shall be under no liability whatsoever in respect of any defect in the Goods arising more than 6 months from the Delivery Date. The above warranty does not extend to Goods not manufactured by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturere to the Company.
b) Company shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal storage conditions, failure to comply with Company's instructions (whether oral or in writing) misuse or alteration of the Goods.
8.3 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 Unfair Contract Terms Act), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. In particular, the Company makes no warranty that the Goods are suitable for any particular purpose.
8.4 Any claim by the Customer which is based on any defect of the Goods or their failure to correspond with specifications shall (whether or not delivery is refused by the Customer) be notified to the Company within 3 days from the Delivery Date or where the defect was not apparent on reasonable inspection within 30 days from the Delivery Date. In the case of perishable goods, defects must be notified within twenty-four (24) hours from Delivery Date. If delivery is not refused and Customer does not notify the Company accordingly, Customer shall not be entitled to reject the Goods and Company shall have no liability for such defect or failure.
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 a specification is notified to the Company in accordance with clause 8.4 above, Company shall be entitled at its sole discretion either to repair or to replace the Goods. The Customer's sole remedy against the Company for such defect, deficiency or discrepancy in the Goods shall be the repair or replacement of such Goods. The Customer shall not be entitled to rescind the Contract and shall not be entitled to a reduction in the price of the Goods unless the Company is neither ready nor able to repair or replace the Goods notwithstanding a written request from the Customer giving the Company a reasonable period of time for doing so. Notwithstanding the foregoing, rescission of the Contract may only be effected in respect of defective Goods.
8.6 The Company is obliged to repair the Goods or supply replacements only after the Customer having paid an appropriate proportion of the Company's accounts due. Replaced parts and materials, once removed from the Goods, become the Company's property.
9 Liability
9.1 The Company shall have no liability whatsoever and howsoever arising for any indirect, special or consequential damages (including but not limited to lost profits) incurred or that may be incurred by the Customer or any third party, even if it has been advised of the possibility of such damages, regardless whether such damages arise out of breach of contract or warranty, tort (including negligence), product liability, indemnity, strict liability or any other legal theory whatsoever.
9.2 In the event that the Company shall be held liable for whatever reason or nature (including but not limited to direct damages), the Company's total liability hereunder shall not in any event exceed the price paid by the Customer under the relevant Contract regardless whether such liability arises out of breach of contract or warranty, tort (including negligence), product liability, indemnity, strict liability or any other legal theory whatsoever.
10 Miscellaneous Clauses
10.1 The Customer is not entitled to assign the Contract or any claims thereunder against the Company to third parties without the Company's prior written approval.
10.2 The Company reserves the right to subcontract the production or procurement 'of any Goods or Services or any portion thereof.
10.3 Should any of the provisions of these Conditions or of the Contract be held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions or the remainder of the provision in question shall not be effected.
10.4 These Conditions shall apply to and be incorporated into the Contract from the date of the Contract and shall replace any previous Conditions.
10.5 If there is any conflict between these Conditions and any express terms of a Contract, the terms of the Contract shall take precedence.
10.6 The Customer's general terms and conditions of business, insofar as they conflict with these Conditions or the relevant Contract, have no application, effect or validity.
10.7 Any amendment to these Conditions requires a written agreement by the parties.
10.8 These Conditions and any express terms of the Contract shall constitute the entire agreement between the parties and there are no other representations, agreements, warranties, conditions, or obligations, express or implied, relating to the subject matter of the Contract.
10.9 No waiver by the Company of any provision in these Conditions or of any breach of the Contract shall be considered to be a waiver of any subsequent breach of the same or any other provision.
10.10 In transactions with the Customers the exclusive place of jurisdiction for both parties for all disputes arising directly or indirectly out of the contractual relationship (including those arising out of documents, bills of exchange and cheques) shall be Singapore. However, the Company shall be entitled, at its discretion, to raise claims against the Customer or the ship before the court in the jurisdiction of the Customer's residence or principal place of business, or where the Customer's assets or the ship for which the Company undertook supplies may be found.
10.11 The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable to the Contract.
10.12 Unless otherwise agreed to in the Contract, any question concerning the construction, meaning or effect of these Conditions, or any dispute concerning the rights and liabilities of the parties under the Contract, without prejudice to Company's rights under Clause 10.10, shall be governed by Singapore law.
10.13 No person who is not a party to the Contract (including any employee, officer, agent, representative or sub¬contractor of either party) shall have any right under the Contracts (Rights of Third Parties) Act (Cap.53B) to enforce any terms of the Contract without express prior agreement in writing of the parties.