1. SCOPE – COMPLETE AGREEMENT
These general conditions of sale (hereinafter referred to as “General Conditions”) shall apply to the products and associated products, accessories or services (“Goods”) that are sold by SEVEN SEAS (“Seller”) to its clients (“Buyer”). These General Conditions, together with Seller’s specific conditions contained herein and only such other documents, as are specifically incorporated herein by reference, constitute the entire agreement between Buyer and Seller, and supersede, in their entirety, any other conflicting terms subject to different terms being expressly agreed locally. In particular no additions to or variations from the terms hereof shall be binding upon Seller unless expressly agreed in writing by Seller. General Conditions entered into by brokers, agencies or any other representative on behalf of Seller will only be binding on Seller upon written confirmation by Seller.
Seller’s failure to exercise any right shall not be deemed to be waiver of such right. If any of General Conditions or part thereof shall be determined to be void, unforeseeable or illegal in whole or contained in part, such determination shall not affect the validity of the other terms and conditions herein.
In the event that any one or more of the provisions of these General Conditions may be invalid or unenforceable in any jurisdiction, these General Conditions shall be deemed automatically amended to omit such provisions and the remaining provisions herein shall remain fully valid and in force as is.
2. PRICES AND PAYMENT
Prices are net cash, net of taxes and charges for transportation, insurance, shipping, storage, handling, demurrage and similar items, unless specified otherwise in writing. In any event that the supply of Goods is entitled to VAT exemption, Seller shall only be bound to apply for a VAT exemption if Client provides it with substantial proof such VAT exemption. Payment shall be made by Buyer or the Vessel (’Vessel’’ means the Vessel, Ship, Barge, On- or Off Shore Facility that receives the supply, either as end user or as transfer unit to third party) as directed by Seller within the time stipulated and agreed as per written confirmation or as stated in the invoice(s) issued. Payment shall, unless otherwise agreed in writing, be made in the currency stated on the invoice(s), and all payments to be made free of bank charges or other costs into Seller’s nominated bank account. Payment shall be made in full, without set-off, counterclaim, deduction and/or discount (unless agreed in writing prior to payment being made).
Payments not made by the due date shall entitle Seller to charge, and shall bind Buyer to pay, legal interest for late payment without prejudice to any other rights or remedies available to Seller. All costs borne by Seller in connection with the collection of overdue payments, including interest charges, whether made in or out of court and in general all costs incurred in connection with breach of these General Conditions by Buyer, shall be for Buyer’s sole account. Notwithstanding anything to the contrary, payment will be due immediately in case of bankruptcy, insolvency, moratorium, reorganization and other similar laws and Seller shall have the right to cancel the contract or retain that portion of the contract which it has not yet performed without Client’s consent. Seller reserves the right to set off Client’s debts and or use payments for the settlements of the invoices which have been outstanding longer than 30 days plus any interest on arrears and costs accrued thereon.
3. SPECIFICATIONS – QUALITY/QUANTITY
The quality and quantity of an order shall be agreed between Seller and Buyer and confirmed by Seller in writing. It is Buyer’s sole responsibility to address eventual variances from their forwarded orders, should Seller’s order confirmation not reflect Buyer’s expectation. Should, for whatever reason, the quantity ordered not be available at time of supply Seller shall be responsible for the difference, but shall have the right to deliver the remainder as soon as such quantity is available for delivery at a convenient port/place in Seller’s reasonable discretion.
The Vessel’s Master, Chief Officer or Chief Engineer, or any other officer and/or crew member as appointed and nominated by any of the said officers, shall upon receipt ensure that the delivered quantity and quality is in accordance with the accompanying delivery notes issued by Seller. Any eventual differences in quantity and/or or differences in quantity or agreed quality shall be notified immediately in writing to Seller or its local representative. Should, for any reason whatsoever, such delivery site verification not be made by the Vessel, the figures and qualities as stated on Seller’s delivery notes shall be deemed correct and Goods undamaged and accepted by Buyer/Vessel.
All delivery times quoted by Seller shall be deemed approximate delivery times only unless otherwise explicitly agreed in writing. In all cases Buyer or the Vessel must give not less than 72 hours’ notice of approximate delivery time, followed by 48 and 24 hours’ notice, where last notice must be final and exact. Such notices shall be given to Seller or Seller’s agents or representatives. Seller shall have the option to deliver in one or more lot(s), in which case each lot delivered shall be construed as a separate agreement with separate delivery notices.
Seller shall not be required to deliver any Goods for the export of which any government permits are required and have not been obtained. Should Seller unknowingly deliver Goods that later determines is subject to permit requirements, such Goods shall be deemed obtained by and for Buyer’s account and risk. Seller shall not be deemed the exporter of any Goods and Buyer shall indemnify Seller from all responsibility, loss or costs thereof. Seller shal deliver the Goods in accordance with the agreed Incoterms.
If storage is arranged then Buyer and/or the Vessel shall be fully responsible for any loss of or deterioration in quality and quantity of Goods arising between the time of delivery and completion of storage time.
Transport from storage to the Vessel shall be arranged by and for the risk and account of Buyer and/or the Vessel. If delivery is required outside normal local working hours or working days then expenses incidental to such delivery shall be reimbursed by Buyer as additional costs. Any taxes, dues, quay dues or charges related to Goods, if so charged, to be paid by Buyers unless otherwise agreed in writing prior to the delivery. Seller, Seller’s representative, driver and any person representing Seller shall in no case whatsoever be held responsible for any delay or damage to the receiving Vessel. Should the receiving Vessel for whatever reason not be able to receive or to arrange unloading of Seller’s truck immediately, and no storage facility has been arranged by Buyer, causing Seller’s truck to standby, then Buyer shall reimburse Seller a reasonable demurrage covering all costs including wages, fuel consumed, eventual accommodation, etc.
If deliveries are made offshore by barge or other vehicle then all costs for the barging equipment as well as loading costs, unloading costs, etc, unless otherwise agreed in writing shall be for the account and risk of Buyer. All risks insurance for such barge/vehicle transport shall be made by and for the account of Buyer, including risk for Goods carried on deck. Any damage to and/or loss of Goods in whole or in part after risk and title pass shall be for Buyer’s account and to be settled directly between the barge operator and Buyer.
5 TITLE AND CLAIMS
Supplied Goods shall remain Seller’s property until fulfilment by Buyer of its payment obligations. In case of breach of these General Conditions by Buyer, Seller is entitled to take back and remove Goods delivered or other it Seven Seas and/or articles belonging to the Vessel and/or Owners and/or Operators/Charterers without prior juridical action and without prejudice to all other rights or remedies available to Seller. Should Seller not be able to exercise this right, Seller shall have the right to arrest the Vessel and/or sister vessels and/or any other assets of Buyer wherever situated in the world without prior notice to the extent permitted by law, including vessels on Time-, Voyage- or Bareboat Charter to Buyer.
Buyer agreed that all supplies made by Seller under these General Conditions shall be entitled to the full protection of maritime liens available in any port in the world where the Vessel may be found. By taking delivery of Goods and signing the delivery note(s) accompanying Goods, whether signed by Buyer or any representative such as Master, Officer, Crew Member, Agent or other Representative of Buyer, Buyer shall be deemed to have examined and accepted Goods in every respect, including quantity and quality. Buyer may however be entitled to the Goods reimbursement or replacement if Buyer, within 30 calendar days from offloading, proves that whilst still in custody of Seller Goods have been handled, treated and stored in a manner that causes damage to or deterioration of Goods.
Proof must be accompanied by a statement of a representative of International Ship Suppliers’ Association (I.S.S.A.), or, if such not available at the actual place, by another independent third party report acceptable to the Seller; any of these or both to be arranged by Buyer. No complaint or claim of whatever nature given by Buyer or Vessel or any representative of Buyer/Vessel after 30 days from offloading will be considered by Seller.
In any event Seller shall not be liable for any loss of revenue and/or any other consequential or special loss or damage directly or indirectly sustained by Buyer or by any other person whatsoever. Seller can only be held liable for damages caused by its gross negligence or wilful misconduct duly proved by Buyer, and Seller’s liability will in any event be limited to 100% of the invoiced value of the defective or damaged Goods. All claims or complaints must be in writing, and only written complaints or claims received within the time limit will be considered.
6 FORCE MAJEURE
If Seller is unable to make timely delivery caused by Force Majeure, which shall include any and all circumstances for which Seller has no reasonable control, including but not limited to weather, strikes or lock outs, unavailability from manufacturers, etc, and as a consequence it is not reasonably possible to make delivery in good time or timely, then Seller’s obligation to supply and deliver shall cease or be suspended for the duration of such Force Majeure. Should an event of Force Majeure cause Buyer, the Vessel or any of their representatives to order Seller to deliver at an alternative place or port, then extra costs arising as a consequence thereof (including waiting time and extra transport costs) shall be borne by Buyer.
7 LAW AND ARBITRATION
These General Conditions and all disputes and claims arising out of or in connection with its subject matter are governed by and construed in accordance with the laws of England and Wales. The parties shall use their best endeavours to settle amicably any differences that arise. All disputes arising out of or in connection with these General Conditions shall be finally settled by arbitration in accordance with the DIAC Rules of Arbitration by one arbitrator appointed in accordance with the said DIAC Rules. The seat of the arbitration shall be Dubai, United Arab Emirates, and the language of the proceedings shall be English.
8 VALIDITY DATE
These General Conditions shall be in force and valid for all offers, quotations, prices and supplies given and made by SEVEN SEAS with effect from 00.00 hours GMT on 14 march 2016.
Please also see Terms & Conditions - Seven Seas Germany GmbH