(a) The Goods shall, unless expressly stated otherwise, be shipped by the Mode of Transport on the Agreed Delivery Terms.
(b) Where delivery of Goods to the Contract Destination involves carriage of Goods by sea, it is understood that the cost of the discharge, on completion of the sea voyage, is included in the freight.
(c) Where the total quantity of Goods is sub-divided into amounts for stated Shipment Periods and/or different Contract Destinations, the amount for each Shipment Period and/or each Contract Destination shall be treated as separate contracts.
(a) “Shipment” shall mean placing the Goods on board seagoing vessels or, in the case of RO/RO or where no sea voyage is involved, it shall mean the delivery by the Seller of the Goods into the possession of the Carriers.
(b) Subject to clause 2(c), where the Shipment Period is stated in the Special Terms to be ‘prompt’, this shall give the Seller a Shipment Period of 45 days from the date of these terms of contract.
(c) Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
(d) The Goods shall be dispatched from the Seller’s premises suitably protected and adequately and securely bound to ensure stability in transit to the Contract Destination.
(e) Unless otherwise agreed in the Special Terms, all Goods involving a sea voyage shall be stowed in the vessel under deck. Standard end-loading containers shall be deemed to be ‘under deck’ wherever stowed.
(f) The Seller shall instruct the Carriers to stow flat racks, open-top and open-side containers under deck, but where such stowage cannot be provided then such flat racks and containers shall be adequately protected to prevent loss or damage.
(a) In accordance with the Mode of Transport, the Seller shall secure in due time all transport with reliable carriers (the “Carriers”), who are fully liable to deliver the Goods to the Contract Destination on transport of suitable type and condition for conveyance of the Goods.
(b) The Buyer agrees (in the case of FOB terms only) that the Seller, in securing onward transport, acts as the Buyer’s agent and the cost of freight, payable at destination, is for the Buyer’s account and payable by the Buyer to the Carriers, in addition to the price payable by the Buyer to the Seller as set out in these terms of contract.
(c) Such transport shall be of a type that would not involve the Buyer in payment of any excess insurance premium owing to its age, class, condition, flag or any other matter which makes the transport unsuitable.
(d) If the Mode of Transport provides that the Goods shall remain on road vehicles during any sea voyage to the country of destination (“RO/RO”), or if the delivery by the Seller to the Contract Destination involves no sea voyage, the term ‘Bill of Lading’ for the purposes of these terms of contract shall be taken to mean an appropriate delivery order, or consignment note, or other such appropriate customary document, issued by the Carriers.
(e) Where the Agreed Delivery Terms involve inland delivery at the responsibility of the Seller, the Seller shall ensure its hauliers and forwarding agents co-operate with the Buyer in terms of providing information and documents with regards to the date of arrival of the goods at the Contract Destination and customs clearance.
(f) Any rent, insurance or other charges or expenses incurred in connection with the Goods by reason of the Buyer’s unreasonable delay in complying with its obligations under the Agreed Delivery Terms in terms of customs clearance, payment of duties, unloading of vehicles or otherwise shall be for the Buyer’s account.
(a) The Seller shall give (for each shipment) immediate notices by electronic means to the Buyer of the name of the vessel, the name of the Carriers, the date of shipment and the quantity of Goods shipped.
(b) The “shipping documents” shall consist of those documents set out in the Special Terms.
(a) Unless otherwise agreed in the Special Terms, the Seller shall have the right to vary the quantity of Goods to be shipped by not more than 5% or 10m3 (whichever is the lower) in respect of Goods described in the Product Schedule (the “Permitted Margin”).
(b) Where instalment shipments are permitted during the Shipment Period, the margin in the final shipment shall be within 10% of the outstanding balance, and not give the Seller a larger aggregate Permitted Margin than provided for under clause 5(a).
(a) In the event of over-shipment of the contracted Goods (taking into account the Permitted Margin), the Buyer shall not be entitled to reject the shipped Goods but shall have the option (provided the Buyer exercises it forthwith) of:
(i) taking up the Bill(s) of Lading and paying for the whole quantity of shipped Goods; or
(ii) of taking up the Bill(s) of Lading for the contracted quantity of Goods only (taking into account the Permitted Margin) and rejecting the excess.
(b) If the Buyer elects to adopt clause 6(a)(ii), the Seller shall pay all extra expenses incurred by the Buyer in consequence of the over-shipment.
(c) In the event of under-shipment or non-shipment of the contracted Goods (taking into account the Permitted Margin), the Buyer shall accept and pay for the shipped Goods but shall have the right to claim compensation for such under-shipment or non-shipment (taking into account the Permitted Margin).
(a) “Force Majeure Event” means any circumstance beyond the Seller’s reasonable control, including:
(i) acts of God, ice, fire, flood, drought, earthquake or other natural disaster, epidemic or pandemic,
(ii) delay to or loss of the vessel previously nominated by the Buyer, and
(iii) the prohibition of export or import, imposition of sanctions, embargo, terrorist attack, blockade, war or mobilisation for war, any law or action taken by a governmental authority, or any event falling within clause 16(b), that would prevent shipment being completed within the Shipment Period.
(b) Provided it has complied with clause 8(c), the Seller shall not be in breach of these terms of contract or liable for any damages resulting to the Buyer therefrom as a result of a Force Majeure Event.
(c) The Seller shall as soon as possible after the start of the Force Majeure Event (but no later than the last day of the Shipment Period) notify the other party by electronic means of the Force Majeure Event, the date on which it started, its likely duration and the effect of the Force Majeure Event on its ability to complete shipment within the Shipment Period.
(d) Where the Seller’s notice states that shipment will occur (and gives a revised date for shipment) despite the Force Majeure Event, the Shipment Period shall be extended by 6 weeks. The Shipment Period may be extended further only with the approval of the Buyer, who shall respond to the Seller within 7 days of being asked to agree to any extension longer than 6 weeks. Where the Shipment Period is extended, the Seller shall issue a written addendum to the Buyer forthwith.
(e) Save where the Shipment Period is extended in accordance with clause 8(d), or where shipment has not occurred by the end of any such extended Shipment Period
(i) where the Force Majeure Event falls within clause 8(a)(iii), the shipment (or any unfulfilled part of it) may be cancelled by either the Seller or the Buyer by giving to the other party written notice of such cancellation, or
(ii) in all other cases, the Buyer shall have the option to cancel the shipment (or any unfulfilled part of it) by giving to the Seller written notice within 7 days of receipt of the notice referred to in clause 7(c). No party shall be responsible to another for damages resulting therefrom.
(f) If after the date of contract but prior to the end of the Shipment Period any duty, charge or tax which may be payable in respect of the export of the Goods is imposed or increased, the Seller shall have the right (by giving immediate written notice to the Buyer) to negotiate with the Buyer an increase in the prices up to the extent of the additional amount involved and, failing agreement within 14 days of such notice, the Seller shall have the right to cancel the shipment (or any unfulfilled part of it). No party shall be responsible to another for damages resulting therefrom.
(g) The Seller shall not be entitled to make any shipment outside the Shipment Period (including any extension(s) granted or allowed under clause 8(d)). Any extension to the Shipment Period is without prejudice to the Buyer’s right to compensation (save where excluded under clauses 7(b), 7(e) and 7(f)).
(a) The obligation on the Buyer or the Seller to make a contract of insurance for the Goods shall be determined in accordance with the Agreed Delivery Terms.
(b) The party having responsibility for insurance under the Agreed Delivery Terms (“Responsible Party”) shall insure the Goods:
(i) in the name of both the Buyer and the Seller for not less than 110% of the Insurable Value; and
(ii) with an insurer registered in the Buyer’s country of domicile with an AM Best credit rating of not lower than ‘A’, or with underwriters carrying on business in the United Kingdom, or such other insurer as agreed by the Buyer and Seller, but in each case as per Lloyds’ Form of Policy, losses payable in the Buyer’s country of domicile and on the terms of the current Institute Timber Trade Federation Clauses, Institute Strikes Clauses (Timber Trade Federation) and Institute War Clauses (Commodity Trades).
(c) The Responsible Party shall ensure that the insurer will, where required, issue general average guarantees in standard form and authorise either the Buyer or the Seller (or the Agent, on behalf of the Seller) to sign any form of general average bond to obtain the release of the Goods from any carrier.
(d) Any excess premium for insurance under these terms of contract attributable to the age, class, condition, flag or other unsuitability of the vessel shall be for the Seller’s account. If the Buyer is the Responsible Party, it shall be entitled to deduct any such excess from any amounts due to the Seller under these terms of contract or otherwise or, if no such amounts are due, then the Seller shall promptly refund to the Buyer such excess provided always that the Buyer shall be obliged to produce evidence of such excess to the Seller.
(a) Where the Responsible Party is the Seller, and the premium for war and strikes risk insurance does not exceed 2% of the Insurable Value, any premium in respect of such war and strikes risk insurance up to ½% of the Insurable.Value shall be for the account of the Seller, and the remainder for the account of the Buyer.
(b) If the Responsible Party is unable to effect war and strikes cover on the Goods for a premium not exceeding 2% of the Insurable Value, the Responsible Party shall give immediate electronic notice to the other party if the Responsible Party is not prepared to bear the excess over 2%, and thereupon the other party shall have the right, by electronic notice within 3 days of receipt of the Responsible Party’s notice, to bear the excess.
(c) In the event that neither party is prepared to bear the excess or there is no agreement to share the excess over 2%, the terms of contract shall be deemed for all purposes to have been cancelled, without notice, to the extent of any unshipped Goods and without liability to either party in respect of the cancellation.
In these terms of contract:
“Bill of Lading” means the bill of lading issued by the Carriers (or any of them), or other relevant document referred to in clause 4(d).
“Contract Destination” means the port, terminal or place to which the Seller has agreed to ship the Goods in accordance with the Agreed Delivery Terms.
“EUTR” means Regulation (EU) 995/2010 of the European Parliament and of the Council of 20 October 2010, more commonly known as the EU Timber Regulation.
“Insurable Value” means the value of the Goods, calculated at the contract price after adjustments in respect of any currency exchange basis applied and after adding any freight and insurance premium not included in the contract price.
The phrases “Agreed Delivery Terms”, “Mode of Transport”, “Shipment Period” and “shipping documents” are defined in the Special Terms. The phrases “Agent”, “Buyer”, “Carriers”, “Goods”, “RO/RO”, “Permitted Margin”, “Responsible Party”, “Seller” and “shipment” are defined elsewhere within these terms of contract.
Subject to any other express provision in these terms of contract.
(a) Risk in the Goods shall pass to the Buyer in accordance with the Agreed Delivery Terms; and
(b) Title to the Goods shall not pass to the Buyer but shall be retained by the Seller until the contract price and all other monies owed have been paid to the Seller in full by the Buyer. Until such time as title in the Goods has passed to the Buyer:
(i) the Buyer shall store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller's property;
(ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(iii) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(iv) notify the Supplier immediately if it becomes subject to any of the events listed in clause 18(a);
(v) the Seller shall have absolute authority to retake, sell or otherwise deal with or dispose of all any or part of the Goods in which title remains vested in the Seller;
(vi) for the purpose specified in (i) above, the Seller or any of its agents or authorised representatives shall be entitled at any time and without notice to enter upon such premises in which the Goods or any part thereof is stored or kept, or is reasonably believed so to be; and
(vii) the Seller shall be entitled to seek a Court injunction to prevent the Buyer from selling, transferring or otherwise disposing of the Goods.
(c) If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 18(a), then, without limiting any other right or remedy the Seller may have, 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.
(a) The Seller hereby appoints the Agent as its exclusive agent for the sale of the Goods to the Buyer.
(b) The Seller agrees with the Agent:
(i) to act dutifully and in good faith;
(ii) to indemnify the Agent against any liabilities which the Agent may incur as a result these terms of contract, defective Goods and/or the supply of Goods generally to the Buyer (save where such liability arises as a result of the Agent’s default);
(iii) not, without the Agent’s consent, deal directly with the Buyer in respect of the Goods; and
(iv) to pay to the Agent its agreed rate of commission on sales of the Goods (in respect of which the Agent shall be granted an express right of set-off against sums otherwise due from the Agent to the Seller).
(c) The Agent shall guarantee to the Seller the payment by the Buyer of the contract price for Goods sold to the Buyer by the Agent on the Seller’s behalf. The Agent shall not, however, be liable under clause 13(c) where the failure by the Buyer to pay is caused by some default by the Seller.
(d) The Agent agrees with the Seller:
(i) to act conscientiously and in good faith;
(ii) not to act in any way which will incur any liabilities on behalf of the Seller;
(iii) to comply with all reasonable and lawful instructions of the Seller from time to time concerning the sale of the Goods to the Buyer;
(iv) to act in accordance with sound commercial principles in its relations with the Buyer;
(v) to keep the Seller fully informed of its activities concerning the sale of the Goods to the Buyer; and
(vi) to issue invoices to the Buyer for the sale of the Goods, and to receive payment for the same.
(e) The parties acknowledge that the Agent shall not, at any time, become the owner of the Goods.
(f) The Seller and the Agent hereby agree that the Commercial Agents (Council Directive) Regulations 1991 shall apply to the Agent for the purposes of the agency granted by clause 13 and, unless any of the circumstances mentioned in article 18 of the Regulations apply, the Agent shall have the right to be indemnified as provided in article 17 of the Regulations.
(a) The Buyer hereby appoints the Agent as its agent for the sole purpose of paying, or procuring the payment to the Seller of the contract price for the Goods.
(b) Where payment for the Goods is tendered by the Agent, the Seller shall treat such payment as having been tendered by the Seller.
(c) Where the Agent makes payment to the Seller on the Buyer’s behalf prior to the Buyer putting the Agent in funds to do so, the Buyer shall pay the Agent on demand a sum equivalent to the full contract price for the Goods, including any carriage, insurance, freight and taxes (notwithstanding that this amount may differ from the amount so paid by the Agent).
(d) The Agent agrees with the Buyer:
(i) to act conscientiously and in good faith;
(ii) to comply with all reasonable and lawful instructions of the Buyer from time to time concerning the tendering of payment for the Goods; and
(iii) to act in accordance with sound commercial principles in its relations with the Seller.
(e) The Buyer and the Agent hereby agree that the Commercial Agents (Council Directive) Regulations 1991 shall not apply to the Agent for the purposes of the agency granted by clause 14.
(a) Subject to clauses 12 and 13, and in consideration of supplying the Goods, the Buyer shall pay the Seller via and in favour of the Agent the invoice value on receipt of and in exchange for the shipping documents referred to in clause 4(b), in cash or (subject to agreement at the time of presentation of by the shipping documents) by approved acceptance of the Agent’s or the Seller’s drafts for the period.
(b) Any freight included in the contract price which is not prepaid by the Seller shall have been deducted in the invoice, and the Buyer shall pay the amount to the Carriers or their nominated representative.
(c) All sums stated in these terms of contract are exclusive of value added or other applicable sales tax which shall, where applicable (and shown separately on the invoice) be payable in addition at the then prevailing rate.
(d) In the case of non-compliance by the Buyer with the provisions in clause 14(a), the Seller shall have immediate power of resale for the Buyer’s account.
(e) Without prejudice to any other remedy the Seller may have, the Seller reserves the right (in the event of late payment by the Buyer) to charge interest at the rate of 8% per annum above the Bank of England base rate from time to time in force, calculated on a daily basis from the due date until the actual date of payment.
(f) The Buyer is responsible for confirming the payment details provided by the Seller or Agent are accurate prior to the transfer of monies. Neither the Seller nor Agent accept any liability for payments made to incorrect payment details.
(a) Subject to any other express provision in these terms of contract, the obligation to obtain any export or import licence, and the costs thereof, and to pay any export or import duty, charges and taxes shall be in accordance with the Agreed Delivery Terms.
(b) If either party, through no fault of its own having made application in due time is refused a licence, or any licence having been issued is revoked, before the end of the Shipment Period, and the affected party is unable to secure a licence, then this shall be deemed a force majeure event within the scope of clause 8(a)(iii).
(c) The Seller warrants that the Goods, and all packaging materials, shall comply with all laws and regulations of the country of destination in force at the time of shipment (including all relevant plant health regulations), and any corresponding laws and regulations of any country through which the Goods are transported to the Contract Destination.
(d) The Seller shall ensure that the Goods are properly packed and secured in such manner as to enable them to reach the Contract Destination in good condition.
(e) The Seller undertakes to the Buyer that it will, prior to shipping the Goods, provide such documentary evidence as the Buyer may reasonably request to enable the Buyer to fulfil its legal and compliance obligations regarding due diligence under the EUTR. The Seller represents to the Buyer that all Goods supplied under these terms of contract shall comply with the EUTR.
(f) Each party undertakes to comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, and shall in place its own policies and procedures to ensure compliance.
(g) The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
(a) Save as expressly stated in clauses 12 and 13 (or as otherwise implied by the Commercial Agents (Council Directive) Regulations 1991), the Agent has no obligation, duty or liability to the Buyer or the Seller in contract, tort (including negligence or breach of statutory duty) or otherwise beyond that of a duty to exercise reasonable skill and care.
(b) The Agent accepts no liability and gives no warranty in relation to the Goods or any defects therein. In particular, but without limitation, the Agent shall have no liability regarding the fitness for purpose, quality or merchantability of the Goods, whether express or implied, statutory or otherwise.
(a) No claim in respect of any shipped Goods will be recognised by the Seller unless a detailed statement of claim in respect of the shipped Goods, and notice that the shipped Goods are available for inspection at one or more premises, is sent to the Seller within:
(i) 30 days where goods supplied are not in accordance with the contract specifications and quality requirements
(ii) 60 days for faulty adhesion calculated from the date the Goods arrived at the Contract Destination.
(b) The Buyer shall take proper and reasonable care of the shipped Goods until final settlement of the claim.
(c) The statement of claim shall contain the relevant Contract No, date of shipment / arrival, a description of the Goods (including sizes), shall identify the specific defects complained of, and shall set out the percentage depreciation and total amount claimed.
(d) If in any claim under clause 17 the full quantity of any shipped Goods is not available for inspection, the quantity not made available for inspection shall be deemed to be according to these terms of contract and shall not be taken into account in assessing the percentage depreciation.
(e) The Buyer shall be at liberty to deal with the shipped Goods on which there is no claim without prejudice to its right to claim on any other Goods.
(f) The Buyer shall not refuse to accept the Goods, or delay in making payment, in the event of any dispute arising. No claim or dispute shall absolve the Buyer from its obligation to take up and pay for correct shipping documents in respect of the Goods, and to take custody and possession of the Goods shipped against such documents, but such payment and acceptance shall be without prejudice.
(g) The Seller’s total liability shall not, subject only to clause 17(h), exceed the total value of the Goods (including any carriage, insurance or freight included within the Agreed Delivery Terms) in dispute, together with import duty and all demonstrable expenses paid by the Buyer in taking delivery from the vessel and/or effecting delivery to the Buyer’s customer’s premises in the United Kingdom (including such expenses incurred in the handling storage and insurance of the Goods).
(h) Nothing in these terms of contract shall exclude or limit a party’s liability for fraud, for death or injury caused by negligence, or for any other liability that cannot be legally excluded or limited.
(i) In no event shall any party be liable in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof:
(j) for any loss of profit, business, contracts, revenues or anticipated savings; or (ii)for any special, indirect or consequential damage of any nature whatsoever.
(a) Without limiting its other rights or remedies, the Seller may terminate this Contract with immediate effect by giving written notice to the Buyer if:
(i) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(ii) the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(iii) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(iv) 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.
(b) Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in clause 18(a)(i)-(iv), or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
(c) On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest.
(a) In the event of a dispute between two or more parties, those parties shall negotiate in good faith and use their respective best efforts to settle the dispute amicably.
(b) If the dispute cannot be settled amicably through ordinary negotiations, the parties in dispute may (upon mutual agreement) refer the dispute to expert determination, or agreed to participate in an agreed form of mediation or alternative dispute resolution (in each instance, to occur in England in the English language).
(a) These terms of contract shall be governed by, and construed in accordance with, the laws of England and Wales.
(b) All parties domiciled in the European Union hereby acknowledge and agree that EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments shall not apply.
(c) Each party not domiciled in England or Wales represents to the other parties that it shall not claim that these terms of contract are subject to the laws of any other jurisdiction, nor issue or initiate any legal proceedings before any court or tribunal other than as set out in clause 20(d).
(d) Each party hereby irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.
(a) Any notice under these terms of contract shall be in English and (subject to clause 21(b)) sent to the address, fax number or email address specified in these terms of contract for the recipient party.
(b) Where notice is to be given under these terms of contract in respect of a dispute between the Buyer and the Seller:
(i)notice served by the Buyer to the Agent shall be deemed to have been served on the Seller; and
(ii) notice served by the Agent to the Buyer shall be deemed to have been served by the Seller.
Each party will take all proper steps to keep confidential all confidential information of the other party which is disclosed to, or obtained by, it pursuant to or as a result of this Agreement, and will not divulge the same to any third party and will allow access to the same to its own staff only on a ‘need to know’ basis, except to the extent that any such confidential information becomes public through no fault of that party. This clause shall remain in force for a period of five years after termination of the contract.
No part of these terms of contract shall be enforceable by anyone other than the Seller, the Buyer and the Agent pursuant to the Contracts (Rights of Third Parties) Act 1999.
Entire agreement: These terms of contract (including the schedules) and any subsequent amendments supersede all prior agreements between the parties (including the Buyer’s standard terms) and constitute the entire agreement between the parties. Nothing in these terms of service shall exclude or limit liability for fraud or fraudulent misrepresentation.
Amendments: Unless expressly stated otherwise, no amendment to these terms of service shall be valid unless in writing signed by an authorised representative of each party. Severance: If any provision in these terms of service is prohibited by law or judged to be unenforceable, the provision shall to the extent required be severed from these terms of service and rendered ineffective without modifying the remaining provisions of these terms of service, and shall not in any way affect the validity of the rest of these terms of service.
Assignment: These terms of service are personal to the Seller and the Buyer and shall not be assigned without the prior written consent of the other party (not to be unreasonably withheld). No waiver: No delay, neglect or forbearance by either party in enforcing these terms of service against the other party shall be deemed to be waiver of the right to do so.
Unless otherwise stated, the following rules shall apply when interpreting these terms of contract: Singular words shall include the plural and vice-versa. Words importing any gender shall include all genders. References to persons shall include companies. References to “including” and similar expressions shall be without limitation. References to statutes or statutory provisions shall be as amended or replaced and shall include all subordinate legislation made under it. Headings shall be ignored when interpreting these terms of contract.