Last updated: March 1, 2021
1.0 In consideration of Port Sigurd International Ltd, a limited company organized and existing under the laws of England and Wales with company number 13152307 whose registered office is at 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ, and/or any of its affiliated or related entities (“Seller”) agreeing to provide goods or services to the Buyer, the Buyer agrees as follows: These Terms and Conditions of Sale together with the terms and conditions of any other credit application, quotation, confirmation and/or invoice prepared by Seller constitute the agreement between the parties (the “Agreement”). Buyer agrees to each and every term contained in the Agreement as a precondition to Seller’s performance. Any term or condition in any purchase order or other form or document issued by Buyer, regardless of the materiality of the term or condition, that differs from or is contrary to the terms and conditions contained in the Agreement are objected to and excluded unless expressly agreed to in a written acknowledgment issued by Seller. No other terms or conditions not set forth in the Agreement shall apply unless expressly agreed to in a written acknowledgment issued by Seller.
1.1 Seller requires that Buyer be a business officially registered with and in compliance with local trade and business authorities and that Buyer is not a sole proprietor. Buyer accepts and acknowledges that Buyer may only enter into business relations with Seller when Buyer complies with this provision in full and that Buyer will be held liable for any damages and costs incurred by Seller should Buyer enter into business relations with Seller without complying with the provisions set out in this clause.
2.0 Payment shall be made by the date set out in the invoice received by Buyer. A time-price differential charge equal to 0.5% per day will be charged on all balances not paid in full as of the final date set out in the invoice received by Buyer on which the payment is due. If Buyer’s financial responsibility shall become unsatisfactory to Seller at any time and for any reason, Seller shall have the right, in addition to whatever other rights Seller may have at law or equity, to require payment in cash or to obtain satisfactory security from Buyer before making any further deliveries. In case any payment is not made when due, Seller shall have the right, in addition to its other remedies, to seek specific performance of this Agreement, to suspend any further deliveries, alter payment terms, or terminate this Agreement. Approval of credit for one or more deliveries shall not be deemed a waiver of this provision. Payments can only be made by corporate bank or electronic payment accounts registered in the parties’ official business names. Any payments made with bank or electronic payment accounts registered in individual names will be declined and be subject to a rejection fee of 1% of the total order sum including shipping cost to be invoiced to the offending party within 7 days and payable within 14 days.
2.1 Seller accepts the following forms of payment: SEPA and SWIFT transfers. Payment methods are subject to limitations and may be unavailable for payments above thresholds to be specified elsewhere. Buyer agrees to provide current, complete, and accurate purchase and account information for all purchases. All payments shall be in either EURO or USD unless stated else. Payments in either currency may only be made to a receiving account denominated in the same currency. For example, an order placed in USD may only be paid in full to a receiving account denominated in USD. Any attempts to achieve more favorable exchange rates by for example paying a EUR order in USD constitutes a breach of this agreement and will be subject to cancellation fees as set out in provision.
2.2 Buyer agrees to pay all charges at the prices then in effect for purchases and any applicable shipping and handling fees, and Buyer authorizes Seller to charge Buyer’s payment provider for any such amounts upon placing the order.
2.3 If Buyer’s order is subject to recurring charges, then the Buyer consents to the Seller charging Buyer’s payment method on a recurring basis without requiring the Buyer’s prior approval for each recurring charge, until such time as the Buyer cancels the applicable order. The Seller reserves the right to correct any errors or mistakes in pricing, even if the Seller has already requested or received payment.
2.4 The Seller reserves the right to refuse any order at their own discretion. The Seller may, in their sole discretion, limit or cancel quantities purchased per Buyer or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. The Seller reserves the right to limit or prohibit orders in their judgment and the Seller reserves the right not to supply certain Buyers or countries and to inquire of the Buyer full details of the end use and final destination of the Goods.
DISCLAIMER OF WARRANTIES
3.0 SELLER DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE GOODS AND/OR SERVICES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION DESCRIPTION, QUALITY, DESIGN, PERFORMANCE, NON-INFRINGEMENT, COMMERCIAL UTILITY, SPECIFICATIONS, CONDITION, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT BUYER IS NOT RELYING ON SELLER’S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS AND/OR SERVICES SUITABLE FOR ANY PARTICULAR PURPOSE. NO PERSON, INCLUDING BUYER, IS AUTHORIZED BY SELLER TO MAKE WARRANTIES OR ASSUME ANY LIABILITY FOR SELLER WITH RESPECT TO THE GOODS AND/OR SERVICES. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHALL NOT BE RELIED ON BY BUYER AND ARE NOT PART OF THE AGREEMENT. SELLER’S WARRANTY OBLIGATIONS, AND BUYER’S REMEDY, ARE SOLELY AS STATED IN THIS AGREEMENT. SELLER MAKES NO WARRANTY THAT THE GOODS AND/OR SERVICES (i) WILL MEET BUYER’S REQUIREMENTS, (ii) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE GOODS AND/OR SERVICE WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE GOODS AND/OR SERVICES WILL BE CORRECTED.
3.1 Product warranties and terms of service entail services offered by the manufacturer as part of the goods sold and the Seller is not a party to any services to be performed after a transaction has been completed. Warranties as stated in sales materials, websites and elsewhere are based on information provided by manufacturers in product information sheets and may have changed and/or have been terminated as part of a product in the during or after a transaction between Seller and Buyer has been completed. Buyer accepts and understands that the Seller is not to be held liable for any warranty claims arising either during or after a transaction between Seller and Buyer has been completed and the Buyer acknowledges that any claims of warranty must be arranged between the Buyer and manufacturer. Terms of service such as ‘After-Sales Service’ and similar product properties entail services to be performed by the manufacturer and the Seller is not a party to any such services and/or tasks either during or after a transaction between the Seller and Buyer has been completed. Any service claims Buyer has must be raised with the manufacturer of the goods purchased and Buyer accepts and acknowledges that the Seller is not to be held liable or responsible for any delivery, performance, quality, timeliness, usefulness or content of any services offered as part of a product.
3.2 Product data as stated in Seller’s sales materials such as websites, catalogs and/or price lists are based on estimates derived from product data from manufacturers’ data sheets and may be subject to change and/or not conform to the product data listed and Buyer accepts and acknowledges that such deviations may occur during transactions and Buyer agrees to not hold Seller liable for any such deviations or claims of replacements.
3.3 Buyer understands and accepts that any claims over quality discrepancies, warranties, services, after sales services, product suitability, product conformity to industry standards and/or national requirements on industrial goods must be raised with the manufacturer of goods sold and that Seller shall have no liability in such a matter nor any duty or responsibility to perform, correct, or rectify any such claims.
3.4 Buyer acknowledges and accepts that Buyer alone shall be responsible for the import of goods purchased from Seller unless expressly stated else and that it is the Buyer’s obligation to ensure that goods ordered are eligible for import into the country of destination port. Any costs including but not limited to demurrage, detention and/or per diem charges incurred due to restrictions, bans, tariffs or taxes imposed on goods ordered are to be carried by Buyer alone and Seller is not held liable for any delays, bans, denial of import of goods imposed on goods ordered.
NOTICE OF CLAIMS
4.0 Buyer shall inspect the goods or services provided by Seller immediately upon delivery. Notice of any claim for shortage or defects discoverable on such inspection shall be made to Seller within five (5) days thereafter. Buyer shall, upon Seller’s request, furnish reasonable proof of any claimed defect in the form of photographic evidence and testimony provided by an unaffiliated third party within competency to assess any claimed defect and Seller shall be given an opportunity to investigate. Failure of Buyer to give notice of any claim within the specified period shall be deemed an absolute and unconditional waiver of such claim.
RISK OF LOSS
5.0 Unless expressly stated else in writing, the goods sold pursuant to this Agreement are sold F.O.B. Supplier’s place of business. The Buyer acknowledges and accepts that the Seller operates in conjunction with third party suppliers, sourcing Goods from different warehouses located around the world. Unless stated else, Buyer assumes responsibility for all costs of transportation. If Seller assists Purchaser in this regard, it is agreed that such assistance is gratuitous, and Seller shall have no obligation or liability arising out of such assistance. Risk of loss shall pass to Buyer when Seller completes its performance with respect to delivery of the goods to Buyer according to the Incoterm agreed upon. Buyer will not hold Seller liable for any actions performed by third party suppliers nor will Buyer hold Seller liable for claimed damages or other issues arising prior, during or after the delivery of goods.
RETENTION OF TITLE
6.0 The Seller shall retain title to the goods according to the Incoterm agreed upon and delivered until full payment of the purchase price, even if any of the receivables arising from the business relationship, in general, have not yet been fully settled. Until then, the Seller is entitled to reclaim the merchandise from the Buyer, even if the Buyer has used or resold the merchandise, in full or in part.
6.1 If the Buyer sells the merchandise before full payment has been made, it hereby assigns to the Seller any and all amounts due to it from its customer for the goods sold and/or its retention of title to such goods with binding effect vis-a-vis third parties. The Buyer is not entitled to pledge the goods or to assign it by way of security.
7.0 Quotations are valid for 10 days from the date of the quotation and need to be confirmed in writing. Seller works on a first come first served basis from confirmation and reserves the right to decline.
7.1 Unless stated else prices are quoted as estimates according to CIP and may be subject to corrections and/or deviations.
8.1 After an order has been placed by Buyer and invoiced by Seller but prior to it having been paid by Buyer, cancellation of the order on Buyer’s request will be subject to a 6% handling charge calculated on the entire sum due in the invoice including shipping costs to be paid by Buyer. The charge due will be invoiced by Seller to Buyer and must be paid within 10 days.
8.2 After an order has been placed by Buyer and invoiced by Seller and paid by Buyer, cancellation of the order on request of the Buyer will be subject to a handling charge of 25% calculated on the total sum due including shipping and handling costs and an additional surcharge to compensate for working hours expended on part of the Seller valued at EUR 625/Working Hour. The charge due will be invoiced by Seller to Buyer and must be paid within 10 days. Returns of prices paid will take at least take 180 days.
8.3 Any activity that is suspected of being fraudulent or a precursor to commit fraud whether in terms of order processing, payment processing or otherwise will cause any orders and/or payments placed to be put on hold at Seller’s discretion until the situation has been investigated. Buyer is advised that Seller reserves the right to freeze orders if Seller suspects fraudulent activity which may include but is not limited to the use of payment methods not belonging to Buyer, engaging in activity to influence or otherwise manipulate Seller’s supply chain, suppliers, order processing, deliveries or returns, engaging in side-letters or negotiations with Seller’s suppliers directly or indirectly related to orders placed with Seller. The Seller reserves the right to deduct any legal costs that may arise out of the investigation of fraud or the suspicion thereof on orders and/or payments made by Buyer, which will cover any of Seller’s losses arising out of opportunity cost, working hours lost, legal fees, material costs, delivery costs and other costs directly related to such a case.
9.0 Changes in an order in terms of product type, quantity, delivery terms, shipping terms, invoicing terms, payment methods or any other term in relation to it on request of the Buyer will be subject to a handling fee of 6% calculated on the total sum due as set out in the invoice including shipping costs. The charge will be added to the new invoice. If the order is subsequently canceled by Buyer prior to having been paid the charge set out in this provision will be added to the cancellation terms as set out in Article 7.1. When changes are requested by the Buyer in an order that already has been paid a charge of 15% will apply as calculated on the total sum due in the invoice including shipping and handling costs.
10.1 Incoterms 2020, published by the International Chamber of Commerce, shall govern this contract to the extent this contract specifies terms covered by Incoterms 2020, provided that in the event of any conflict between this contract and Incoterms 2020, this contract shall govern.
10.2 In addition to the other terms and conditions of sale, the following terms and conditions shall apply to Seller’s carriage of goods when Seller is accommodating Buyer by delivering to Buyer or on Buyer’s behalf goods that are purchased by Buyer from Seller.
a. Buyer’s signature on a Shipping Manifest or similar document will be evidence of receipt of the goods identified in the Shipping Manifest and related documents in apparent good order and condition.
b. Seller’s liability for carriage of Goods will end when Goods arrives at the intended shipment destination or, as applicable, if Seller is required by contract to unload the goods, when Seller completes the unloading of goods at the intended shipment destination.
c. No Buyer different form of receipt, bill of lading, or otherwise that is used will be effective to modify these Terms and Conditions of Sale.
d. To pursue any claim arising from Seller’s carriage of goods, Buyer’s claims must be filed with Seller no later than 2 weeks after the delivery of the goods. Any claims not filed within the 2 weeks limitations period are barred and Seller will have no liability for such claims.
10.3. Unless expressly stated else in writing, taxes and duties arising during the delivery and transfer of goods ordered from Seller are due to be paid by Buyer.
11.0 Seller shall not be liable for any delay or impairment of performance resulting in whole or in part from any cause beyond Seller’s control including, without limitation, fires, floods, explosions, accidents or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, riots or embargo delays, government allocations or priorities, shortages of transportation, fuel, labor or materials, inability to procure the goods or raw materials, severe weather conditions, changes of law or regulation, or any other circumstance or cause beyond Seller’s control. Such excuse from performance shall extend so long as the event continues to delay or impair Seller’s performance.
12.1 To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms & Conditions of Sale (each a “Dispute” and collectively, the “Disputes”) brought by either Buyer or Seller (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 180 days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
12.2 If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration.
12.3 The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of England and Wales.
12.4 The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
12.5 Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
12.6 If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the courts located in the United Kingdom, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and courts.
12.7 In no event shall any Dispute brought by either Party related in any way to this Agreement and a transaction in relation to it be commenced more than 180 days after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
LIMITATION OF LIABILITY
13.1 The exclusive remedy for the Buyer for any damages incurred as a result of the Agreement is limited to the return of the price paid for such goods and services subject to deductions of costs arising in the procurement and delivery of such goods and Buyer reserves the right to deduct any expenses from price paid by Buyer prior to return of any sums due. Buyer acknowledges, understands and accepts that such costs and fees can exceed the price paid by Buyer. In no event shall Seller be liable to Buyer or any other person or entity for damages of any kind, including, without limitation, indirect, special, incidental, consequential or punitive damages, arising from the goods or services or in connection with the use or inability to use the goods or services for any purpose whatsoever, irrespective of whether the claims or actions for such damages are based upon contract, tort, negligence, strict liability, warranty or otherwise. In no event shall Seller incur any liability whatsoever for damages of any kind arising out of or relating to delay in delivery. Return of price paid will take at least 6 billing periods (180 days).
13.2 Should the remedy of replacement be found to be inadequate or to have failed of its essential purpose for any reason whatsoever, Buyer agrees that return by Seller to Buyer of the full price paid minus any costs and fees at the discretion of the Seller and subject to be deducted from full price paid for the particular goods or services shall prevent the remedy from failing of its essential purpose and shall be considered by Buyer a fair and adequate remedy.
14.0 Indemnification: Buyer shall indemnify, defend and save Seller harmless from any liability, loss, cost, penalty, damage or expense, including attorneys’ fees, which Seller may incur as a result of any claim, damage, injury, cause of action, proceeding, citation, or work stoppage arising out of or in any way connected with Buyer’s receipt, installation, modification, or use of any goods or services provided by Seller. This indemnity includes all costs and attorneys fees, legal costs, investigation costs, opportunity costs, working hours expended calculated at EUR 625/hour, regardless of whether litigation is filed or arbitration demanded. This indemnity survives the termination or completion of the sales transaction at issue. This indemnity also includes all claims for patent infringement or any intellectual property claims.
COST OF COLLECTION
15.0 Costs of Collection: In the event Buyer or Guarantor shall default in any way on Buyer’s or Guarantor’s obligations under this or any other Agreement, including without limitation the failure to make a timely payment, Buyer and Guarantor shall be liable to Seller for all of Seller’s costs of collection including, but not limited to, attorney’s fees and expenses.
16.0 Unless specifically noted otherwise, prices do not include present or future national, state or local taxes or duties. All taxes and duties shall be for the Buyer’s account.
16.1 Unless stated else in writing, prices do not include the cost of any independent laboratory inspection if such should be required.
16.2 Quoted deliveries are based on estimates at the time of quotation. Seller will devote its best efforts to meeting the delivery schedules but assumes no liability for additional costs or damages resulting from later deliveries.
17.0 Buyer covenants and agrees that Buyer shall not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports or comments) which are disparaging, deleterious or damaging to the integrity, reputation or goodwill of the Seller, its management, or of management of corporations affiliated with the Company.
18.0 This Agreement shall be governed by and construed in accordance with the laws of England and Wales. By entering into this Agreement, Buyer waives any right to a jury trial. By entering into this Agreement Buyer agrees to submit itself to jurisdiction of the United Kingdom and to venue in the United Kingdom. BUYER WAIVES ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY IF NOT BROUGHT WITHIN 180 DAYS AFTER THE SALE SUBJECT TO THIS AGREEMENT WAS COMPLETED.