Terms & Conditions
The sale of all goods and services by the seller (the “Seller”) to the purchaser shall be subject to and governed exclusively by these terms and conditions of sales (the “Conditions”). The Seller’s acceptance of any order or other offer by the purchaser (whether in writing, by telephone or otherwise) for any goods or services shall be conditioned upon the purchaser’s assent to these Conditions. Such assent shall be deemed given upon the earlier of: (i) the purchaser’s acceptance of these Conditions pursuant to a credit application containing or referencing these Conditions; (ii) the purchaser ordering goods or services from the Seller based on a Seller quotation or proposal containing or referencing these Conditions; or (iii) five (5) days after the purchaser’s receipt of these Conditions as contained or referenced in a Seller acknowledgement, sales acceptance , bill of lading, invoice or any other writing (including, without limitation, electronic correspondence), unless, prior to the expiration of such five (5) day time period, the purchaser rejects these Conditions in their entirety (specifically referencing these Conditions) by delivering written notice thereof to the Seller. No additional or different conditions, whether contained in a purchase order or any other communication from the purchaser (whether written or oral and whether previously given or later asserted), shall be binding upon the Seller and same shall for all purposes be deemed disregarded unless otherwise specifically agreed to in writing by an executive officer of the Seller. The failure of the Seller to object to any such additional or different conditions shall not be a waiver of these Conditions or an acceptance of such additional or different conditions. No modification or amendment of, or addition to, these Conditions or any order accepted by the Seller by the purchaser shall be binding unless in writing and signed by an executive officer of the Seller.
All terms and conditions outlined below are applicable to this contract unless clearly stated on the Sales Order but only to the extent accepted by Seller in writing and which are initialed by Seller.
Prices and terms of payment
- Prices and terms of payment are set forth in Sales contract.
- Buyer shall not be entitled to withhold payments or to offset payments against any claims without prior written consent from the Seller.
- Interest shall accrue on all amounts remaining unpaid after the due date at the lesser of: (i) eighteen percent (18%) per month simple interest , or (ii) the maximum lawful rate under applicable law. If the Seller refers an Invoice to an attorney or other party for collection, the purchaser shall pay on demand all of the Seller’s expenses of collection including, without limitation, reasonable attorney’s fees and costs the fees and expenses of any expert retained by the Seller and any other related costs of collection.
- Upon failure of Buyer to settle any amount due, Seller may at its discretion suspend future deliveries at his own discretion until payment is made or cancel any unfulfilled order and Buyer shall remain liable for any unpaid fulfilled order.
- Buyer shall be responsible for all cost and expenses incurred by Seller in retaking, holding, re-selling of materials. Any shortfall in the discharge of the amount due shall be born by the Buyer.
- Buyer is fully responsible to Seller, for the full and complete execution of this contract irrespective of whether the cargo has been resold or assigned to any third party, and such responsibilities will include timely payment and, timely payment of any inspection service arranged or required by Buyer.
- The Seller’s prices do not include sales, use, manufacturer, retailer’s, occupation, excise, VAT or any similar or other tax, fee, duty, tariff or other charge imposed by an governmental authority on any transaction between the Seller and the purchaser. The purchaser shall furnish evidence of any sales tax exemption and shall warrant the validity and accuracy thereof. In all events, any such tax, fee, duty, tariff or other charge, even if initially advanced by the Seller or by any export-import broker, shall be the sole obligation of, and shall be promptly paid by, the purchaser. In the event that Seller is ever assessed any of such taxes, purchaser agrees to reimburse the Seller on demand.
Inspection and acceptance
- Buyer assumes all risks involved in the use or possession of material delivered hereunder. No warranties, expressed or implied, are made by Seller other than that the material conforms to the description stated herein within any tolerance stated.
- Buyer shall notify the Seller within 15 days from vessel arrival date for any discrepancy found. After this notice, Buyer has 3 days to submit the full report, including weight tickets and pictures, via email.
- Delivery must be supported by a report specifying the exact claim by an internationally recognized inspection agency, along with two sets of 10-15 photographs showing all the problems clearly with the container numbers and two original weight scale tickets for each container from the port/customs approved agents.
- Two weight tickets from different weighbridges should be provided by the buyer.
- Permissible shortage is 0.5% of the total weight of the materials. If shortage is more than the permissible quantity, Buyer should advise the Seller immediately subject to shipper’s seal intact.
- When the container reaches buyer’s yard/factory, buyer can unload the materials, as long as he is keeping the materials intact. In addition, Buyer needs to take clear pictures of the unloading process as follows:
- Photos showing container number (closed container and open container)
- Photos of materials inside the container capturing the container number
- Photos of offloaded materials (at intervals of every 10% of unloading)
- Written report about the quality problem found
- In case Buyer finds a quality problem, Buyer needs to keep all material intact and notify CNA Metals for further instruction.
- If Seller and Buyer do not reach an agreement to resolve the quality issues, Seller will instruct the surveyor within 2 working days from the time of mutual acceptance of buyer and seller to schedule the inspection. Report shall be final, conclusive and binding to all the parties.
- In case the Buyer cannot provide clear, thorough, and sufficient documentation, the claim will be disqualified and Buyer will be deemed to have irrevocably accepted the materials.
- Seller has the right to be represented at the time of claim either directly or through any party delegated including but not limited to buyer/agent/third party surveyor.
- Failure to report within 30 days of vessel ETA may result in complete denial of the claim.
- Performance of this contract is subject to container/vessel availability at port of loading.
- If any other circumstances whatsoever beyond the reasonable control of the Seller occurs, Seller will not be liable to any loss or damage accruing to the Buyer as a result of late shipment. • Seller may ship the materials in partial shipments. Each partial shipment will be treated as a separate shipment under this contract. However, if the Buyer does not pay for a partial shipment, Seller may treat the non-payment as a breach of contract relating to other shipments.
- Trans-shipments are allowed.
- For each shipment the Seller will inform Buyer of container shipping line name, vessel name, planned sailing date from loading port, vessel ETA at destination port.
- One set of non negotiable copies of shipping documents to be sent by Fax or E-mail to the Buyer within 15 working days from the date of shipment.
- If sales terms are CIF, then insurance will be covered as per institute cargo clauses ‘C’ from seaport to seaport.
- If and when applicable final destination to any ICD port, then inland haulage charges between port of discharge and final destination will be on Buyer’s account; or if paid by seller, the same will be reimbursed by buyer to seller
- All charges incurred at destination are to the account of the Buyer.
- Any demurrage and/or detention expenses incurred at load port are for Seller’s account. Likewise, any demurrage and/or detention expenses incurred at destination port are for Buyer’s account.
- Should the buyer fail to fulfill terms and conditions outlined in this contract; Seller’s has the right to claim all losses incurred in due course.
- If a signed contract is not returned to CNA Metals Limited within 3 business days of contract date, the seller agrees to all terms and conditions.
- If at any time during the existence of this contract either party is unable to perform whole or in part any obligation under this contract, because of war, hostility, military operation of any character, civil commotion’s, sabotage, quarantine restriction, acts of Government, fire, floods, explosions, epidemics, strikes or other labor trouble, embargoes, then the date of fulfillment of any obligation shall be postponed during the time when such circumstances are operative. Any waiver/extension of time in respect of the delivery of any installment or part of the goods shall not be deemed to be waiver/extension of time in respect of the remaining deliveries. If operation of such circumstances exceeds one month, either party will have the right to refuse further performance of the contract in which case neither party shall have the right to claim eventual damages. The party which is unable to fulfill its obligations under the present contract must within 30 days of occurrence of any of the causes mentioned in this clause inform the other party of the existence of the circumstances preventing the performance of the contract. Certificate issued by a Chamber of Commerce or any other competent authority connected with the cause in the country of the Seller or the buyer shall be sufficient proof of the existence of the above circumstances and their duration. Non-availability of material will not be an excuse to the Sellers for not performing their obligations under this contract.
- This agreement, including but not limited to any matters concerning its validity, construction, enforcement and interpretation, and any matters arising out of, relating to, or concerning this agreement or a breach thereof (together, any ‘Controversy’) shall be governed by the laws of the State of Texas. Purchaser hereby acknowledges, consents and irrevocably submits to Texas jurisdiction for any Controversy. The parties agree that all Controversies shall be brought only in the State courts of Fort Bend County, Texas and the parties irrevocably submit to such Courts; provided, however, that Seller may, in its sole discretion, submit or seek to compel any Controversy to arbitration in Fort Bend County, Texas before the American Arbitration Association (‘AAA’) in accordance with the AAA’s Commercial Arbitration Rules. Purchaser hereby acknowledges and agrees that Seller has a unilateral right to demand arbitration and that, should Seller so demand, arbitration of any Controversy claimed or asserted by either party shall be mandatory. In any proceeding held to determine any Controversy, the prevailing party shall be awarded its attorneys’ fees, costs and expenses incurred, in addition to all other damages
- ANY DESCRIPTION OF THE GOODS OR SERVICES CONTAINED ON ANY QUOTATION, PURCHASE ORDER, OR ACKNOWLEDGEMENT, BILL OF LADING OR SALES INVOICE IS FOR THE SOLE PURPOSE OF IDENTIFICATION, AND DOES NOT CONSTITUTE A WARRANTY THAT THE GOODS OR SERVICES SHALL CONFORM TO THAT DESCRIPTION. THE USE OF ANY SAMPLE OR MODEL IN CONNECTION WITH A SALE OF GOODS OR SERVICES IS FOR ILLUSTRATIVE PURPOSES ONLY AND DOES NOT CONSTITUTE A WARRANTY THAT THE GOODS OR SERVICES WILL CONFORM TO THE SAMPLE OR MODEL. THE SELLER AND ITS SUPPLIERS MAKE NO EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY GOODS OR SERVICES SOLD BY THE SELLER TO THE PURCHASER. THE SELLER AND ITS SUPPLIERS MAKE NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED.
- SELLER’S LIABILITY FOR AN CLAIM OF ANY KIND, INCLUDING ANY SUCH CLAIM RELATING TO THE SELLER’S OR ITS SUPPLIERS’ NEGLIGENCE, OR FOR ANY LOSS OR DAMAGE RESULTING FROM ANY CONTRACT FOR SALE OF GOODS OR SERVICES OR FOR THE PERFORMANCE OR BREACH THEREOF OR RELATING TO THE DESIGN, MANUFACTURE, SALE DELIVERY, RESALE, INSTALLATION, TECHNICAL DIRECTION FO INSTALLATION, INSPECTION, REPAIR, OPERATION OR USE OF ANY GOODS, SHALL IN NO EVENT EXCEED THE PRICE ALLOCABLE TO THE GOODS OR SERVICES OR UNIT THEREOF WHICH GIVES RISE TO ANY SUCH CLAIM, LOSS OR DAMAGE. IN NO EVENT SHALL ANY PENALTY OR LIQUIDATED DAMAGES CLAUSE OF ANY DESCRIPTION BE EFFECTIVE AND BINDING UPON THE SELLER UNLESS SPECIFICALLY APPROVED IN WRITING BY AN EXECUTIVE OFFICER OF THE SELLER. IN NO EVENT SHALL THE SELLER OR ITS SUPPLIERS BE LIABLE FOR SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES AS THOSE TERMS ARE DEFINED IN SECTION 2-175 OF THE UNIFORM COMMERCIAL CODE.