These Standard Terms and Conditions for the Sale of Goods (the "Terms") are applicable to all quotes, bids and sales of products and goods (the "Goods") by Sea Further ("SF"), however, the price, quantity and Delivery Location (as defined below) for the Goods may be separately agreed and/or set forth in a quote delivered by SF, an order issued by the applicable customer ("Customer") and accepted by SF or some other communication between SF and the customer (such agreed price, Delivery Location and quantity, together with these Terms, the "Agreement").
- Terms of Agreement Prevail Over SF’s Purchase Order: The parties intend solely for the express terms and conditions contained in this Agreement. In the event of a conflict between these Terms and any term or condition in any other document, website, order or communication, these Terms shall control. Any terms and conditions which seek to add to this Agreement, including any terms or conditions stated on an order or website, shall have and be given no effect. These Terms supersede all prior oral or written agreements, proposals, discussions, correspondence, representations, warranties and covenants. No course of prior dealings, acceptance or acquiescence in a course of performance and no usage of the trade shall be relevant to supplement, explain or modify this Agreement. All representations, promises, warranties or statements by an agent or employee of SF that differ in any way from this Agreement hereof shall be given no effect or force. No waiver or alteration of Terms shall be binding unless in writing signed by an authorized employee of the SF. Notwithstanding the foregoing, if SF and customer have separately negotiated and entered into a separate agreement signed by both parties (“Separate Agreement”), such Separate Agreement shall control over any conflicting term or condition of this Agreement.
- Ordering Procedure:
- 2.1 Purchase Orders: By issuing an order for Goods to SF, the Customer makes an offer to purchase such Goods pursuant to this Agreement.
- 2.2 Acceptance, Rejection and Cancellation of Purchase Orders:SF has no obligation to accept any order; however, SF may accept an order (whether submitted by the customer or via acceptance of a bid or quote) by confirming the order in writing or by delivering the applicable Goods to the customer, whichever occurs first (each accepted order, an “Order”). SF may reject or cancel an Order, which it may do without liability or penalty, and without constituting a waiver of any of SF’s rights or remedies under this Agreement
- 2.3 Rush Orders Any Order placed with less than four (4) business days’ notice for delivery may incur a rush order fee which may be up to fifteen percent (15%) additional charge over the prices stated for the Goods.
- 2.4 Cancellation or Modification: Upon acceptance of an Order, the customer shall be obligated to purchase from SF quantities of Goods specified in such Order. Cancellation or modification of all or part of any Order is subject to SF’s prior written consent in each instance. If cancellation or modification is allowed, the customer agrees to pay to SF all expenses incurred, and damage sustained by SF as a result of the cancellation or modification. The compensation cannot exceed the order price.
- 1. Shipment, Delivery, Acceptance and Inspection:
- 3.1 Shipment: SF shall select the method of shipment of and the carrier for the Goods. SF, in its sole discretion, without liability or penalty, may make partial shipments of Goods to the customer. Each shipment will constitute a separate sale and the customer shall pay for the Goods shipped, in accordance with the payment terms specified in this Agreement, whether such shipment is in whole or partial fulfillment of an Order. The customer agrees to use first-in- first-out inventory practices with respect to the Goods it purchases from SF.
- 3.2 Delivery: Unless otherwise agreed to in writing by the parties, SF will at customer’s cost and expense deliver the Goods, at the location specified in the Order (the “Delivery Location”), using SF’s standard methods for packaging and shipping. All SF deliveries must be unloaded within two (2) hours of arrival at Delivery Location. The customer will be charged an hourly rate of $40.00/hour for every hour beyond the 2-hour maximum that is needed to unload the Goods. This additional charge will be applied to the invoice.
- 3.3 Late Delivery: Any time quoted for delivery is an estimate only; provided, however, that SF shall use commercially reasonable efforts to deliver all Goods within a reasonable time consistent with the Order.
- 3.4 Inspection: The customer shall inspect Goods received under this Agreement within three (3) business days following receipt of such Goods (“Inspection Period”) and either accept or, only if any such Goods are Nonconforming Goods (as defined below), reject such Goods. If the customer discovers any Nonconforming Goods, the customer must request an authorization from SF to return the Nonconforming Goods (the “Return Material Authorization”). In order for SF to receive a Return Material Authorization, the customer shall provide SF with the following information prior to expiration of the Inspection Period: (a) the part number or description of the Good, (b) the Order number, (c) the quantity of each Good to be returned, and (d) a detailed description of all defects and nonconformities. All defects and nonconformities that are not so specified will be deemed waived by SF, and such Goods shall be deemed to have been accepted by the customer. Upon customer’s receipt of the Return Material Authorization from SF, the customer shall return the Goods to SF within a number of days and in accordance with the Return Material Authorization. If the customer timely requests a Return Material Authorization, and returns the Nonconforming Goods to SF in accordance with the Return Material Authorization, SF shall determine, in its reasonable discretion, whether the Goods are Nonconforming Goods. If following receipt of the Goods in accordance with a Return Material Authorization SF determines that such Goods are Nonconforming Goods, SF, in its sole discretion, shall either: (i) replace such Nonconforming Goods with conforming Goods; or (ii) refund to the customer such amount paid by the customer to SF for such Nonconforming Goods. The customer shall ship, at SF’s request and expense, all Nonconforming Goods to SF’s designated location. If SF exercises its option to replace Nonconforming Goods, SF shall ship to the Delivery Location, at customer’s expense and risk of loss, the replacement Goods. The remedies set forth in this section 3.5 are SF’s exclusive remedies for the delivery of nonconforming goods, subject to SF’s rights under section 6.3 with respect to any such goods for which the customer has accepted delivery under this section
- 3.5 Nonconforming Goods: means any goods received by the customer from SF pursuant to an Order that: (A) do not conform to the Goods listed in the applicable Order; (B) do not conform to the Specifications; or (C) exceed (and then only to the extent the goods exceed) the quantity of Goods ordered by SF pursuant to an Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of this Agreement.
- Price and Payment:
- 4.1 Price: the customer shall purchase the Goods from SF at the prices set forth in the Order, or if no prices are set forth in the Order at SF’s then-current list price for such Goods (the "Prices").
- 4.2 Shipping Charges, Insurance and Taxes: All Prices are exclusive of, and SF is solely responsible for, and shall pay all taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any governmental authority, with respect to, or measured by, the manufacture, sale, shipment, use or Price of the Goods (including interest and penalties thereon); provided, however, that SF shall not be responsible for any taxes imposed on, or with respect to, the customer’s income, revenues, gross receipts, personnel or real or personal property.
- 4.3 Payment Terms: the customer shall pay to SF all invoiced amounts within thirty (30) days from the date of such invoice. The customer shall make all payments in EUR euros by wire transfer. In some cases, SF may also accept payment via credit card or other payment card subject, and, in such instances, the customer hereby agrees to pay an additional 3% of the amount of such payment.
- 4.4 Late Payments: the customer shall pay interest on all late payments calculated daily and compounded monthly, at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. The customer also shall reimburse SF for all reasonable costs incurred by SF in collecting any late payments, including attorneys’ fees and court costs. In addition to all other remedies available under this Agreement or at law (which SF does not waive by the exercise of any rights under this Agreement), if the customer fails to pay any undisputed amounts when due under this Agreement, SF may suspend the delivery of any Goods.
- 4.5 No Set-off Right: the customer shall not have, and acknowledges that it does not have, any right, under this Agreement, any Order, or any other agreement, or under law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to SF.
- Term; Termination:
- 5.1 Termination: In addition to any remedies that may be provided under this Agreement, SF may terminate this Agreement with immediate effect upon written notice to the customer, if the customer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- 5.2 Effect of Expiration or Termination: Any termination under this Agreement automatically operates as a cancellation of any deliveries of Goods to the customer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Goods had been accepted by SF. With respect to any Goods that are still in transit upon termination of this Agreement, SF, in its sole discretion, may require that all sales and deliveries of such Goods be made on either a cash-only or certified-check basis.
- Limited Warranty:
- 6.1 Limited Product Warranty: Goods sold by SF are subject to the then-current standard limited warranties available on SF’s website at the time of delivery of the Goods (the “Limited Warranties”).
- 6.2 Warranty Limitations: The Limited Warranties do not apply to any Good that (a) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by SF; or (b) have been reconstructed, mixed or altered by anyone other than SF.
- 6.3 SFs Exclusive Remedy: ection 6.3 contains SF’s exclusive remedy for a breach of Section SF’s remedy under this Section 6.3 is conditioned upon SF’s compliance with its obligations under this Section 6.3. During the warranty period, with respect to any Goods alleged to be in breach of Section 6.1: (a) the customer shall notify SF, in writing, of any alleged claim or defect within ten (10) days from the date the customer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable warranty period); (b) the customer shall obtain a Return Material Authorization in accordance with Section 3.5 and ship, at SF’s request and expense, such allegedly defective Goods to SF’s designated location for inspection and testing by SF; (c) if SF’s inspection and testing reveals that such Goods are defective and any such defect has not been caused or contributed to by any of the factors described under Section 6.1 above, SF, in its sole discretion and at its expense, shall replace such defective Goods; and (d) SF shall ship to the customer, at SF’s expense, the repaired or replaced Goods to the Delivery Location. This section 6.3 sets forth SF’s sole remedy and the customer’s entire liability for any breach of the limited product warranty set forth in this section 6.
- 6.4 Disclaimer of other warranties; non-reliance: Except for the express warranties set forth in this section 6 (a) neither SF nor any person on SF’s behalf has made or makes any express or implied representation or warranty whatsoever, either oral or written, including any warranties of merchantability, fitness for a particular purpose, title, or non-infringement, whether arising by law, course of dealing, course of performance, usage of trade or otherwise, all of which are expressly disclaimed; and (b) SF acknowledges that it has not relied upon any representation or warranty made by SF, or any other person on SF’s behalf, except as specifically provided in this section 6
- Limitation of Liability:
- 7.1 No liability for consequential or indirect damages: In no event shall SF or its representatives be liable for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues or diminution in value, arising out of or relating to any breach of this agreement, regardless of (a) whether such damages were foreseeable, (b) whether or not the customer was advised of the possibility of such damages and (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
- 7.2 Maximum liability for damages: In no event shall SF’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to SF pursuant to the applicable order giving rise to the claim.
- 7.3 Assumption of risk: Without limiting the generality of the foregoing, the customer assumes all risk and liability for the results obtained by the use of any goods in the practice of any process, whether in terms of operating costs, general effectiveness, success or failure related to the use of such goods.
- Intellectual Property Rights: the customer acknowledges and agrees that all intellectual property rights relating to the manufacturing of the Goods are the sole and exclusive property of SF or its third party licensors, and the customer shall not acquire any ownership interest in any of SF’s intellectual property rights under this Agreement. Any goodwill derived from the use by the customer of SF’s intellectual property rights inures to the benefit of SF or its third-party licensors. Without limiting the foregoing, all tooling, dies, test and assembly fixtures, gauges, jigs, patterns, casting patterns, cavities, molds, and documentation (including engineering specifications and test reports) used by SF in connection with its manufacture and sale of the Goods, together with any accessions, attachments, parts, accessories, substitutions, replacements and appurtenances thereto are owned by SF (“SF Tooling”) and the customer has no right, title, or interest in or to any of the SF Tooling.
- Confidentiality: All non-public, confidential, or proprietary information of SF, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that SF discloses to the customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Agreement, is confidential, solely for the use of performing the Agreement, and may not be disclosed or copied unless authorized in advance by SF in writing. Upon SF’s request, the customer will promptly return all documents and other materials received from SF. The customer will be entitled to injunctive relief for any violation of this Section 10, without having to post bond or establish the insufficiency of a remedy at law. This Section 10 does not apply to information that is: (a) in the public domain; (b) known to the customer at the time of disclosure; or (c) rightfully obtained by the customer on a non-confidential basis from a third party.
- Miscellaneous:
- 10.1 Relationship of the Parties: The relationship between SF and the customer is solely that of vendor and vendee, and are independent contracting parties.
- 10.2 Survival; Statute of Limitations: o In no event shall SF’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to SF pursuant to the applicable order giving rise to the claim.
- 10.3 Severability: If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to affect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- 10.4 Right to Manufacture and Sell Competitive Goods: This Agreement does not limit SF’s right to manufacture or sell, or preclude SF from manufacturing or selling, to any person or entity, or entering into any agreement with any other person or entity related to the manufacture or sale of, the Goods and other goods or products that are similar to or competitive with the Goods.
- 10.5 Waiver: No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of SF. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement: (a) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or (b) any act, omission or course of dealing between the parties.
- 10.6 Assignment: the customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of SF. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating party of any of its obligations under this Agreement.
- 10.7 Force Majeure: SF will not be liable for any failures or delays caused by strikes, differences with workers, or any causes beyond the reasonable control of SF, including but not limited to fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where delays or failures are caused by labor difficulties, SF will not be obligated to seek or obtain any settlement that, in SF’s sole judgment, is not in SF’s best interest
- Personal data protection: 1. SF shall comply with the legislation applicable to the protection of nominative information and (b) the General Data Protection Regulation (EU 2016/979 of 27th April 2016) (“GDPR”) and any national law or regulation applicable pursuant thereto (together, the “Data Protection Law”) when processing Personal Data (as such term is defined in Data Protection Law) under this Agreement. SF undertake to fulfil all the obligations imposed on the Controller for GDPR purposes.
SF acknowledges that Personal Data may be processed by it for the purposes of or in connection with (a) the performance of this Agreement, (b) applicable laws and regulations as well as requests and communications from competent authorities; and/or (c) internal administrative and accounting purposes.
The Personal Data shall be retained as long as it is necessary for the duration of the Agreement and in compliance with the applicable laws and regulations.
- Governing Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the law of Principality of Monaco and the parties hereby submit to the exclusive jurisdiction of the Courts of the Principality of Monaco.
- Choice of language: It is by the express intention of the parties hereto that the present Agreement and all its related documents to be drafted in English. If this Agreement is nevertheless translated into any other language, then the English language version of this document will control in the event of any disagreement over any such translation.
