Terms and Conditions for the Supply of Goods AND SERVICES
Fortuna Zingara Ltd (“FZL”, a limited company registered in England and Wales with company number 01761374 and with its registered office at Internation House,142 Cromwell Road ,Kensington London SW7 4EF (United Kingdom) supplies customers with goods and services upon and subject to the following Terms and Conditions (“Conditions”), as amended from time to time.
THE CUSTOMER’S ATTENTION IS DRAWN IN PARTICULAR TO CLAUSE 10.
In these Conditions, the following definitions apply:
||the person or firm who purchases the Goods and Services from FZL.
||the porcelain and/or ceramic tiles or any other products as may be offered for sale by FZL from time to time, as set out in the Order. Technical Specification Data for the Goods is provided in the FZL Catalogue, as updated from time to time.
||the order placed by the Customer for the Goods and Services, which may be in a purchase order form, letter or email of the Customer or by telephone call from the Customer to FZL.
||any of the following, as required by the Customer and specified in the Order:
(a) arranging transport from the FOB port of arrival to Customer’s premises as instructed by the Customer;
(b) arranging transport for Cost, Insurance and Freight contracts (CIF) from arrival port ramp to Customer’s premises as instructed by the Customer;
(c) arranging transport for Cost and Freight Contracts (C&F) from arrival port ramp to Customer’s premises as instructed by the Customer;
(d) arranging transport for Less than a Container Load (LCL) ex-factory to Customer’s premises as instructed by the Customer (NB: there will be no discount from FOB prices);
(e) arranging transport by Air Freight:
(i) based on a full box load; or
(ii) based on Less than a Container Load (LCL) where pickup will be ex-factory;
In each of (e)(i) and (ii) there will be no discount from FOB prices.
(f) All Services are subject to a cost quotation which will be issued by FZL on request.
In these Conditions, the following rules apply:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors or permitted assigns.
Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes faxes and emails.
A reference to a clause is a reference to a clause of these Conditions, unless expressly stated otherwise.
Expressions that are defined in Incoterms 2010 shall bear the same meanings when used in these Conditions.
The contract for the supply of Goods and Services will be formed when the Customer accepts the proforma invoice issued by FZL, together with these Conditions, within seven (7) days of their receipt.
Supply of Goods and Services
FZL will use all reasonable endeavours to supply the Goods and Services within the timescale agreed with the Customer. However, dates quoted for delivery are approximate only, and time of delivery is not of the essence.
4.1 Prices of Goods are in accordance with current FZL price lists from time to time.
4.2 Prices will be specifically agreed with the Customer in each case.
4.3 All sales are made on an FOB basis, unless otherwise agreed.
4.4 FZL will endeavour to give existing Customers 6 months’ notice of changes in the prices of existing series of Goods.
Payment of invoices
5.1 Customers with an agreed credit term must, unless otherwise agreed, pay in full within 60 days of the date of the commercial invoice issued by FZL and in accordance with the instructions given on the commercial invoice.
5.2 Customers without an agreed credit term must pay in accordance with the instructions given on the proforma invoice/commercial invoice and ensure that full payment of the amount due reaches the specified FZL bank account before the Goods are loaded on the ship.
The Customer and/or the Customer’s agent will receive:
6.1 Express bill of lading by telex release; and
6.2 Commercial invoice.
Handling and Storage
7.1 The Customer and their staff must wear gloves and protective glasses when handling the Goods.
7.2 Goods must be stored in clean, dry and covered premises.
7.3 Pallets are made of wood and comply with the IPPC standard.
7.4 Pallets may only be stacked one upon another, as each pallet weighs approximately 1.2 tonnes (1200 kg).
8.1 The Customer’s agent shall liaise with the factory to provide the container for the Goods on time.
8.2 The Customer or its agent shall arrange transportation insurance, unless otherwise agreed.
8.3 The Customer or its agent shall arrange transport from the ship to the Customer’s premises, unless otherwise agreed.
9.1 Any complaint with regard to the Goods must be made within 14 days of the Goods arriving at the Customer’s premises.
9.2 Any complaint must be in writing and accompanied with photographs evidencing the matters complained of.
9.3 FZL must be given a reasonable opportunity to inspect any allegedly faulty Goods.
9.4 The Customer shall, if so requested by FZL, return the allegedly faulty Goods to FZL at FZL’s premises.
9.5 If FZL accepts that any of the Goods supplied to the Customer are faulty, FZL shall, at its option, repair or replace such faulty Goods or refund the price of the faulty Goods in full.
Limitation of liability
10.1 Nothing in these Conditions shall limit or exclude the liability of FZL for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
fraud or fraudulent misrepresentation; or
any matter in respect of which it would be unlawful for FZL to exclude or restrict liability.
10.2 Subject to clause 10.1:
FZL shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the supply of Goods and Services to the Customer;
(b) the total liability of FZL to the Customer in respect of all other losses arising under or in connection with the supply of Goods and Services to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods supplied by FZL to the Customer.
Title and risk
11.1 The risk in the Goods shall pass to the Customer on completion of delivery.
11.2 Title to the Goods shall not pass to the Customer until the earlier of:
FZL receives payment in full (in cash or cleared funds) for the Goods and any other goods that FZL has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 11.4.
11.3 Until title to the Goods has passed to the Customer, the Customer shall:
store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the property of FZL;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured against all risks for the full price from the date of delivery; and
give FZL such information relating to the Goods as FZL may request.
11.4 The Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before FZL receives payment for the Goods. However, if the Customer resells the Goods before that time:
it does so as principal and not as the agent of FZL; and
title to the Goods shall pass from FZL to the Customer immediately before the time at which resale by the Customer occurs.
Neither party shall be liable for any failure or delay in performing its obligations to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
13.1 Severance: if any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.
13.2 Waiver: a waiver of any right or remedy under these Conditions or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other remedy.
13.3 Variation: except as set out in these Conditions, no variation of any contract between FZL and the Customer, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by FZL.
13.4 Governing Law: these Conditions, and any dispute or claim arising out of or in connection with any contract subject to these Conditions, shall be governed by and construed in accordance with the laws of England.
13.5 Jurisdiction: each of FZL and the Customer agrees irrevocably that the courts of England shall have non-exclusive jurisdiction to settle any dispute or claim arising between FZL and the Customer.