Turbo Service International Ltd
In these Terms and Conditions, the following expressions shall have the following meanings:
(a) ‘the Seller’- Turbo Service International Ltd
(b) ‘the Purchaser’- the person, firm or company which accepts the Sellers quotation or otherwise enters into a contract with the Seller
(c) ‘the Price’- the sum stated in the contract between the Seller and Purchaser as the amount payable to the Seller for the goods and/or services to be provided by the Seller to the Purchaser.
(d) ‘the Contract’ the contract or engagement howsoever arising for the provision of goods and or services by the Seller to the Purchaser.
Notwithstanding anything to the contrary which may appear on the Purchaser’s order or elsewhere, these Terms and Conditions will apply to any contract relating to the subject matter of any quotation or tender from the Seller unless otherwise specifically agreed in writing signed by Purchaser and Seller. The Seller shall not be deemed to have accepted any terms and conditions inconsistent with the Terms and Conditions by reason of its formally accepting the Purchaser’s order and/or proceeding with delivery of any goods and services. If any modification of a particular provision is so agreed, the remaining provisions are nevertheless to apply in so far as they are not specifically excluded or varied. The Purchaser agrees that by accepting delivery of goods and services from the Seller it accepts that the Terms and Conditions apply to such delivery.
2. FORCE MAJEURE
2.1. Subject to 2.2. each Party shall be excused performance of the Contract to the extent to which fulfilment of its obligations is prevented, frustrated, impeded or delayed as a consequence of any legislation, import or export restriction, strike, lock-out or industrial action of any kind, fire, accident, civil disturbance, weather, act of God, order or requisition by any competent authority or any circumstance beyond its control.
2.2. The Party so affected shall ensure that the other party is aware of any such matter as described in paragraph 2.1. and the parties shall consult in good faith as to achieving satisfactory performance of the Contract within the shortest time reasonably practical in all the circumstances. If by reason of any such circumstance performance within a reasonable time becomes impossible either party shall be entitled to terminate the contract by notice in writing to the other, but the Seller shall be entitled to invoice the Purchaser for cost and expense reasonably incurred by the Seller prior to the date of termination.
3. VALIDITY AND ACCEPTANCE
3.1.The Seller intends that, unless previously withdrawn or otherwise stated, every quotation is valid for 30 days from the date thereof. Notwithstanding the foregoing any order placed by the Purchaser shall remain open for acceptance by the Seller unless and until withdrawn by notice in writing from the Purchaser which notice may only be served prior to such acceptance but not earlier than the expiry of  days following the date of order. If the order has not been so withdrawn the Contract will be created (subject always to the provisions of paragraph 1 above) upon the Seller delivering an acknowledgement of order or commencing the delivery of the related goods or services or itself placing orders for any related parts specifically related to the Contract
3.2. In the event that the Purchaser, following acceptance of the order, changes any information provided at the time of enquiry or with the order or provides additional information, that in any such case requires the Seller to incur additional costs and expense or to make any other changes to the services and goods in relation to the Contract then the Seller may promptly by notice of variation in writing to the Purchaser amend the price and other relevant terms as it reasonably considers necessary or notify the Purchaser that it will not proceed with the Contract. In the latter case the Seller shall pay the Purchaser its costs and expenses reasonably incurred.
4. LIMITS OF CONTRACT
Subject to paragraph 3.2 the Seller shall not be bound by any change to the Contract unless in writing signed by both parties.
5.1.Unless otherwise stated in the quotation prices are for delivery ex Seller’s works. Notwithstanding paragraph 2 above where any of the goods to be delivered by the Seller are to be imported, and provided that the Seller has placed the appropriate orders as soon as reasonably practical, any time for delivery of goods and services is deemed to be subject to receipt of the imported goods by the Seller in good time.
5.2Where the delivery is to a site or vessel, the Purchaser is to provide suitable access with a safe and easy approach, lifting tackle for unloading, skilled labour and all other facilities required for getting the goods under cover or into the relevant part of the vessel ready for erection or use. This paragraph shall not be taken to limit the Purchaser’s obligations in relation to site work set out at Clause 20 (b) herein.
5.3.All times stated for delivery or for the carrying out of any installation, repairs, reconditioning or other services are to be treated as estimates only unless the quotation or acceptance of order specifically provides that time is of the essence.
6. DELAY IN TAKING DELIVERY AND CANCELLATION OF ORDER
(a) If the Purchaser fails to take delivery for reason other than circumstances amounting to force majeure as defined in Clause 2 above, any resulting costs and expenses incurred by the Seller including but not limited to demurrage, storage, double handling, insurance during storage etc will be payable by the Purchaser. Without prejudice to the forgoing or to rights accruing to the Seller under any other provisions of these Terms and Conditions, the Seller may at any time after the Seller is ready to deliver the goods and or services give written notice to the Purchaser requiring it to accept delivery within a reasonable time. If the Purchaser for any reason fails to do so, the Seller may by notice in writing to the Purchaser, terminate the contract in respect of such of the goods as remains undelivered by reason of the Purchaser’s failure and the Seller shall pay against the Seller’s invoice such part of the Price as the Seller reasonably considers applicable to the delivered goods and services together with the Seller’s reasonable estimate of the other costs and expense incurred by the Seller in relation to the Contract. In such circumstances the amounts so invoiced shall not exceed in aggregate the Price.
(b) In the event of termination or cancellation of a contract / order by the purchaser, the seller is entitled, at its sole discretion, and not in conflict with 6(a) above, to accept a reduced fee, agreed as a re-stocking fee / handling charge, set at 40% of the contract price. (the contract price being that as quoted for the parts and / or services in full, plus any ancillary costs to include, but not limited to freight, taxes and duties, etc.) on the basis that all parts are returned in their proper and correct condition, as determined solely by the seller. In the event this is not agreeable to the seller, in it’s sole discretion, clause (a) above will apply.
7. EXTRA COSTS
7.1.In the event of any suspension of or delay to the Seller’s performance of the Contract by reason of any act or default by the Purchaser including but not limited to misleading or insufficient instructions, the Price shall be increased to cover any extra costs or expenses incurred by the Seller as a result.
7.2.Duties tariffs or taxes or the like on goods and services wherever imposed are not included in the Price unless expressly stipulated in the Seller’s quotation and if included are always based upon the rates applicable (to the extent reasonably known to the Seller at the date of the quotation and the Seller has the right to adjust the Price by a sum corresponding to any increase or decrease therein
7.3. Goods required to be imported by the Seller are quoted by the Seller at prices based upon the rate of foreign exchange at the date of quotation and the Price may be adjusted by the Seller to reflect changes between such rates and the rate at which the Seller made the payment for the goods concerned.
8. QUALITY ASSURANCE
The Seller operates a quality system designed to meet the requirements of ISO 9001 but does not guarantee that all products and services supplied are sourced from companies registered to ISO 9001.
(a) Where any advice statement or recommendation is made by or on behalf of the Seller in any form whether in connection with the supply erection or installation of goods or provision of other services or otherwise such statement is given in good faith and based on the Sellers experience but no liability of any kind is accepted in relation thereto.
10. LIABILITIES, ACCIDENTS, DAMAGE AND WARRANTY
THE ATTENTION OF THE PURCHASER IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CLAUSE 10 WHICH LIMIT THE LIABILITY OF THE SELLER TO THE PURCHASER. THE PURCHASER ACKNOWLEDGES THAT THESE PROVISIONS HAVE BEEN DRAWN TO ITS ATTENTION AND THAT IT ACCEPTS THAT THE PROVISIONS ARE FAIR AND REASONABLE AND THAT THE SELLER MAY RELY UPON THE SAME AND HAS RELIED UPON THE SAME WHEN PRICING THE QUOTATION.
(a) Subject to the other provisions of this Clause 10, the Seller shall repair or replace (at its election) any goods supplied by the Seller which develop any defect due to faulty design materials or workmanship during the warranty period. Unless otherwise stated in the quotation or acknowledgement of order the warranty period is 12 months from date of delivery or, in the case of delivery being delayed by the Purchaser, 12 months from the date of the Seller notifying the Purchaser that the goods are ready for delivery.
(b) The Seller shall not be responsible for repair or replacement unless the defect is notified in writing to the Seller within 10 working days of its being discovered and (unless the Seller and Purchaser agree terms for repair on board or at other premises) the defective goods are promptly returned to the Seller at the address stated on the quotation all charges prepaid.
(c) The Seller shall not be responsible for repair or replacement to the extent any defect has been caused or contributed to by factors outside normal and proper use servicing and maintenance. Such factors might include but are not limited to accident, impact, failure or fluctuations of electrical power, air conditioning, humidity control, other adverse environmental conditions, incorrect maintenance or running procedures, and use in combination with unsuitable equipment or components not approved by the Seller, or repairs or modifications carried out by third parties without the Seller’s written authority.
(d) The Seller shall deliver the repaired or replacement goods free in the UK, or in the case of goods for export, FOB port of shipment. Goods which have been replaced shall become the property of the Seller.
(e) The Seller shall have no liability for repair or replacement of goods, including repaired or replacement goods, after the expiry of the warranty period. For the avoidance of doubt the warranty period shall relate to the original delivery or delivery notification by the Seller and shall not be extended by the repair or replacement of goods.
(f) Where at the Purchaser’s request, the Seller carries out repairs to goods supplied by the Seller (otherwise than after return of the defective goods to the Seller), the Seller shall be entitled to charge engineers’ travel time at the Seller’s prevailing rates plus any expenses reasonably incurred.
(g) The obligations of the Seller set out in this clause 10 are in place of and exclude all conditions, warranties, or other terms however arising or to be implied by law or other wise as to quality, fitness for purpose, standard of skill and care, compliance with description, or otherwise, so far as is lawfully possible.
(h) Save to the extent of any fraud, or personal injury or loss of life, the Seller shall not be liable to the Purchaser or to any other person seeking to rely upon any contractual obligation or duty of care whether in contract or in tort or arising under any statutory duty or any other act or omission by the Seller in relation to the Contract or in relation to any goods or services provided by the Seller for any loss or damage of any kind arising directly or indirectly from the Contract or the supply, erection or installation of the goods or the provision of any services, or any representation made or advice provided by the Seller including without prejudice to the generality of the forgoing any loss of profit, loss of use or production, loss of clients, loss contracts, of reputation or goodwill or any other economic, indirect, financial or consequential loss or damage.
(i) Without prejudice to any other provision of these Terms and Conditions the aggregate liability of the Seller to the Purchaser howsoever arising shall not exceed 25% of the Price.
(j) Notwithstanding the above limitations and exclusions of the liability of the Seller, where any claim is made against the Purchaser and it reasonably appears to the Purchaser that the claim relates to any act or omission of the Seller then the Seller shall promptly notify the Seller and provide to the Seller all information available to the Purchaser. The Seller may elect in writing to require the Purchaser a) to consult in good faith with the Seller in regard to the Purchaser’s response to the claim and any settlement of the claim and conduct of any related arbitration and proceedings or b) at the Seller’s election at any time to permit the Seller (at its own expense and subject to the Seller providing the Purchaser with an indemnity for claim and costs) the conduct at its own expense of all negotiations for the settlement of the same and any litigation or arbitration that may arise in relation thereto. The Purchaser shall not make any admissions, which might be prejudicial to the position of the Purchaser or the Seller and shall provide all such assistance as the Seller shall reasonably request.
11. PAYMENT, TITLE AND RISK
(a) Unless otherwise expressly agreed the price is strictly net and exclusive of VAT at the rate applicable on the dates of dispatch and payment shall be due within 30 days of invoice.
(b) Notwithstanding any terms for payment agreed between the parties the Seller may, in the event of any default in payment by the Purchaser in relation to the Contract or otherwise or to any third party or upon the Seller being of the reasonable belief that the financial situation or creditworthiness of the Purchaser is unsatisfactory, or in the event of the Purchaser failing, in the reasonable opinion of the Seller, to cooperate fully with the seller in relation to the Contract in a professional and businesslike manner, by notice in writing to the Purchaser suspend delivery of the goods and services until the Purchaser has made payment of the whole or such part of the Price as the Seller shall specify.
(c) If the Purchaser fails (including by failing to pay such sum as may be specified by the Seller under paragraph (b) above, to make arrangements to take delivery of goods and services in accordance with the Contract in accordance with a reasonable offer from the Seller to deliver the same then the Seller may invoice the Purchaser for the goods and services concerned in accordance with the Contract and the Purchaser shall make payment in accordance with paragraph (a) above.
(d) Where delivery is to be made by instalments, the Seller shall raise an invoice for each instalment and payment shall be made accordingly.
(e) The Purchaser shall pay interest at 4% above the Lloyds TSB bank PLC’s standard base rate on the daily balance from the due date for payment until actual receipt of payment.
(f) The risk in loss and damage to the goods shall pass to the Purchaser on delivery unless otherwise specified by the Seller in writing
(g) The ownership of the goods shall remain with the Seller (who is hereby authorised by the Purchaser to recover the same during any such period) until the Seller has received payment in full for the Goods. Pending such payment the Purchaser undertakes to mark or other wise clearly identify the goods as the Sellers and store them separately from its own, and the Seller may enter the Purchasers premises to inspect the goods and ensure that they are so marked or clearly identified. If payment is overdue in whole or in part, the Seller, it employees or agents or contractors, may (without prejudice to any other rights ) recover or resell the goods for which payment has not been made or any part of them and may enter upon the Purchaser’s premises for that purpose
(h) The Seller reserves the right to suspend delivery of goods and services if any reasonable request by the Seller for information or instructions is unresolved after one month from the date it was first made.
(i) Payment in full shall become due immediately upon the commencement of any act or proceedings against the Purchaser relating to the solvency of the Purchaser. The Purchaser shall not in any circumstance be entitled to deduct retain or set off the amount of any claim (whether or not for a liquidated sum) however arising against the Seller’s invoice. In the event that the Purchaser does not make payment in accordance with the payment terms herein then the Seller shall have no liability to the Purchaser for repair or replacement of goods as provided in Clause 10.
(j) The Seller reserves the right to resort to action against any vessel of the Purchaser or any vessel in which the Seller has installed any goods or carried out any services pursuant to the Contract, including the right to seize a vessel, and place a vessel under arrest until all sums owing to the Seller have been met.
12. CLAIMS, QUERIES AND RETURNS
(a) No claims in respect of shortages, or discrepancies in or damage to goods will be accepted unless notified to the Seller in writing within 7 working days of the date of delivery or in the event of a claim for non delivery within 14 days of the date of the Seller’s invoice. The Seller shall have no liability in respect of damage or shortages caused by the act or omission of the Purchaser or of any agent or contractor of the Purchaser or by any third party.
(b) No claim in respect of any invoice as to inaccuracies in price, discount, terms of payment or any other commercial terms will be accepted unless notified to the Seller in writing within 14 days of receipt of the Seller’s invoice.
(c) No claim by the Purchaser that it has not received an invoice will be considered unless notified to the Seller in writing within 7 days from the date of the first statement of account from the Seller identifying such invoice.
(d) In any case referred to in paragraphs (a) (b) (c) or (d) of this Clause where no claim has been notified within the relevant period the Purchaser shall be deemed, as appropriate to the respective paragraph, to have received full and proper delivery of the goods and services and to have received a valid correct and payable invoice.
13. SUSPENSION OF DELIVERIES
Subject and without prejudice to Clause 11 (b) if the Purchaser, being an individual, shall become bankrupt or become subject to any other insolvency procedure or arrangement or being a corporation shall
(1) be the subject of a notice of intention to commence any insolvency proceedings or is in receipt of any insolvency proceedings or shall commence to be wound up (except for the purpose of amalgamation or reconstruction)
(2) make any composition or arrangement with its creditors
(3) become subject to an administration order
(4) have a receiver or administrator appointed in respect of any of its assets
(5) suffers any person who has any encumbrance over any of its assets seeking to enforce the same, or
(6) suffers any event similar to or analagous to any of the above
The Seller may (without being responsible for loss) terminate the contract by notice in writing to the Purchaser and recover any loss or damage it has suffered as a result of such termination, not exceeding the Price, and the Seller may appropriate any sums received from the Purchaser towards such loss and damage.
14. EXPORT RESTRICTIONS AND NON AUTHORISED USE
(a) Unless otherwise agreed in writing by the Seller, all goods and services are supplied on the condition that they are not to be supplied to any other county whether directly or in directly for any application where such supply or application is prohibited by any law or regulation binding or affective there, in the United Kingdom or the country of manufacture
(b) The Seller shall have no obligation under this contract to supply the goods and/or the services until the Purchaser has, where requested by the Seller, supplied to it an End –User certificate in terms satisfactory to the Seller signed by a duly authorised representative of the Purchaser confirming such matters as the Purchaser shall reasonably require.
(c) The End-User certificate referred to in paragraph (b) above shall form part of the contract and breach by the Purchaser of any of the provisions of paragraph 14(a) above or non compliance by the Purchaser or any third party with any statement in the End-User certificate in any material respect shall entitle the Seller
(1) without being responsible for loss to refuse further performance under the contract.
(2) to recover from the Purchaser any loss or damage it has suffered as a result (not exceeding the Price) and the Seller
may appropriate towards it loss and damage any sums for which it would otherwise have to account to the Purchaser.
(d) The Purchaser acknowledges that governmental regulations of more than one Country may prevent or restrict the export of the goods to other countries. Further information will be provided on request but the Purchaser agrees to abide by any such regulations that may exist and to indemnify the Seller against any actions costs demands or expenses resulting from any failure by the Purchaser to do so.
(e) Where supply of the goods or services is subject to a requirement to obtain an export and / or import licence the Seller shall apply for such licence only after all necessary documentation for the application has been provided by the Purchaser who shall furnish such documentation within a reasonable time after acceptance by the Seller of the Purchasers order. Any delay in obtaining such licence shall automatically extend delivery dates as necessary without liability to either party save to the extent the act or omission of such party has caused the delay. If a licence is not guaranteed within a reasonable time or is revoked by the appropriate authorities the contract maybe cancelled by the Seller without liability by the Seller for damages of any kind. If such licence is not guaranteed or is revoked in either case by reason of the act or default of the Purchaser the Seller may in addition to its right of cancellation recover from the Purchaser any loss or damage it has suffered as if paragraph (c)(2) above applied
The Purchaser agrees to indemnify and holds the Seller harmless for all loss, cost or damage incurred by the Seller as a result of any negligence or misuse (by the Purchaser or any agent or contractor or client of the Purchaser) in relation to the goods supplied by the Seller.
No provision of these Terms and Conditions shall be considered waived or varied by either party unless confirmed in writing by duly authorised representatives of both parties. No such waiver shall be a waiver of any past or future default, breach or modification of these Terms and Conditions. The non-enforcement of these Terms and Conditions by either party shall not be construed as a waiver of that party’s rights and obligations.
17. LEGAL INTERPRETATION
The contract shall in all respects be construed and operate in accordance with English law and is subject to the exclusive jurisdiction of the English courts.
18. EXCHANGE PARTS
Where the goods are sold on an exchange basis
(a) Purchaser undertakes to return to the Seller’s works, freight prepaid the used parts (where used parts are defined
as those which are being exchanged) within 2 months from the invoice dates.
(b) If the used parts are not returned within the period specified in sub-clause (a) above or if the used parts are
beyond economic repair, the Purchaser shall become liable for, and the Seller shall invoice, the normal price of the
parts, less the value already invoiced.
(c) The Seller shall be entitled to charge administration costs and late return premium, should the used parts be
returned later than within the period specified in sub-clause (a) above
19. SITE WORK
(a) To the extent not expressly provided for and priced in the Contract;
(1) all site work is chargeable in accordance with the Seller’s schedule of service rates or as per quotation if applicable, which is available on request
(2) upon completion of the site work the Seller shall complete a time sheet to record hours spent. Chargeable hours shall include waiting time when the Seller’s engineer is unable to proceed with the work for reasons outside the Sellers reasonable control
(b) the Purchaser shall be responsible for providing all necessary permits, documentation and access to the work site together with all necessary utilities, lifting apparatus, specialist tools, ladders, platforms, etc to enable the service to proceed in a safe and effective manner. In addition the Purchaser shall provide specialist labour to assist in lifting the goods or related equipment and making it safe to work upon, together with any labour required for cleaning, dismantling and reassembling. The Purchaser shall provide suitable washing and toilet facilities and any secure storage that may be required
(c) In the event of illness or accident at site the Purchaser shall be responsible for ensuring that suitable medical facilities are promptly made available as necessary.