1. In these conditions:
1.1. ‘Seller’ means:
1.1.1. for sales where the USA is nominated on the Agreement to Purchase as the country for intended use, Boto Inc;
1.1.2. for sales where Australia is nominated on the Agreement to Purchase as the country for intended use, Brewbag Ltd;
1.1.3. in any other case, Coldfever International Ltd;
which is the Seller of the Goods.
1.2. ‘Agreement to Purchase’ means the form or other document by which the Goods are ordered from the Seller by the Buyer.
1.3. ‘Buyer’ means the purchaser of the Goods named in the Agreement to Purchase.
1.4. ‘Goods’ means the products and, if any, services specified in the Agreement to Purchase.
1.5. Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law and which by law cannot be excluded, restricted or modified.
2. These conditions (which shall only be waived in writing signed by or on behalf of the Seller) shall prevail over all conditions of the Buyer's order to the extent of any inconsistency.
3. These conditions are part of any contract or order for the sale of Goods by the Seller to any Buyer whether such contract or order is in writing or oral or any combination of writing and oral.
4. Signature of the Agreement to Purchase by or on behalf of the Buyer is an irrevocable offer by the Buyer to purchase the Goods for the price and on any other conditions specified on the Agreement to Purchase.
5. No contract for the supply of Goods comes into existence until the offer by the Buyer is accepted by the Seller.
Terms of sale
6. The Goods and all other products sold by the Seller are sold on these terms and conditions.
7. The cost of any special packing and packing materials used in relation to the Goods are at the Buyer's expense notwithstanding that such cost may have been omitted from any quotation or price list.
8. The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with the Seller within 24 hours from the time of receipt of the Goods by the Buyer.
9. All specifications, drawings, designs and particulars of weights and dimensions specified in any brochure, web site or other material produced by the Seller are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.
10. The descriptions, illustrations and performances contained in catalogs, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
11. Any performance figures given by the Seller are estimates only. The Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.
12. The Goods are delivered FOB for delivery to a port specified in the Agreement to Purchase.
13. The Seller may, at its option, deliver goods CIF to a port specified in the Agreement to Purchase and shall deliver the Goods CIF where that option is specified.
14. Where goods are delivered CIF the Buyer:
14.1. shall be liable for the cost of freight from the point of unloading to its premises or to a warehouse or other storage nominated by it.
14.2. shall be liable to pay any storage costs or demurrage incurred by the Seller as a result of any failure by the Buyer to take delivery of the Goods.
15. The Buyer may nominate some other port or mode of delivery in writing from time to time with the agreement of the Seller provided such nomination is made a reasonable time prior to loading of the Goods. Nothing in this clause shall be taken to mean that the Seller must agree to any change in the place or mode of delivery.
16. Where the Buyer makes any change in the place or mode of delivery any additional cost incurred by the Seller as a result of that change must be paid by the Buyer.
17. The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
18. The Seller is not liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery of the Goods unless such late or non-delivery results from willful breach by the Seller of these terms and conditions or from the Seller's gross negligence.
19. The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is a written addition to the Agreement to Purchase to the effect that the Buyer will not take delivery by instalments.
20. If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
20.1. it is not a repudiation or cancellation of the contract of sale formed by these conditions; and
20.2. the defective instalment is a severable breach that gives rise only to a claim for compensation.
Loss or damage in transit
21. The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not the Seller is legally responsible for the person who caused or contributed to that loss or damage).
22. The Seller must provide the Buyer with such assistance as may be necessary to press claims on carriers so long as the Buyer:
22.1. has notified the Seller and the carriers in writing immediately after loss or damage is discovered on receipt of the Goods; and
22.2. lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the Goods.
Compliance with local laws
23. The Seller does not warrant that any Goods comply with local laws applicable to the resale of the Goods in any jurisdiction including, but without limitation, laws in relation to the standard of the Goods for sale, compliance with any safety standards, packaging and labeling. The Buyer is solely responsible for ensuring that the Goods comply with local laws in the place that the Goods are resold.
24. The Buyer indemnifies the Seller for any claims made or lawsuits against the Seller for any alleged breach of local laws relating to the sale of the Goods.
25. The Seller offers no warranty, promise, assurance or advice that the Goods can be used without restriction, or at all, in any particular jurisdiction or location. Any sale of the Goods to the Buyer is on the basis that the Buyer has satisfied himself that the Goods can be operated on waterways comprising his proposed market or location of use. No warranty relating to the use of the Goods is offered, and the Seller will not be liable for any claim for damages, compensation or any other remedy relating to the use of the Goods or resulting from any restriction on or regulation of the use of the Goods.
26. The Seller's liability for Goods manufactured by it is limited to making good any defects by repairing the defects or at the Seller's option by replacement, within a period not exceeding one (1) calendar month after the Goods have been dispatched so long as:
26.1. defects have arisen solely from faulty materials or workmanship;
26.2. the Goods have not received maltreatment, inattention or interference;
26.3. accessories of any kind used by the Buyer are manufactured by or approved by Seller;
26.4. the seals or packaging of any kind on the Goods remain unbroken; and
26.5.the defective parts are promptly returned free of cost to the Seller.
27. If the Goods are not manufactured by the Seller the guarantee of the manufacturer of those goods is accepted by the Buyer and is the only guarantee given to the Buyer in respect of the Goods. The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to those goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
28. The Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any Goods supplied unless such design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing. In any event the Seller's liability under this clause is limited strictly to the replacement of defective parts in accordance with cl 26 of these conditions.
29. Except as provided in these conditions and to the extent possible by law in any particular jursidiction, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller's negligence or in any way whatsoever.
30. Where Goods are sold in a particular jurisdiction and particular terms and conditions referable to that jurisdiction are referred to in a schedule to these terms and conditions any additional terms and conditions in that schedule become part of these terms and conditions and where there is any inconsistency the terms and conditions in the schedule shall prevail over these terms and conditions.
31. All prices are in United States of America dollars and are payable in that currency.
32. Unless otherwise stated all prices quoted by the Seller are net, exclusive of Goods and Services Tax, Value Added Tax, Sales Tax or any similar consumption tax, charge or excise.
33. Unless otherwise stated all prices quoted by the Seller are net, exclusive of import duties, tariffs or other charges on the import of the Goods into their place of delivery.
34. Prices quoted in any catalog, web site or other publication of the Seller or its agents are those ruling at the date of production of the catalog and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, cost of materials and other charges affecting the cost of production ruling on the date the catalog is made. The Seller reserves the right to vary prices for the Goods at any time.
35. If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer's account.
36. The Seller reserves the right to vary the price payable for the Goods at any time up to acceptance by the Seller of an order by a Buyer. In the event that the price charged is different to the price for the Goods nominated on the Agreement to Purchase the Buyer may, at any time prior to acceptance of an order by the Seller,
36.1. confirm the order; or
36.2. cancel the order.
37. A deposit of 25% of the purchase price is payable by the Buyer ordering the Goods. Where no alternate time is specified in writing, this deposit must be paid within 7 days of signing the Agreement to Purchase.
38. The balance of the purchase price is payable by the Buyer on the notification by the Seller that the Goods are ready to be shipped from the factory. No goods will be shipped until payment for the Goods is received by the Seller.
39. The purchase price in relation to Goods is payable net and payment of the price of the Goods must be made by international letter of credit or telegraphic transfer to an account nominated by the Seller prior the delivery of the Goods unless other terms of payment are expressly stated in writing by the Seller.
40. In the event that the deposit for the Goods is not received on time, any estimate of the date for delivery of the Goods may be postponed. Nothing in this clause should be construed as making any estimate of a time for delivery binding on the Seller.
41. In the event that payment of the balance of the purchase price is not received within 7 days of the date of notification pursuant to cl 38 the Seller reserves the right to sell those Goods to other buyers and the Buyer agrees that any estimate of the date for delivery of the Goods will be postponed. Nothing in this clause should be construed as making any estimate of a time for delivery binding on the Seller.
Rights in relation to Goods - credit sales
42. Where Goods are sold on credit by prior arrangement with the Seller:
42.1. the Seller reserves the following rights in relation to the Goods until all accounts owed by the Buyer to the Seller are fully paid:
42.1.1. ownership of the Goods;
42.1.2. to enter the Buyer's premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
42.1.3. to keep or resell any Goods repossessed pursuant to 42.1.2 above.
42.2. If the Goods are resold, or products manufactured using the Goods are sold, by the Buyer, the Buyer shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of the Seller and shall pay such amount to the Seller upon request. Notwithstanding the provisions above the Seller shall be entitled to maintain an action against the Buyer for the purchase price and the risk of the Goods shall pass to the Buyer upon delivery.
43. Any property of the Buyer in the Seller's possession, custody or control is completely at the Buyer's risk as regards loss or damage caused to the property or by it.
44. The Seller reserves the right to make a reasonable charge for storage if the Buyer does not provide delivery instructions or pay the balance of the purchase price within 7 days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.
45. The Seller is not under any duty to accept Goods returned by the Buyer and will do so only on terms to be agreed in writing in each individual case.
46. If the Seller agrees to accept returned Goods from the Buyer under cl 45, the Buyer must return the Goods to the Seller at the Seller's place of business referred to in the Agreement to Purchase, or to an address nominated by the Seller.
47. The number and type of the Goods to be supplied by the Seller to the Buyer are as identified on the Agreement to Purchase. Any descriptions or images of Goods sold are illustrative and indicative only and do not necessarily accurately depict the size, shape, proportion or color of the Goods or their designs or patterns. Goods as supplied may be different to the size, shape, proportion or color of the Goods or designs or patterns shown in any catalog or description, and designs and logos may be of different sizes, proportions and colors and be located in different positions on the Goods. The Buyer shall make no claim for compensation relating to any variations from any such descriptions or images.
48. No order may be cancelled by the Buyer except with consent in writing and on terms that will indemnify the Seller against all losses.
Place of contract
49. The contract for sale of Goods is made in the place nominated on the Agreement to Purchase as the country for intended use.
50. The parties submit all disputes arising between them to the courts of that place and any court competent to hear appeals from those courts of first instance.