1. Terms of sale
These container sales terms (the “Terms”) set out the terms on which Seller agrees to sell and Buyer agrees to buy the containers (hereafter “Equipment”) described in the invoice issued by the Seller to the Buyer (the “Invoice”).
Prices on the Equipment specified in the Invoice are exclusive of all city, state, provisional and federal taxes, duties, fees and charges of any kind including, but without limiting the generality of the foregoing excise taxes, taxes on manufacture, sales, receipts, occupation, importation, use and similar taxes. All taxes, fees, duties, and charges are for the account of the Buyer (even if originally assessed to the Seller), who is solely responsible for the payment of all those amounts.
3. Transfer of risks
Unless otherwise specified, all sales are made Ex Works Seller’s specified location.
4. Transfer of ownership
Ownership to the Equipment shall pass to Buyer after payment of the amount stated on the Invoice (the “Purchase Price”) to Seller. The Purchase Price shall be paid without any set off, counter claim, deduction or stay of execution.
5. Substitution of Equipment
Buyer understands and agrees that the specific piece of Equipment requested for purchase may not be the specific Equipment ultimately released to Buyer, however, in the event that the Equipment initially invoiced is not available at the time of pick-up, Seller will tender a like piece of Equipment of equivalent condition or refund Buyer’s Purchase Price.
6. Storage and handling
Buyer shall pick-up all Equipment within seven days of payment. After the seventh day from placement of order, Buyer is responsible for all storage and handling fees on the Equipment. Buyer is required to call the Seller at least twenty four hours prior to pick-up to verify availability of the Equipment and ability to retrieve. Failure to contact the Seller at least twenty four hours prior to pick-up shall result in a waiver of claims for damages against Seller or its affiliates or agents relating to unavailability of Equipment.
Unless otherwise specifically agreed with Seller, Buyer is responsible for all remaining “Neutralization” (i.e. removal of all prefixes, identification system check digits, names and addresses, logos, decals, markings, designs, symbols or like items, as well as ACEP markings as appropriate) of Equipment immediately after transfer of title pursuant to clause 4. Buyer is aware that Equipment is not subject to any ‘fit-for-purpose’ warranty claim even if the Equipment has a CSC plate pursuant to clause 9. Buyer must upon request from Seller provide proof of “Neutralization”. Seller reserves the right to repossess the Equipment in case it is not neutralized in breach of this clause 7, without any compensation to Buyer.
8. Customs clearance
Unless otherwise specifically agreed with Seller, Buyer is aware that, at the time of transfer of ownership the Container(s) has not been brought into free circulation and all Container(s) remain as “non-domesticated goods”. In order to bring the Container(s) into free circulation it is the Buyer’s responsibility to arrange for all necessary customs clearance of the Container(s) and account for import duties & VAT. Buyer must upon request from Seller provide proof of “Customs Clearance”. Seller reserves the right to repossess the Equipment in case it is not customs cleared in breach of this clause 8, without any compensation to Buyer.
9. Disclaimer of warranties
All sales are made “as is, where is”. Seller hereby disclaim all warranties, express, implied, or statutory, including without limitations and condition or warranty of satisfactory quality, merchantability or fitness for a particular purpose or any warranty otherwise provided by statute.
Seller shall under no circumstances be liable pursuant to these Terms for any loss of profits or consequential, special, incidental, indirect or punitive damages, whether based upon breach, negligence, strict liability, tort, breach of contract or any other theory, or for failure to perform their obligations under these Terms. Seller’s sole liability hereunder for any and all loss or damage to Buyer based upon breach of contract or tort shall be limited to and shall in no event in the aggregate exceed Buyer’s purchase price of the particular Equipment with respect to which losses, damages, expenses or costs are claimed. Seller shall not, under any circumstances, be liable for any damages, costs or expenses paid or incurred by Buyer on account of any imperfections, deviation from specifications or other defects impairing the quality, value or suitability for any purpose of any Equipment sold hereunder, whether caused by Seller’s negligence, strict liability acts or omissions, or otherwise. No statement or recommendation made or assistance given by Seller or their representatives, either orally or written, to Buyer, its customers or agent or other person in connection with the purchase by Buyer, shall constitute a waiver by Seller of any provisions hereof or affect Seller’s liability as herein defined; and no such statement, recommendation or assistance that is not expressly required by the provisions of these Terms shall subject Seller to any liability of any nature whatsoever.
Buyer and/or its assignees or successors will indemnify, defend and hold harmless Seller and its affiliates (including directors, officers, employees and agents thereof) for any damages or liabilities whatsoever incurred in relation to the Equipment subsequent to the time of delivery, including but not limited to in relation to lack of or incorrect customs clearance of the Equipment pursuant to clause 8.
12. Set off
Seller may set off from any amount otherwise due to Buyer any amount owed or due by Buyer to Seller including but not limited to any unpaid part of the Purchase Price, storage and handling charges and administrative fees.
No variation or amendment of these Terms shall be valid unless committed to in writing.
14. Law and jurisdiction
These Terms shall be governed by and construed in accordance with English law and all disputes arising hereunder shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country. Alternatively and at the Seller’s sole option, the Seller may commence proceedings against the Buyer at a competent court of a place of business of the Buyer.