1.1 “Buyer” means the person, firm or Company placing an order with the Company.
1.2 “The Company” means Topper Sailboats and East Coast Sailboats, Inc. DBA Topaz Sailboats and/or OBX Sailing School is subsidiary or associate companies.
1.3 “Products” means all equipment, materials and services which are subject of the Buyer’s order in which are to be supplied to the buyer by the Company under these Conditions of Sale.
1.4 “Contract” means the contract for the supply if the Products formed by the Company’s acceptance of the Buyer’s order.
1.5 “Carrier” means any person, firm or company engaged by the Buyer or the Company under a contract for the carriage of the products.
2. Formations of Contract
2.1 There shall be no contract until the Company accepts the Buyers order.
2.2 The prices, specifications, delivery times or any other information concerning the Products contained in any quotations given by the company to the Buyer are commercial estimated only and are not binding on the Company and may be modified by the Company at any time without notice to the Buyer.
2.3 All orders are accepted subject to these conditions. No terms or conditions put forward by the Buyer or contained in any order form shall be binding on the Company.
2.4 The Buyer acknowledges that these conditions (and any other additions or amendments thereto agreed in writing by the company) constitutes the entire matter of the Contract and that there are no other representations, warranties, conditions, terms or obligations, whether written or oral, express or amplified, by custom or otherwise. It is the responsibility of the Buyer to ensure that all such specific details are correct and accurate and discrepancies must be notified to the Company immediately upon receipt.
2.5 The Buyer acknowledges that no order once accepted by the Company, can be cancelled in whole or in part without the prior written consent of the Company.
3.1 Unless the company, shall otherwise expressly agree in writing the price for the products shall be the price in effect at the time of shipment of the products.
3.2 Prices are exclusive of all VAT, taxes and duties and delivery charges which shall be solely for the Buyer’s account.
4.1 Unless the Company shall allow the Buyer credit payments terms as an approved account in accordance with clause 4.2 below, payment of the price for the product shall be made in full by the buyer to the company in pounds sterling and the Company’s obligations under the contract are wholly upon such payment being made. All such payments may at the Company’s option be appropriated to the Contract or any other contract between the Company and then Buyer due for payment.
4.2 The company may in its sole discretion (and subject to receipt of such satisfactory references as the Company may require) designate to the Buyer as an approved account and in any such case unless the Company shall other-wise direct, payment of the price for the products shall be made in full by the Buyer to the Company in US Dollars by no later than 30 days from date of Invoice or delivery of the Products to the buyer, whichever is earlier or, in the event that the buyer’s shipping instructions are not received as required by the Company or shipment is held on the buyer’s request, of notification by the Company that the Products are ready for delivery. The Company expressly reserves the right in is sole discretion to refuse to designate the Buyer as an approved account, to withdraw such designation at any time without notice and to require payment in accordance with clause 4.1 above notwithstanding such designation including, with respect to future deliveries of the Products, where delivery is by installment.
4.3 Without prejudice to the Company’s other rights in the event that any payment from the Buyer is overdue, the Company reserves the right to disallow any discount otherwise available to the Buyer therein and to charge interest on any overdue payment to be added to the amount outstanding at an annual rate of three percent (3%) above the base lending rate of US Prime Lending Rate (Interest Rate) from time to time accruing on a day to day basis, compounded monthly, until the Company has received payment in full.
4.4 The buyer shall neither withhold payment of any amount due under the contract in respect of any disputed claim for damage to the products or any other alleged breach of contract by the Company, nor shall it be entitled to exercise a right to set off.
4.5 The company may cancel the contract if the Buyer shall suffer any distress or execution to be levied on its goods or if it makes any arrangement with its creditors or enters into voluntary or compulsory liquidation, or has a receiver, manager or administrator appointed over any of its property or assets, or if the buyer being an individual shall commit and act of bankruptcy or have a receiving order made against him.
4.6 If any payment from the Buyer to the Company under the contract is overdue, the Company may suspend further deliveries under the Contract with the Buyer and if such payment shall remain in arrears for more than 14 days the Company may cancel this contract with the buyer in whole or in part without prejudice to its other rights and without incurring any liability to the Buyer.
4.7 Any advance payment made by the Buyer is a deposit and not a part payment.
4.8 Your payment and personal information is always safe. Our Secure Sockets Layer (SSL) software is the industry standard and among the best software available today for secure commerce transactions. It encrypts all of your personal information, including credit card number, name, and address, so that it cannot be read over the internet.
5. Design and Specifications
5.1 All drawings, photographs, illustrations, performance, data, dimensions, weights and other technical information, specifications and particulars of the products are published by the company in the belief that they are as accurate as reasonable possible but are not to be treated as being or as forming part of the Contract. It is the responsibility of the Buyer to ensure the accuracy of all such materials and information and the Company accepts no liability in this respect. All such material and information is copyright and may not be disclosed to third parties without the company’s consent in writing.
5.2 Where any order accepted by the Company is subjected to the approval by the Buyer of drawings, photographs or any other conditions, such as approval shall not be unreasonably withheld or delayed.
6.1 All delivery times are best estimates only and, whilst the Company will endeavor to avoid delay, the company shall under no circumstances whatsoever be liable to the Buyer for any loss or damage whether direct, indirect or consequential, arising from delay in performance of the contract.
6.2 If the Company is unable to perform the whole or part of the Contract due to any cause or event beyond its reasonable control including (without limitation) acts of God, acts of government, industrial action, severe weather and default of suppliers to any such cause or event whatsoever the Company may at its option by notice in writing to the Buyer cancel to suspend the contract in whole or in part without liability and without prejudice to the company’s right to receive payment of the price of all products previously delivered or work already done.
6.3 The company may deliver by installments. Each installment will be considered a separate independent transaction and payment will be made by the buyer accordingly. Failure by the Buyer to accept or pay for any installment may be treated by the Company as a repudiation of the Contract.
6.4 Unless the Company shall otherwise expressly agree in writing, delivery of the Products by the company to the Carrier shall constitute delivery of the Products by the Company to the Carrier or, if Buyers shipping instructions are not received as required, or shipment is held on buyer’s request, delivery of the Products will be constituted by packing and placement of the Products in the Company’s storage area or as the Company may determine. The products shall be at the Buyers risk immediately on delivery, and the Buyer shall insure comprehensively the Products against the usual risk accordingly. The Company shall not be liable in any way whatsoever for any delay, breakage or damage to or loss of the Products after the Company has made delivery to the Carrier.
The Company will not accept any Products returned without prior written consent, which will be given only in exceptional circumstances at the Company’s discretion. The Company will levy a processing charge upon the Buyer in this circumstance.
8. Reservation of Title
8.1 The Company shall retain title to the Products until it has received payment in full of all sums due in connection with the supply of the Products to the Buyer or in connection with any other transaction. For these purposes the Company has only received a payment when the amount of that payment is irrevocably credited to its bank account.
8.2 If any of the products owned by the Company is attached to, mixed with, or incorporated into other goods, not owned by the Company and is not identifiable or separable from the resulting composite or mixed goods, title to the resulting composite or mixed goods shall vest in the Company and shall be retained by the Company for as long as and on the same terms as those on which it would have retain title to the products in question.
8.3 The Buyer shall store the Products owned by the Company in such a way that they are clearly identifiable as the Company’s property, shall maintain records of such Products identifying them as the Company’s property of the persons to whom it sells disposes of such Products and of the payment made by such persons for such Products. It will allow the Company to inspect these records and the Products themselves on request. All products supplied by the Company in the Buyers possession shall be presumed to belong to the Company. (Unless the Buyer can prove otherwise).
8.4 The Company shall be entitled to trace the proceeds of sale and any insurance proceeds received in respect of the Products owned by the Company. Such proceeds shall be paid into a separate bank account and shall be held by the buyer on trust for the Company.
8.5 If the Buyer fails to make payment to the Company when due, enters into bankruptcy, liquidation or a composition With its creditors, has a receiver, manager or administrator appointed over all or part of its assets, or becomes Insolvent or if the Company has reasonable cause to believe that any of these events is likely to occur, the Company shall have the right without prejudice to any other remedies.
8.5.1 To enter without prior notice any premises where the Products owned by it may be, and to repossess and dispose of any such Products owned by it so as to discharge any sums owned to it by the Buyer;
8.5.2 to require the Buyer not to re-sell or part with possession of the Products owned by it until the Buyer has paid in full all sums owned to it by the Company;
8.5.3 To withhold delivery of any undelivered Products and stop any Products in transit. Unless the Company expressly elects otherwise any contract between it and the Buyer for the supply of the Products shall remain in existence notwithstanding any exercise by the Company of its rights under this clause.
8.6 The Products shall once the risk has passed to the Buyer in accordance with cause 6.4 or otherwise be and remain at the Buyers risk at all times unless and until the Company has retaken possession of such Products.
8.7 In addition to any right of lien to which the Company may by law be entitled, the Company shall upon the occurrence of any of the events described in clause 8.5 above be entitled to a general lien on all the goods of the Buyer in the Company’s possession (although such goods or some of them may have been paid for) for the Unpaid price of the Products or any other goods sold and delivered to the Buyer by the Company under this Contract or any other contract between the Company and the Buyer 9
9.1 Topper International Limited warrants to the Buyer that the Products will be free from defects in material and workmanship for a period of twelve months from the date of delivery to the Buyer (the “warranty period”). Provided the Buyer makes a full inspection of the Products immediately upon receipt and thereafter gives the Company written notice containing full particulars of any defects it discovers and the circumstances in which such defects occurred, the company shall, as its sole option, EITHER repair, replace or give a credit for price of any such Products which its examination confirms are defective in material or workmanship within the warranty period PROVIDED that the Buyer has adhered to the payment provisions contain in clause 4 hereof and FURTHER PROVIDED that:
a) The Buyer returns the defective Products to the Company or its authorized service depot (as directed by the Company) and pays all transportation charges, duties and taxes associated with the repair, replacement and return of the products to the Buyer; OR
b) If, at the Company’s, option, The Company arranged for a technician to visit the Buyers installation to repair or replace the defective Products, the Buyers pays all transportation charged for the technician and his equipment, including any applicable duties and taxes, accommodation and living expenses and normal charges for the technician’s time while traveling and for delays beyond the Company’s control (save that the Buyer shall not be liable for any charge in respect of the technicians time on site actually engaged in carrying out the repair or replacement of such defective Products).
9.2 The repair or replacement of defective Products during the Warranty Period in accordance with clause 9.1 shall not as regards such Products extend the period of warranty therein provided.
9.3 The provisions of clause 9.1 do not extend to any Products which have been subjected to misuse, accident or improper installation, maintenance, application or operation nor do they extend to Products which have been repaired or altered otherwise than by the agents or employed of the Company unless previously authorized in writing by the Company.
9.4 THE WARRANTY CONTAINED IN CLAUSE 9 IS EXPRESSLY ACCEPTED BY THE BUYER IN LIEU OF ANY AND ALL OTHER TERMS, WARRANTIES, CONDITIONS OR LIABILITIES WHETHER EXPRESS OR IMPLIED, IN FACT OR IN LAW, RELATING TO THE STATE, QUALITY DESCRIPTION, CAPACITY, DESIGN, CONSTRUCTION, OPERATION, USE OR PERFORMANCE OF THE PRODUCTS OR TO THE MERCHANTABILITY, REPAIR OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS OR OTHERWISE WHATSOEVER AND NO AGREEMENT VARYING OR EXTENDING THE SAME WILL BE BINDING UPON THE COMPANY UNLESS IN WRITING SIGNED BY A DIRECTOR OF THE COMPANY.
9.5 UNLESS A DIRECTOR OF THE COMPANY SHALL OTHERWISE EXPRESSLY AGREE IN WRITING, IN NO CIRCUMSTANCES SHALL THE COMPANY’S LIABILITY TO
10. Limitation of Liability
SAVE AS EXPRESSLY PROVIDED IN CLAUSE 9 ABOVE THE COMPANY SHALL HAVE NO LIABILITY WHATSOEVER TO THE BUYER WHETHER IN CONTRACT, TORT OR OTHERWISE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS OR DAMAGE OF ANY KIND SUFFERED OR INCURRED BY THE BUYER HOWSOEVER CAUSED OR ARISING , WHETHER FROM BREACH OR NON-PERFORMANCE OF ANY OF ITS OBLIGATIONS UNDER THE CONTRACT OR FROM THE SUPPLY, INSTALLATION, PERFORMANCE , OPERATIONS OR USE OF THE PRODUCTS, EXCEPT LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM THE COMPANY’S PROVEN NEGLIGENCE.
11.1 The Buyer warrants that any design or instruction furnished or given by it shall not be such as will cause the Company to infringe any letters, patent, copyright, registered design or trade mark in the performance of the Contract and the Buyer undertakes to indemnify the Company against all damaged, penalties, costs and expenses to which the company may become liable as a result of in accordance with the Buyer’s designs or instructions which involves the infringement of any letters patent, copyright, registered design or trademark.
11.2 The Company makes no warranty or representation whatsoever that the Products do not infringe any letters patent, copyright, registered design and accepts no liability in this respect.
The Contract shall not be assigned in whole or in part by either party without the written consent of the other party, except that the Company may assign its rights, liabilities and obligation to an associated company without prior written notice.
The Buyer shall promptly pay when due all taxes, duties and other charges upon the export, import, sale, purchase, ownership, possession or use of the Products. Any such taxes, duties or other charges paid by the Company shall be for the account of the Buyer and shall be set out on the Company’s invoice.
The Company’s failure to insist upon the strict performance of any of the Buyers obligations under the contract shall not be constructed as a waiver and shall not affect the Company’s right to require strict performance of such obligation.
15. Cost of Enforcement
The Buyer shall pay to the Company all expenses, including legal costs in a full indemnity basis incurred by or on behalf of the Company in enforcing the provision of these contracts.
16. Amendments or Variations
No amendment to or variation of any of these Conditions is effective unless it is in writing and signed by a duly authorized director of the Company.
Headings to the clauses in these conditions of sale are for ease of reference only and shall not affect the construction of these conditions.
If any provision of these Conditions or part thereof is found to be invalid or unenforceable, the invalidity or unenforceability of such provision or part shall not affect any other provision or the remainder of the provision in which such invalid or unenforceable part is contained, which shall remain in force and effect.
All warranty correspondence for the manufacture shall be addressed to Topper International Limited, Kingsnorth Technology Park, Wotton Road, Ashford, Kent, TN23 6LN, United Kingdom.
All other correspondence should be addressed to the importer: East Coast Sailboats, Inc. 323 N. Dogwood Trail, Kitty Hawk, NC 27949, 252-489-3491
East Coast Sailboats, Inc. will not be liable to any person for any loss, damage, injury, or death that results from the buyers use of the product. East Coast Sailboats, Inc. makes no representations other than those contained in this Contract. The buyer will indemnify and hold East Coast Sailboats, Inc. harmless from and against any and all claims for loss or damage to property or injury to persons (including loss of life) resulting from use, operation, or possession of the boat and related equipment. This Agreement shall be construed and interpreted in accordance with the laws of the state of North Carolina, with the exception of any admiralty or maritime claims which shall be construed under the maritime, admiralty laws of the United States including the International Convention on Limitation of Liability for Maritime Claims 1976 as in effect. The venue for any proceedings hereunder shall lie in Dare County, North Carolina or the United States District Court for North Carolina.