Escrow Terms & Conditions
1. Payment will be released from escrow to Seller, independently of the Incoterms agreed, the first business day following ten calendar days after receipt of the goods by Buyer (examination period), except if other time period for examination has been agreed by Buyer and Seller.
2. If the goods are redirected in transit or redispatched by Buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract Seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination. If this is the case, Buyer and Seller should have agreed beforehand that the inspection of the goods and the payment will take place after delivery to the new destination.
3. Not later than five calendar days before the end of the examination period, in case of noncomplying goods (defined below) Buyer shall file dispute resolution claim and shall provide to Seller an inspection report including variances in quantities, damaged or incorrect good, and the appropriate remedy therefor.
4. In the absence of express agreement between Buyer and Seller as to proof of shipment and the manner of inspection, Buyer shall take video recording that unquestionably proves that the goods received are noncomplying in order to file a claim for dispute resolution:
a. Buyer shall record a video showing the quantity and condition of the goods upon receipt. If noncompliance is apparent immediately upon delivery prior to the removal from any delivery vehicle(s) or vessels, the video shall be taken of the goods on such vehicle(s) or vessels as well as after removal.
b. Seller shall record a video of the goods during shipment, such video to show the quantity of goods or packages, the manner of shipment and the absence of any damage to the goods or the packaging.
c. The videos of both Buyer and Seller shall be continuous in a good light conditions and shall provide firm prove of the goods or packages send / received, including a video of the delivery container / truck with the status of its locks, sealings, walls, floor and ceiling before and after the uploading / downloading of the goods.
d. In case of Incoterms where the ownership and the responsibility over the transportation of the goods passes to Buyer before the goods are delivered (i.e. FOB or similar Incoterms), Buyer shall prove the goods where delivered on time and in good shape by the shipping company, and that any claims arising from noncomplying goods are due to acts or omissions by Seller.
5. Noncomplying goods shall be goods received by Buyer from Seller where the quantity, condition, specifications or performance of such goods is not consistent with the goods ordered by Buyer, except if such noncompliance impacts or is less than the industry standard deviation for the type of goods traded or as specified in the purchase order or in the description of the goods ordered.
6. If and to the extent the foregoing provisions relating to noncomplying goods conflict with the terms of the agreement between Buyer and Seller, the agreement by Buyer and Seller shall control.
7. Remedy: in case of non-complying goods, Buyer may propose a remedy or reject the goods:
a. Within five (5) calendar days after delivery of the goods, Buyer shall indicate the level of noncompliance and requests Seller cure the noncompliance.
b. Within four (4) calendar days after such request Seller advises Buyer of a cure that is, in the reasonable discretion of Buyer, acceptable, and both shall agree on the level of non-compliance.
c. Once Buyer and Seller reach an agreement and inform the escrow agent, the escrow agent shall pay to Seller the proportionate of the amount held by the escrow representing the complying goods already received and accepted by Buyer and hold the balance to be paid upon cure of the noncompliance.
d. If the noncompliance is cured by the date accepted by Buyer, the escrow agent shall pay to Seller the balance of the funds held in escrow relative to such purchase order.
e. If the noncompliance is not cured by the date accepted by Buyer, Buyer may elect to accept goods provided in purported satisfaction of the cure and the escrow agent shall pay to Seller the balance of the funds held in escrow relative to such purchase order if the cure is accepted by Buyer or return such funds to Buyer if the noncompliance is not cured.
i. In the event Buyer, within five (5) calendar days after delivery of the goods, requests Seller cure the noncompliance and either Seller does not respond within four (4) calendar days after such request or Seller advises Buyer of a cure date that is, in the reasonable discretion of Buyer, unacceptable, the dispute goes to arbitration.
8. Alternatively, Buyer may reject the entire delivery of goods and the claim passes to dispute resolution.
9. Preservation.
a. If the buyer has received the goods and intends to exercise any right to reject them, he must take such steps to preserve them as are reasonable in the circumstances until the end of the dispute resolution.
b. If the goods are subject to rapid deterioration or their preservation would involve unreasonable expense, a party who is bound to preserve the goods must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell.
10. Delays.
a. In case of delay by the Seller, The Buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations.
b. Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract. However, the buyer is not deprived thereby of any right he may have to claim damages for delay in performance.
c. In case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by the Buyer or declares that he will not deliver within the period so fixed, the case passes to arbitration.
11. Buyer not taking the goods. If Buyer has not performed all acts necessary for taking the goods, including but not limited to organization of carrier, documentation, reception and inspection, etc., Seller is entitled file for dispute resolution and claim the price or the Buyer to take delivery.
12. If, by any reason, Buyer and Seller decide that the contract will not be executed and both inform the escrow agent in writing, the funds will be returned to Buyer.