3.9 If the Products are rejected in accordance with clause 3.8, Finlays will arrange the return of the Products from Mombasa Port to Finlays (at Finlays cost).
3.10 If Mitsui fails to give notice of rejection of the Products in accordance with clause 3.8 within thirty (30) days of receipt of the Sample, it shall be deemed to have accepted the Products to which the Sample relates.
Delivery
3.11 The contract shall be FOB (Incoterms 2010) at Mombasa Port and Delivery of the Products will be effected accordingly. Additional details regarding a Delivery may be agreed between the Parties in writing from time to time.
3.12 Unless otherwise agreed in writing between the Parties, any periods of time or dates quoted for Delivery of the Products are estimates only. Finlays will use its reasonable endeavours to deliver the Products by the delivery date set out in the Confirmation. If Finlays is unable to meet the delivery date because of a Force Majeure Event, Finlays will contact Mitsui with a revised delivery date.
3.13 Finlays may deliver up to five (5) percent more or five (5) percent less than the quantity of Products specified in the Order and Mitsui shall accept such variation in quantity and shall pay the agreed Price as adjusted to reflect such variation in quantity. Where more than five (5) percent or less than five (5) percent of the quantity of Products specified in the Order are delivered, Finlays and Mitsui shall discuss the excess supply or short supply (as the case may be) and:-
3.13.1 in the case of an excess supply: (i) if Mitsui wishes to keep the additional Products, Mitsui shall pay the agreed Price as adjusted to reflect the excess supply, or (ii) if Mitsui does not wish to keep the additional Products, Mitsui shall promptly return the additional Products in accordance with Finlays' directions and at Finlays' cost; or
3.13.2 in the case of a short supply: (i) if Mitsui does not wish to be delivered additional Products to make up the order, Mitsui shall pay the agreed Price as adjusted to reflect short supply, or (ii) if Mitsui wishes to take delivery of additional Products to make up the order, Finlays shall (where available and in supply) promptly deliver such additional Products to Mitsui. The quantity of any consignment of Products, as recorded by Finlays, on dispatch from Finlays' premises, shall be conclusive evidence of the quantity received by Mitsui on Delivery, unless Mitsui can provide conclusive evidence to the contrary.
3.14 Finlays shall not be responsible for any Losses suffered by Mitsui as a result of a failure to deliver the Products or for short Delivery unless Mitsui has informed Finlays in writing within 15 (fifteen) Business Days from the estimated date of arrival at port in Japan, designated by Mitsui (in relation to a failure to deliver) or on the actual date of arrival at port in Japan, designated by Mitsui (in relation to a short Delivery). In any event, where for any reason Finlays is liable to Mitsui for any such Losses, Finlays' liability shall be limited to an amount equal to the agreed Price applicable in respect of the Products not Delivered.
3.15 Where Mitsui fails to take Delivery of the Products or fails to give Finlays adequate Delivery instructions in advance of the time stated for Delivery (other than by reason of any cause beyond Mitsui's reasonable control), then the Products shall be deemed to have been delivered at the time stated for Delivery and, without prejudice to any other right or remedy available to Finlays, Finlays may store the Products until actual Delivery and charge Mitsui for the reasonable costs (including insurance) of such storage.