1) Interpretation

 

1.1) In these Conditions, the following definitions apply:

Order Acknowledgement: means the form titled “order acknowledgement” setting out the details of the Goods ordered and certain other contractual terms.

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: the terms and conditions set out in this document and the Order Acknowledgement.

Contract: the contract between us and you for the sale and purchase of the Goods in accordance with these Conditions.

CNF: Cost and Freight as defined by the Incoterms.

CIF: Cost Insurance & Freight as defined by the Incoterms.

DDP: Delivered Duty Paid as defined by the Incoterms.

FOB: Free on Board as defined by the Incoterms.

You and your: the person, firm or Company who purchases the Goods from us and whose details are set out in the Order Acknowledgement.

Force Majeure Event: has the meaning given in clause 10.

Goods: the goods (or any part of them) described in the Order Acknowledgement.

Incoterms: means the Incoterms Rules as in force at the date of the Contract.

Order: your order for the Goods, as set out in the Order Acknowledgment.

Port Health Clearance: clearance or certification by any port, customs or similar authority in any relevant jurisdiction confirming that the Goods may enter such jurisdiction.

We, us, our: Seamark plc (registered in England and Wales with company number 2575875).

Construction

1.2) In these Conditions, the following rules apply:

1.2.1               A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.2.2               A reference to a party includes its personal representatives, successors or permitted assigns.

1.2.3               A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference a  bbbbbbbbb statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-bbbbbbb      enacted.

1.2.4               Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and b                      shall not limit the sense of the words preceding those terms.

1.2.5               A reference to writing or written includes emails, Fax, or Skype messages.

 

2) Basis of contract

2.1) These Conditions apply to the Contract and to each and every contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2) Subject to clause 2.6, you may order Goods from us by telephone, email or in person following which, we shall send an Order Acknowledgement confirming our acceptance of your Order. The Order shall be deemed to be agreed when you return a signed copy or if no signed Acknowledgement Form is returned, two Business Days after the Acknowledgement Form is supplied to you.

2.3) The Order Acknowledgement shall set out the terms of your Order in accordance with these Conditions and you are responsible for ensuring that the terms of the Order are complete and accurate. If there are any errors, omissions or changes to be made on the Order Acknowledgement, these must be notified to us within two Business Days.

2.4) The Contract constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promises, representation, assurance or warranty made or given by us or on our behalf which is not set out in the Contract.

2.5) All Contracts are subject to fishing and availability of Goods generally. If we are unable to source Goods of the type and quantity ordered we shall discuss with you whether you would wish to cancel the Contract or order alternative Goods.  If no agreement can be reached as to how to proceed then we shall have the right to cancel the Contract.

2.6) If you are a new customer who has not entered into a Contract with us before then the provisions of this clause 2.6 shall apply:

2.6.1               we require all new customers to pass our credit checks and agree a credit limit on their account and by placing an Order with us you agree to allow us to pass on your details to third bbbbbbbbb    parties for the purposes of performing such checks;

2.6.2               until we confirm in writing that the credit checks have been passed, all Orders shall constitute offers by you to purchase the Goods described in the Order(s) but no contract shall come bbbbbbbbb     into existence unless and until we confirm in writing that you have passed our credit checks;

2.6.3               If the credit application is unsuccessful we will require a pre-payment for each new contract.

 

3) Goods

3.1) The Goods are described in the Order Acknowledgement.

3.2) We reserve the right to amend, alter or supply alternative Goods if required by any applicable statutory or regulatory requirements. All Contracts are subject to fishing and availability.

 

4) Delivery

4.1) We shall ensure that each delivery of the Goods is accompanied by a delivery note which shows, all of our and your relevant reference numbers, the type and quantity of the Goods, special storage instructions (if any) and, if the Order is being delivered by instalments.

4.2) Unless otherwise specified in the Order Acknowledgement we shall deliver the Goods to the location set out in the Order Acknowledgement (“Delivery Location”). The delivery terms will be agreed with the sales person. Any dates quoted for delivery in the Order Acknowledgement are approximate.

4.3) If we fail to deliver the Goods, our liability shall be limited to such of the price of the Goods that you have paid, and no further payment shall be due in respect of such Goods.

4.4) We shall have no liability for any failure to deliver the Goods or any delay in delivery of the Goods to the extent that such failure is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5) If you fail to accept delivery of the Goods then, except where such failure or delay is caused by a Force Majeure Event or our failure to comply with our obligations under the Contract:

4.5.1               delivery of the Goods shall be deemed to have been at the time and date upon which it was attempted; and

4.5.2               we shall notify you that delivery was attempted and store the Goods until you rearrange delivery for a period of five Business Days at no charges, but thereafter we shall charge you bbbbbbbbbb   for all related costs and expenses (including insurance).

4.6) If 10 Business Days after the day on which we notify you that delivery of the Goods was attempted you have not rearranged delivery, we may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Goods or charge you for any shortfall below the price of the Goods.

4.7) You shall not be entitled to reject the Goods if we deliver up to and including 10% more or less than the quantity of Goods ordered.

4.8) We may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a Contract back order. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.

4.9) When goods are shipped on an FOB or CNF basis it will be your responsibility to arrange the appropriate insurance and make any claims to the relevant insurance company covering shipment of the Goods should a claim arise. This clause 4.10 shall constitute notice under Section 32(3) of the Sale of Goods Act 1979.

4.10) The Contract and any delivery dates quoted therein are subject to Port Health Clearance and in the event that Port Health Clearance is not obtained in respect of all or part of your Order then we may at our sole discretion either:

4.10.1            provide you with replacement Goods; or

4.10.2            terminate the Contract insofar as it relates to the Goods for which Port Health Clearance could not be obtained and no liability to you shall arise other than a liability to refund the price bbbbbbbbb    paid by you for such Goods.

 

5) Quality

5.1) We warrant that on delivery, the Goods shall:

5.1.1               conform in all material respects with their description; and

5.1.2               be of satisfactory quality (within the meaning of the Sale of Goods Act 1979);

5.1.3               (where applicable) comply with the conditions set out in Schedule 2 of the Quick Frozen Foodstuffs (England) Regulations 2007.

5.2) Subject to clause 5.4, if:

5.2.1               you give notice in writing to us within two Business Days of delivery or collection that some or all of the Goods do not comply with the warranty set out in clause 5.1;

5.2.2               we are given a reasonable opportunity of examining such Goods; and

5.2.3               you (if asked to do so by us) return such Goods to our place of business.

bbbbb              We shall, at our discretion replace such of the Goods as do not comply with the warranty in clause 5.1.

5.3) No claims for damage, shortage or delivery total loss or that the Goods are not in accordance with the Contract will be entertained unless notified to us in writing within two Business Days of delivery or collection by you or in the case of total loss the due date for delivery. If you fail to give such notice then the Goods shall be deemed to have been delivered and to be in all respects in accordance with the terms of the Contract and you shall be bound to accept and pay for the same.

5.4) We shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:

5.4.1               you make any further use of such Goods after giving notice in accordance with clause 5.1.3

5.4.2               the defect arises because you failed to follow our oral or written instructions as to the storage, use, or maintenance of the Goods or (if there are none) good trade practice regarding the bbbbbbbbb    same;

5.4.3               the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or

5.4.4               the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.5) For the avoidance of any doubt, in the event of a breach of clause 5.1.3 you shall only be entitled to the remedies set out in clause 5 in respect of the Goods, or such part of the Goods that fail to comply with clause 5.1.3 but not in respect of any Goods, or any part of the Goods that do comply with clause 5.1.3.

5.6) Except as provided in this clause 5, we shall have no liability to you in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.7) The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

5.8) These Conditions shall apply to any replacement Goods supplied by us.

 

6) Title and risk

6.1) The risk in the Goods shall pass to you on completion of delivery or collection, as the case may be.

6.2) Title to the Goods shall not pass to you until the earlier of:

6.2.1               our receipt of payment in full (in cash or cleared funds) for the Goods and any other goods that we have supplied to you in respect of which payment has become due, in which case title bbbb                to the Goods shall pass at the time of payment of all such sums; and

6.2.2               you resell the Goods, in which case title to the Goods shall pass to you at the time specified in clause 6.4.

6.3) Until title to the Goods has passed to you, you shall:

6.3.1               store the Goods separately from all other goods held by you so that they remain readily identifiable as our property;

6.3.2               not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3               maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

6.3.4               notify us immediately if you become subject to any of the events listed in clause 8.2; and

6.3.5               give us such information relating to the Goods as we may require from time to time.

6.4) Subject to clause 6.5, you may resell or use the Goods in the ordinary course of your business (but not otherwise) before we receive payment for the Goods. However, if you resell the Goods before that time:

6.4.1               you do so as principal and not as our agent; and

6.4.2               title to the Goods shall pass from us to you immediately before the time at which resale by you occurs.

6.5) If before title to the Goods passes to you, you become subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy we may have:

6.5.1               your right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

6.5.2               we may at any time:

6.5.2.1            – require you to deliver up all Goods in your possession which have not been resold, or irrevocably incorporated into another product; and

6.5.2.2            – if you fail to do so promptly, enter any premises of your or of any third party where the Goods are stored in order to recover them.

 

7) Price and payment

7.1) The price of the Goods shall be the price set out in the Order Acknowledgement.

7.2) We may, by giving notice to you at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

7.2.1               foreign exchange fluctuations, increases in taxes and duties, materials, processing, or low stocks of Goods or any other factor beyond our control;

7.2.2               any request by you to change the delivery date(s), quantities or types of Goods ordered; or

7.2.3               any delay caused by any instructions of yours or failure of yours to give us adequate or accurate information or instructions.

7.3) The price of the Goods is inclusive of the costs and charges of packaging, insurance up to the delivery place assigned by yourself, and transport of the Goods, if delivery is to be made on a DDP basis. In all other cases the price of the Goods shall be exclusive of insurance and transport of the Goods which shall be invoiced to you.

7.4) Unless otherwise set out in the Order Acknowledgement, you shall pay the price of the Goods in full and in cleared funds 30 calendar days from the date of the invoice Payment shall be made to our bank account nominated in writing by us.

7.5) If you fail to make any payment due to us under the Contract by the due date for payment, then you shall pay interest on the overdue amount at the rate of 4% per annum above HSBC plc’s base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.

7.6) You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting any of our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.

 

8) Termination and suspension

8.1) If you become subject to any of the events listed in clause 8.2, we may terminate the Contract with immediate effect by giving written notice to you.

8.2) For the purposes of clause 8.1, the relevant events are:

8.2.1               you suspend, or threaten to suspend, payment of your debts, or are unable to pay your debts as they fall due or you admit inability to pay your debts, or (being a company or limited bbbbbbbbb    liability partnership) you are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) are deemed either unable to pay bbbbbbbbb    your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) have any partner to bbbbbbbbb    whom any of the foregoing apply;

8.2.2               you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enters into any compromise or arrangement bbbbbbbbb     with your creditors;

8.2.3               (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up, other than for the sole purpose of a scheme bbbbbbbbb     for a solvent amalgamation of you with one or more other companies or your solvent reconstruction;

8.2.4               (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an bbbbbbbbb     administrator is appointed over you;

8.2.5               (being a company) the holder of a qualifying floating charge you’re your assets has become entitled to appoint or has appointed an administrative receiver;

8.2.6               a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;

8.2.7               (being an individual) you are the subject of a bankruptcy petition or order;

8.2.8               a creditor or encumbrancer of yours attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or bbbbbbbbb     any part of its assets and such attachment or process is not discharged within 14 days;

8.2.9               any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in clause bbbbbbbbb     8.2.1 to clause 8.2.6 (inclusive);

8.2.10            you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;

8.2.11            your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy; and

8.2.12            (being an individual) upon death or, by reason of illness or incapacity (whether mental or physical), are incapable of managing your own affairs or you become a patient under any bbbbbbbbb    mental health legislation.

8.3) Without limiting our other rights or remedies, we may suspend provision of the Goods under the Contract or any other contract between you and us if you become subject to any of the events listed in clause 8.2.1 to clause 8.2.12, or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under this Contract on the due date for payment.

8.4) On termination of the Contract for any reason you shall immediately pay to us all of our outstanding unpaid invoices and interest.

8.5) Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.

8.6) Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

 

9) Limitation of liability

9.1) Nothing in these Conditions shall limit or exclude our liability for:

9.1.1               death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);

9.1.2               fraud or fraudulent misrepresentation;

9.1.3               breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

9.1.4               any matter in respect of which it would be unlawful for us to exclude or restrict liability.

9.2) Subject to clause 9.1:

9.2.1               we shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, any indirect or bbbbbbbbb    consequential loss, or any physical damage to any commercial assets, property, or premises arising under or in connection with the Contract; and

9.2.2               our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or bbbbbbbbb     otherwise, shall in no circumstances exceed the price of the Goods;

9.2.3               we shall have no liability to you, if you do not issue a claim in respect of any matter within six months of delivery of the Goods to which the claim relates or which out of which the claim bbbbbbbbb     arises.

 

10) Force majeure

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

11) General

11.1) Assignment and other dealings

11.1.1            We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights or obligations under the Contract.

11.1.2            You may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Contract without our bbbbbbbbb   prior written consent.

11.2) Notices

11.2.1            Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.

11.2.2            A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2.1; if sent by pre-paid first class post or bbbbbbbbb   other next working day delivery service, at 9:00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery bbbbbbbbb   receipt is signed; or, if sent by email, one Business Day after transmission.

11.2.3            The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

11.3) Severance

11.3.1            If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and bbbbbbbbb   enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under bbbbbbbbb   this clause shall not affect the validity and enforceability of the rest of the Contract.

11.3.2            If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to bbbbbbbbb   amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.4) Waiver

A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

11.5) Third party rights

A person who is not a party to the Contract shall not have any rights to enforce its terms.

11.6) Variation

Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by us.

11.7) Governing law

The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England.

11.8) Jurisdiction

Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).