Terms and Conditions of Trading 17th October 2008
(i) In these conditions:
“Buyer” means the person, firm or company who accepts Seller’s quotation for the sale of the Goods or whose order for the Goods is accepted by Seller. Where Buyer contracts as agent, the term “Buyer” shall include the principal of such agent.
“Contract” means the contract for the purchase and sale of the Goods as evidenced by Seller’s quotation or Seller’s order acknowledgement (as the case may be) and incorporating these conditions.
“Goods” means the goods (including any instalment of the goods or any parts for them) which Seller is to supply in accordance with these conditions.
“Seller” means J. Marr (Seafoods) Limited of Livingstone Road, Hessle, East Yorkshire and all subsidiary and/or associated Companies operating within the Marr group of companies.
2. Basis of the Sale
(i) Seller shall sell and Buyer shall purchase the Goods in accordance with any written quotation of Seller which is accepted by Buyer, or any order of Buyer which is accepted by Seller, subject in either case to these conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by Buyer. Use by Seller in relation to any order of Buyer’s reference number for that order shall not be or be deemed to be acceptance by Seller of any terms and conditions of Buyer subject to which that order was made or purported to be made.
(ii) No variation to these conditions shall be binding unless agreed in writing between the authorised representatives of Buyer and Seller.
(iii) No order submitted by Buyer shall be deemed accepted by Seller unless and until Seller acknowledges receipt of the order in writing.
(iv) Buyer shall be responsible to Seller for the terms of any order (including any applicable specification) submitted by Buyer and for giving Seller any necessary information relating to the Goods within a sufficient time to enable Seller to perform the Contract in accordance with its terms.
(i) The price of the goods shall be Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price shown in Seller’s order acknowledgement in respect of the Goods. All prices quoted are valid until the date specified in the quotation or, where no date is specified, 30 days from the date of quotation, after which date they may be altered by Seller without giving notice to Buyer.
(ii) Prices quoted by Seller are quoted on the basis specified in the Contract, namely, collection by Buyer from Seller’s premises, Free on Truck (FOT), Free on Board (FOB), Free on Board Stowed (FOBS), Cost and Freight (C&F) or Cost Insurance and Freight (CIF). Where no basis is stated in the Contract, the price quoted shall require Buyer to collect the Goods from Seller’s premises. Where Goods are sold CIF, Seller will take out insurance to cover Institute Frozen Food Clauses (A) liability only. Seller shall not be responsible for any other costs or expenses whatsoever in respect of the sale or delivery of the Goods.
(iii) Unless otherwise stated, the price of the Goods is exclusive of any applicable VAT (which Buyer shall have an obligation to pay in addition to the price at the relevant rate applicable at the date of invoice) and of any other tax imposed from time to time on the sale or importation of goods and of any other duties, imposts or levies imposed from time to time.
(iv) Buyer shall pay in full the price for the Goods notwithstanding any variation in the price of the Goods imposed by any inspection agency or Governmental authority.
4. Terms of Payment
(i) Subject to any special terms agreed in writing between Buyer and Seller, Buyer shall pay for the Goods on delivery. Seller shall be entitled to invoice Buyer for the price of the Goods as soon as the Goods are available for collection or delivery. In the case of Goods sold on C&F or FOB terms Seller will obtain and hand over to Buyer all shipping documents referred to in the Contract upon payment in full of the price.
(ii) Where Seller agreed in writing that Buyer need not pay for the Goods on delivery, Buyer shall pay the price of the Goods on or before the last day of the month of Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to Buyer. The time of payment of the price shall be of the essence of the contract. Receipts for payment will be issued only upon request.
(iii) Buyer shall pay to Seller the total amount due to Seller from time to time and shall not be entitled to set off against such amount any sums due from Seller or Buyer or any claim Buyer may have or purport to have against Seller.
(iv) If Buyer fails to make payment in full on the due date then, without prejudice to any other right or remedy available to Seller, Seller shall be entitled to:
(a) Cancel the Contract or suspend any further deliveries to Buyer;
(b) Appropriate any payment made by Buyer to such of the Goods (or the Goods supplied under any other Contract between Buyer and Seller) as Seller may think fit (notwithstanding any purported appropriation by Buyer); and
(c) Charge interest (both before and after any judgement) on the amount unpaid at the rate of 4% per annum over the base lending rate of the Royal Bank of Scotland Plc from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
(i) Delivery of the Goods shall be made by Buyer collecting the Goods at Seller’s premises at any time after Seller has notified Buyer that the Goods are available for collections or, if some other place for delivery is agreed by Seller, by Seller delivering the Goods to that place.
(ii) Any dates quoted for delivery of the Goods are approximate only and Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless Seller has previously agreed in writing that time should be of the essence. The Goods may be delivered by the seller in advance of the quoted delivery date upon giving reasonable notice to Buyer.
(iii) Where the Goods are to be delivered in instalments, each delivery shall continue a separate contract and failure by Seller to deliver any one or more of the instalments in accordance with these conditions or any claim by Buyer in respect of any one or more instalments shall not entitle Buyer to treat the Contract as a whole as repudiated.
(iv) In the event that goods are sold on terms which require the Seller to charter a vessel to deliver the goods the Seller will contract on usual terms or such terms as can be negotiated in the market and are agreed by the Buyer. The Buyer will indemnify the Seller in respect of all demurrage incurred at the port of discharge and in respect of all other expenses, taxes, dues and customs levied on the Goods at the port of discharge or the place of destination whatsoever and howsoever arising.
(v) If Buyer fails to take or accept delivery of the Goods or fails to give Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond Buyer’s reasonable control or by reason of Seller’s fault) then, without prejudice to any other right or remedy available to Seller, Seller may at its sole discretion:
(a) Store the Goods until actual delivery and charge Buyer for the costs reasonably incurred by Seller as a result of Buyer’s failure to accept delivery including the costs of tendering delivery, storage and insurance.
(b) Give notice in writing to Buyer at any time requiring it to take delivery of the Goods or give adequate delivery instructions within seven days from the date of Seller’s notice. If Buyer fails to take delivery or give adequate delivery instructions, as aforesaid Buyer shall be deemed to have repudiated the Contract. Seller shall be discharged from any further obligation to deliver and Seller may sell the Goods and (after taking into account all costs reasonably incurred by Seller as a result of Buyer’s failure to accept delivery including the costs of tendering delivery, storage and insurance and selling expenses) invoice Buyer for any shortfall below the price under the Contract. Buyer shall pay any shortfall (plus any VAT thereon) to Seller within 30 days of the date of Seller’s invoice.
6. Risk and Property
(i) Risk of damage to or loss of the goods shall pass to Buyer at the time of delivery or, if Buyer wrongfully fails to take delivery of the Goods, the time when Seller has tendered delivery of the Goods. In the case of export sales, risk will pass to the Buyer in accordance with Incoterms.
(ii) Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, the Goods shall remain the absolute property of Seller until Seller has received in cash or cleared funds payment in full of the price of the Goods plus any delivery charges due in respect thereof, any VAT and other tax or duty and all other sums whatsoever which are then due from Buyer to Seller.
(iii) Until such time as the property in the Goods passes to Buyer, Buyer shall hold the Goods as Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of Buyer and third parties and properly stored, protected and insured and identified as Seller’s property. Subject to these conditions Buyer is licensed by Seller to agree to sell the Goods subject to the express condition that such an agreement to sell shall take place as agent and bailee for Seller whether Buyer on his own account or not and that the entire proceeds of the sale whether tangible or intangible including insurance proceeds are held in trust for Seller and are kept separate from any monies or property stored, protected and insured.
(iv) Until such time as the property in the Goods passes to Buyer, Seller shall be entitled at any time to require Buyer to deliver up the Goods to Seller and, if Buyer fails to do so forthwith, to enter upon any premises of Buyer or any third party where the Goods are stored and repossess the Goods and Buyer hereby grants to Seller its servants or agents an irrevocable licence to enter such premises.
7. Warranty and Liability
(i) Seller warrants to Buyer that the Goods:
(a) Will be supplied packed in export quality cartons at a suitable temperature.
(b) At the time of delivery will correspond with their specification and will comply with all U.K. statutory requirements.
(c) That Seller has good title to the Goods free from all liens, charges and encumbrances and has the right to sell the Goods.
(ii) Seller shall make the Goods available for inspection by Buyer at the point of delivery, either at cold store or at point of loading into vessel or onto vehicle. Whether or not Buyer inspects the Goods, unless Buyer notifies Seller of any claim that the Goods or any of them are not within specification, then the Buyer will be deemed to have accepted the Goods and cannot thereafter reject them.
(iii) Where any claim is notified to Seller in accordance with these conditions and is accepted, Seller shall be entitled to replace the Goods or any of them free of charge or at Seller’s sole discretion to refund to Buyer the price of the Goods or a proportionate part thereof, but Seller shall have no further liability to Buyer. Buyer shall not be entitled to set off against any sums due to seller the value of any claim Buyer may have or purport to have against the Seller.
(iv) Except in respect of death or personal injury caused by Seller’s negligence, Seller shall not be liable to Buyer by reason of any representation or any implied warranty condition or any other term or any duty at common law or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by Buyer except as expressly provided in these conditions.
(v) Seller shall not be liable to Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of Seller’s obligations in relation to the Goods if the delay or failure were due to any cause beyond Seller’s reasonable control.
(vi) Where Buyer deals as a consumer (within the meaning of the Unfair Contract Terms Act 1977) the statutory rights of Buyer are not affected by these conditions.
8. Insolvency of Buyer
(i) This clause applies if:
(a) Buyer is in receipt of a statutory demand under the Insolvency Act 1986 or makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
(b) An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of Buyer; or
(c) Buyer ceases, or threatens to cease, to carry on business; or
(d) Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to Buyer and notifies Buyer accordingly.
(ii) If this clause applies then:
(a) Buyer shall immediately give notice in writing to Seller that an event specified in Clause 8(i) has occurred, identifying the relevant event and giving as much information as possible to Seller, and
(b) Without prejudice to any other right or remedy available to Seller, Seller shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to Buyer, and
(c) If the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
9. Export Terms
(i) In these conditions “Incoterms” means international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these conditions, the latter shall prevail.
(ii) Where the Goods are supplied for export from the United Kingdom the provisions of this Clause 9 shall apply notwithstanding any other provision of these conditions but subject to any special terms agreed in writing between Buyer and Seller.
(iii) Buyer shall be responsible for complying with any legislation or regulations governing the importation of Goods into the country of destination and for payment of any duties thereon.
(iv) Where Goods are supplied on terms requiring carriage by sea the Seller shall be under no obligation to give notice to the Buyer under Section 32(iii) Sale of Goods Act 1979 nor shall any failure to give such notice affect the transfer of risk in accordance with Clause 6(i) of these conditions.
(V) Payment of all amounts due to Seller shall be made by either
a) irrevocable letter of credit opened by Buyer in favour of Seller and confirmed by a bank acceptable to the Seller or
b) in such manner as agreed by the Seller.
In the event of default of payment under a) or b) the Buyer shall be liable for the full amounts due together with interest and costs.
(i) The relationship between the parties shall be that of Buyer and Seller, and nothing in the Contract shall create or be deemed to create a partnership between the parties or make Buyer the agent of Seller for any purpose other than that of fiduciary agent of Seller for the receipt and payment of monies in accordance with Clause 6.
(ii) Seller shall be entitled to perform any of the obligations undertaken by it and to exercise any of the rights granted to it under the Contract through any other company.
(iii) Seller shall have a general lien on all goods of Buyer in Seller’s possession for all sums due from Buyer (including interest) in respect of any other Goods sold and delivered to Buyer or work undertaken for Buyer by Seller under the same or any other contract.
(iv) Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
(v) No waiver by Seller of any breach of the Contract by Buyers shall be considered as a waiver of any subsequent breach of the same or any other provision.
(vi) If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
(vii) Law and Jurisdiction
(a) Law of application
Except as specifically provided elsewhere herein, English law shall apply to the terms and conditions hereof and English law shall also be applied in interpreting the terms and conditions hereof.
All actions against the Seller under the Contract shall be brought before the High Court in England and no other Court shall have jurisdiction with regards to any such action.
Nothing in these terms and conditions shall affect or prejudice the right of the Seller to take action in accordance with the law of any country or state to bring a claim or enforce a lien or to obtain security by seizure, attachment or arrest of assets for any amounts payable to the Seller under the Contract.