The Customer's attention is drawn to the provisions of clause 9.
1.2.1 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.3 a reference to writing or written includes emails.
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues an acceptance (whether written or oral) of the Order or when delivery of the Order is completed (whichever is earlier), at which point the Contract shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, descriptive matter or advertising produced by the Supplier and any descriptions contained in the Supplier's catalogues or brochures or on the Supplier's website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 No Order which has been accepted or deemed to be accepted by the Supplier may be cancelled or otherwise revoked by the Customer except with the prior written agreement of the Supplier.
3.1 The Goods are described in the Supplier's brochures, catalogues and/or similar advertising/marketing materials and on the Supplier's website as modified by any applicable Specification.
3.2 The Supplier reserves the right to amend the specification of the Goods and/or any Specification if required by any applicable statutory or regulatory requirements.
3.3 The Supplier's employees, workers, consultants, representatives or agents are not authorised to make any representations concerning the Goods unless confirmed by the Supplier in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
3.4 Any advice or recommendation given by the Supplier or its employees, workers, consultants, representatives or agents to the Buyer or its employees, workers, consultants, representatives or agents as to the storage or use of the Goods which is not confirmed in writing by the Supplier is followed or acted on entirely at the Customer's own risk, and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
3.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
4.1 The Supplier shall ensure that if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 Unless otherwise agreed between the Supplier and the Customer pursuant to clause 4.3, the Customer shall collect the Goods from the relevant Supplier's premises notified by the Supplier to the Customer or such other location as may be advised by the Supplier prior to delivery ("Delivery Location") within three Business Days of the Supplier notifying the Customer that the Goods are ready.
4.3 If agreed between the Supplier and the Customer, the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (which shall then be the "Delivery Location" for the purposes of these Conditions) at any time after the Supplier notifies the Customer that the Goods are ready.
4.4 Delivery is completed on the completion of unloading (in the case of clause 4.3) or loading (in the case of clause 4.2) of the Goods at the Delivery Location. The costs of delivery will be as quoted at the time of the Order or as otherwise agreed between the Supplier and the Customer.
4.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If the Customer fails to take (in the case of clause 4.2) or accept (in the case of clause 4.3) delivery of the Goods, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the next Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.7.2 the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
4.8 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken (in the case of clause 4.2) nor accepted (in the case of clause 4.3) delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.10 If the Supplier has agreed to store the Goods for the Customer, once the agreed period of storage has expired then the Customer must make arrangements to collect the Goods, or if the Supplier agrees, the Supplier will continue to store the Goods for the Customer for an agreed period of time at a price to be notified by the Supplier to the Customer. The Customer must provide the Supplier with 24 hours' notice of its intention to collect the Goods and must provide full particulars of which Goods it is collecting. Collection can only be made between the hours of 8am and 2pm, and only on a weekday (Monday to Friday) but excluding public holidays.
4.11 Once title to the Goods has passed to the Customer, the Supplier shall store the Goods separately from all other goods in its possession and marked in such a way that they are identified as the Customer's property.
4.12 The Customer shall be responsible for ensuring that any Goods stored by the Supplier are used with reference to the earliest best before date and the Supplier shall not be liable for the Customer's failure to do this, or for the Customer's failure to take delivery of the Goods before their best before date.
5.1 The Supplier warrants that on delivery the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Specification; and
5.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.1.3 be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, replace the defective Goods or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any Specification supplied by the Customer;
5.3.4 the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or
5.3.5 the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any replacement Goods supplied by the Supplier.
6.1 The risk in the Goods shall pass to the Customer on completion of delivery or, if the Customer has asked the Supplier to store the Goods, on the date such storage begins.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's 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 the Supplier immediately if it becomes subject to any of the events listed in clause 8.1; and
6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time:
6.4.1 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
6.4.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7.1 The price of the Goods shall be the price set out in, or quoted at the time of, the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery. Prices of the Goods can vary from time to time and order to order and all prices quoted for the Goods are valid only for the same day on which they are given and to secure the price quoted for the Goods a Contract must be made before 5pm on that day.
7.2 The Supplier may, by giving notice to the Customer 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 any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods:
7.3.1 excludes amounts in respect of value added tax ("VAT"), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.3.2 excludes the costs and charges of packaging, insurance and transport (save for delivery as specified in clause 7.8) of the Goods, which shall be invoiced to the Customer.
7.4 Subject to any special credit or other terms agreed in writing between the Customer and the Supplier from time to time, the Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery (or deemed delivery).
7.5 Subject to any special credit or other terms agreed in writing between the Customer and the Supplier from time to time, the Customer shall pay the invoice in full and in cleared funds within 28 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate (i) of 8% per annum above the Bank of England's base rate from time to time or, if higher, (ii) as set out in the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.7 The Customer 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). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7.8 Unless otherwise agreed in the Order or in writing between the Supplier and the Customer, all prices of the Goods are given by the Supplier on the basis of (i) delivery of the Goods by the Supplier at the Customerís premises (within the United Kingdom and Ireland at the address provided to and accepted by the Supplier as the delivery address at the time of the Order) or collection by the Customer (as soon as the Supplier notifies the Customer that the Goods are ready for collection) at the Supplierís premises, and where the Supplier agrees to deliver the Goods otherwise than at the aforementioned Supplierís / Customerís premises (or the Customer wishes to change the delivery instructions agreed at the time of the Order), the Supplier may, at its discretion, charge an additional amount for transport, packaging and insurance for which the Customer shall be liable in addition to the price of the Goods.
7.9 If the Supplier has agreed to store the Goods for the Customer then the Supplier may invoice the Customer for the price of the Goods at any time after the order for the Goods has been made and clause 7.4 shall be modified accordingly.
7.10 Invoices for storage will be issued weekly or monthly (at the Supplierís discretion) in arrears. The provisions of clause 7.3, clause 7.5, clause 7.6 and clause 7.7 shall apply mutatis mutandis to such charges for storage.
8.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
8.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
8.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
8.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
8.1.4 the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.1.1 to clause 8.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
8.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its 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 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1 the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 the Supplier's total liability to the Customer 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 otherwise, shall in no circumstances exceed the price of the Goods actually paid to the Supplier.
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this Contract by giving 7 daysí written notice to the affected party.
11.1 Assignment and other dealings
11.2 Entire agreement.
11.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.4 Waiver. 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 Severance. 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 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 this clause shall not affect the validity and enforceability of the rest of the Contract.
11.6 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
11.7 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
11.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
This statement has been formally approved by the Directors of Collins Seafoods Ltd and Wraggs Seafoods Ltd and signed on their behalf..
©2021 Collins Seafoods North East Ltd and Collins Seafoods Yorkshire Ltd are registered in England & Wales at Unit 2, Park 2000, Millennium Way, Aycliffe Business Park, Newton Aycliffe, County Durham, DL5 6AR. Company numbers: 02031624 & 04190928