TERMS AND CONDITIONS OF SALE
1 TERMS AND CONDITIONS
In the following Terms and Conditions the “Company” shall mean Paramount 21 Ltd (registered in England and Wales with company number 02295454) or any of its trading divisions or subsidiaries and the “Customer” shall mean the person firm or company placing an order with the Company. The “Goods” means all items supplied by the Company to the Customer and the “Contract” shall mean any contract, whether written or otherwise, between the Company and the Customer for the supply of the Goods. These Terms and Conditions (Terms), shall apply to any contract between the Company and the Customer to the exclusion of any other terms that the Customer seeks to impose or incorporate or which are implied by trade custom or course of dealing.
2 VARIATION
Neither the employees of the Company nor the employees of the Customer shall have the right to vary the Terms unless such variation is in writing and signed by a director or principal of both parties.
3 ACCEPTANCE AND CONTRACTS
(a) Quotations and estimates given by the Company are not offers to sell. All orders accepted by the Company are subject to the availability of the Goods which are the subject of the order.
(b) Contracts will not become binding on the Company until the Company has confirmed that the quantity required by the Customer is available and is to the required quality and specification.
(c) The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, descriptive matter, or advertising issued by the Company shall not form part of the Contract or any other contract between the Company and the Customer for the sale of the Goods.
4 DELIVERY
(a) Where delivery is to be made by instalments, each delivery shall be deemed for such purpose to be the subject of a separate Contract and any failure whatsoever by the Company in respect of any one delivery shall not entitle the Customer to repudiate the Contract or any instalments remaining to be delivered thereunder.
(b) The Company shall deliver the Goods to the location set out in the Contract or such other location as the parties may agree at any time after the Company notifies the Customer that the Goods are ready for delivery. Delivery of the Goods shall be completed on the Goods' arrival at the location.
(c) Where the Customer wishes to pick up the Goods the Customer shall collect the Goods from the Company's premises or such other location as may be advised by the Company prior to delivery within 3 working days of the Company notifying the Customer that the Goods are ready for collection. Delivery of the Goods shall be completed on the completion of loading of the Goods at the location.
(d) While the Company will endeavour to deliver the Goods by any date or within any period agreed upon, such dates and periods are estimates only given in good faith, and the Company will not be liable for any delay or failure to deliver by such a date or within such a period that is caused by a Force Majeure event, seasonality of certain types of fish or the Customer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. Moreover, the Company shall be entitled to defer delivery until any outstanding and overdue monies has been received from the Customer.
(e) If the Customer fails to take or accept delivery of the Goods within 3 working days of the Company notifying the Customer that the Goods are ready for delivery, then, except where such failure or delay is caused by a Force Majeure Event or the Company's failure to comply with its obligations under the Contract:
(i) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third working day following the day on which the Company notified the Customer that the Goods were ready for delivery; and
(i) the Customer makes any further use of such Goods after giving notice in accordance with clause 6 (b); or
(ii) the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage of the Goods.
(d) Except as provided in this clause the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6(a).
(e) Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5 TITLE AND RISK
(a) The risk in the Goods shall pass to the Customer on completion of delivery.
(b) Title to the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for the Goods.
(c) Until title to the Goods has passed to the Customer, the Customer shall:
(i) hold the Goods on a fiduciary basis as the Company's bailee.
(ii) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property.
(iii) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(iv) maintain the Goods in satisfactory condition and in a freezer if necessary and keep them insured against all risks for their full price from the date of delivery.
(v) notify the Company immediately if it is unable to pay its debts as they fall due or is the subject of a bankruptcy petition or order or (being a company) shall cease trading or pass a resolution for winding up or an administrator is appointed over the Customer or a receiver is appointed over the assets of the Customer,
but the Customer may resell or use the Goods in the ordinary course of its business.
(d) If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 5(c)(v) above, or the Company reasonably believes that this is the case and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, 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.
(e) If the Customer becomes subject to any of the events listed in clause 5(c)(v) above before delivery has taken place the Company reserves the right to defer or cancel any further deliveries and treat the Contract of which the Terms form part as determined but without prejudice to its right to the full purchase price for Goods delivered and damages for any loss suffered in consequence of such cancellation and/or determination. The Customer shall make good all losses that the Company may suffer as a result of cancellation.
(f) No failure by the Company to enforce strict compliance by the Customer with such provisions shall constitute a waiver thereof and no termination of the Contract shall prejudice limit or extinguish the Company’s rights under the Terms.
6 QUALITY
(a) The Company warrants that on delivery the Goods shall:
(i) conform in all material respects with their description;
(ii) be of satisfactory quality.
(b) Subject to clause 6(c), if:
(i) the Customer gives notice in writing to the Company within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6(a); and
(ii) the Company is given a reasonable opportunity of examining such Goods; and
(iii) the Customer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost,
the Company shall, at its option, replace the defective Goods or refund the price of the defective Goods in full.
(c) The Company shall not be liable for Goods' failure to comply with the warranty set out in clause 6(a), if:
accruing due to it on any account between the parties and shall be entitled to sell the Goods accordingly.
7 PRICE AND TERMS OF PAYMENT
(a) The price of the Goods shall be the price set out in the sales invoice.
(b) The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
(c) The Company may invoice the Customer for the Goods on or at any time after the completion of delivery.
(d) The Customer shall pay the invoice in full and in cleared funds by the date stated on the sales invoice. Payment shall be made to the bank account nominated in writing by the Company. Time of payment is of the essence.
(e) If the Customer fails to make any payment due to the Company under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England's base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
(f) The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company 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 Company to the Customer. Further, the Company shall be entitled to withdraw or suspend any marketing incentives, overriders or similar incentive payments in the event that the Customer does not make payment of any sums due to the Company on the due date(s) for payment.
8 CUSTOMER’S PACKAGING AND COMPANY’S COSTS
The Customer can request that the Company supply Goods with the Customer’s own bespoke packaging provided that the necessary amount of the appropriate packaging has been made available to the Company within a reasonable time prior to delivery. Alternatively, in the event that the Company agrees to procure any bespoke packaging on behalf of the Customer, the Customer hereby undertakes to immediately reimburse the Company for the full cost of any packaging that remains unused after all Goods requiring that bespoke packaging have been delivered.
9 CLAIMS FOR DAMAGE OR SHORTAGE
No claims for damage, shortage on delivery, total loss or that the Goods are not in accordance with the Contract will be entertained unless notified to the Company in writing within 7 days of delivery or collection by the Customer or in the case of total loss within 7 days of the contractual date for delivery. If the Customer fails to give such notice then the Goods forming the subject of the Contract shall be deemed to have been delivered and to be in all respects in accordance with the term of the Contract and the Customer shall be bound to accept and pay for the same.
10 FORCE MAJEURE
The Company shall not 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, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions including those that affect fishing, or default of suppliers or subcontractors.
11 LIEN
The Company shall have a general lien on the Goods and all property of the Customer within its control for the payments of all debts accrued due or (ii) the Company shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
(f) If 5 working days after the Company notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, the Company 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.
12 EXCLUSION
All Goods sold by the Customer are supplied with the benefit of the terms implied by Section 12 of the Sale of Goods Act 1979. Subject thereto, and whether or not the Contract is a contract of sale, all other conditions, warranties and other terms express or implied statutory or otherwise are expressly excluded, save as provided in Clause 6 hereof or as otherwise expressly agreed by the Company in writing PROVIDED THAT if and insofar as any legislation or any order made thereunder shall make or have made if unlawful to exclude or purport to exclude from the Contract any term or shall have made unenforceable any attempt to exclude any such term, the foregoing provisions of this paragraph will not apply to any such term.
13 HEADINGS
Reference to clauses are to clauses of the Terms. Headings are for convenience only and do not affect the interpretation of the Terms. A reference to any stature or statutory provision shall be constructed as a reference to the same as it may have been, or may from time to time be amended, modified or re-enacted.
14 INVALIDITY
(a) If at any time any term or condition or any part thereof (in this Clause called the “offending provision”) contained in the Terms shall be declared or become unenforceable, invalid or illegal for any reason whatsoever, the other terms and conditions or part thereof shall remain in full force and effect as if the Terms had been entered into without the offending provision appearing herein and their legality, validity or enforceability shall not be affected or impaired.
(b) The Company and the Customer agree to substitute if possible for such offending provision a new provision as agreed between the Company and the Customer which serves the purpose of the offending provision to the fullest possible legal extent.
15 ENGLISH LAW TO APPLY
The proper law of all Contracts shall be English law, in the event of any Contract being made for the supply of Goods to which the Terms relate such Contract shall be deemed to be a Contract made in England and enforceable only in accordance with English Law and the Customer agrees that in the event of any dispute arising out of any Contract or the performance thereof he will submit to the jurisdiction of the English Court.
16 DATA PROTECTION ACT 1998
The Company may transfer information about the Customer to its financiers, who:
(a) may use, analyse and assess information about the Customer, including the nature of its transactions and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claim, underwriting and training purposes and in making payments and servicing their agreement with the Company;
(b) from time to time, may make searches of the Customer’s record at credit reference agencies where its record with such agencies may include searches made and information given by other businesses; details of their searches will be kept by such agencies but will not be seen by other organisations that may make searches;
(c) may give information about the Customer and its indebtedness to the following:
(i) the Company’s or their insurers for underwriting and claims purposes;
(ii) any guarantor or indemnifier of the Customer or the Company’s obligations to enable them to assess such obligations;
(iii)their bankers or any advisers acting on their behalf;
(iv)any business to whom the Customer’s indebtedness or the Company’s arrangements with its financiers may be transferred - to facilitate such transfer;
(d) may monitor and/or record any phone calls the Customer may have with them, for training and/or security purposes;
(e) in the event that they transfer all or any of their rights and obligations under their agreement with the Company to a third party, they may transfer information about the Customer to enable the third party to enforce their rights or comply with the obligations.
The Company will provide the Customer with details of its financiers on request, including a contact telephone number if the Customer wants to have details of the credit reference agencies and other third parties referred to above from whom they obtain and to whom they may give information about the Customer. The Customer also has a right to receive a copy of certain information they hold about it if it applies to them in writing. However a fee will be payable.
