Terms & conditions

The customer's attention is drawn in particular to the provisions of clause 9.

1. Interpretation

1.1 Definitions:

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

“C.I.F” (Cost, Insurance and Freight): has the meaning set forth in the INCOTERMS 2020 published by the International Chamber of Commerce, except as modified by the Contract.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.4 .

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

Customer: the person or firm who purchases the Goods from the Supplier.

Force Majeure Event: an event, circumstance or cause beyond the Supplier’s reasonable control, including but not limited to events, circumstances or causes affecting fishing and/or harvesting.

Goods: the goods (or any part of them) set out in the Contract.

Incoterm: the INCOTERMS 2020 published by the International Chamber of Commerce, or any later addition thereof.

Notice of Claim: Written notice of any claim or potential claim by the Buyer to the Supplier, as per clause 8.

Order: the Customer’s request for the Goods, which may be received by post, email or telephone.

Specification: any specification for the Goods that is agreed in writing by the Customer and the Supplier in the Contract.

Supplier: Phoenix Seafoods (UK) Ltd (registered in England and Wales with company number 13330680).

1.2 Interpretation:

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

(b) A reference to a party includes its personal representatives, successors and permitted assigns.

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(e) A reference to writing or written includes email.

2. Basis of contract

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 law, trade custom, practice or course of dealing.

2.2 In the event of any conflict between these Conditions and the Contract, the terms of the Contract will prevail.

2.3 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.

2.4 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.5 A quotation for the Goods given by the Supplier shall not constitute an offer. Quotations will be subject to reconfirmation by the Supplier.

3. Delivery

3.1 The Supplier shall deliver the Goods to the Customer and the Customer shall take delivery of the Goods from the Supplier in accordance with any applicable Incoterm agreed between the parties.

3.2 Unless otherwise specified in the Contract, Goods will be deemed to be sold on CIF (Incoterms 2020) terms, and delivery is deemed to take place when the Supplier delivers or procures the delivery of the Goods to the Buyer on board the first carrying vessel at the port of shipment.

3.3 Any dates quoted for delivery to the port of shipment and/or destination are approximate only, and the time of delivery is not of the essence.

3.4 The Supplier shall not be liable for any loss or damage of whatsoever nature arising as a result of delay in delivery of the Goods to the port of shipment and/or destination, or failure to deliver the Goods to the port of shipment or destination by a particular date, howsoever caused.

4. Quality

4.1 The Specification of the Goods, if agreed between the Parties, shall be as set out in the Contract

4.2 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 or any amendments thereto are, to the fullest extent permitted by law, excluded from the Contract.

4.3 Without limiting its other rights or remedies, if the Goods are not of the agreed Specification, the Supplier may, at its option, replace the Goods, or refund the price of the Goods in full.

5. Title and risk

5.1 The risk in the Goods shall pass to the Customer on completion of delivery in accordance with clause 3.

5.2 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 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

5.3 Notwithstanding clause 5.2, where the Supplier has delivered goods to the Customer under a number of contracts, 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.

5.4 Until title to the Goods has passed to the Customer, the Customer shall:

(a) hold the Goods as bailee;

(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;

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

(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.1(b) to clause 10(d); and

(f) give the Supplier such information as the Supplier may reasonably require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Customer.

5.5 Until title has passed in accordance with clauses 5.1 to 5.3, the Supplier licences the Customer to sell the Goods. If the Customer sells the Goods under licence, it must immediately make payment to the Supplier for the Goods in full, whether or not an invoice has been issued. The Supplier reserves the right to revoke this licence at any time by giving notice to the Customer.

5.6 At any time before title to the Goods passes to the Customer, the Supplier may require the Customer to deliver up all Goods in its possession 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.

6. Price and payment

6.1 The price of the Goods shall be the price set out in the Contract or as otherwise agreed in writing.

6.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods by up to 10% to reflect any increase in the cost of the Goods that is due to:

(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in transport, labour, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

6.3 Except as otherwise stated in the Contract, the price of the Goods is given on a CIF basis and excludes amounts in respect of value added tax (VAT) or any other applicable tax or charge, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate.

6.4 The Supplier may invoice the Customer for the Goods on or at any time before or after the completion of delivery in accordance with clause 3.

6.5 Unless otherwise agreed in the Contract, the Customer shall pay each invoice submitted by the Supplier:

(a) within 30 days of the date of the invoice; and

(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

6.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this 6.6 will accrue at a rate of 1.5% a month.

6.7 All amounts due under the Contract shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6.8 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 Customer to the Supplier.

7. Lien

7.1 The Supplier shall have a lien over the Goods and all other property of the Customer within the Supplier’s control (including other goods to be supplied to the Customer by the Supplier where title has not yet passed) until such time as any amount owing to it by the Customer has been received in full under this Contract or any other between the parties, including but not limited to, sums due in respect of demurrage and storage.

7.2 The Supplier shall be entitled to sell the Goods and any other property which is subject to the lien at clause 7.1 in order to satisfy sums due by the Customer in whole or in part.

8. Claims Procedure

8.1 In respect of quality and / or quantity claims:

(a) The Customer must give written Notice of Claim within 7 days of the Customer taking physical possession of the Goods.

(b) If Notice of Claim is not received within 7 days the Goods shall be deemed to be in all respects in accordance with the Contract.

(d) Upon notice to the Customer, the Supplier is to be given a reasonable opportunity of inspecting and sampling the Goods.

8.2 The Customer must give written Notice of Claim of claims of any other nature within 14 days of the Customer taking physical possession of the Goods.

8.3 Written Notice of Claim must be given to the Supplier within the time limit specified in clauses 8.1(a) and 8.2 or as specified in the Contract. Any claim not notified within the specified time limit shall be deemed waived and absolutely barred and the Supplier shall be discharged of all liability whatsoever and howsoever arising.

9. Limitation of liability

9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9.2 The Supplier's total liability to the Customer shall not exceed the price of the Goods as set out in the Contract.

9.3 The following types of loss are wholly excluded:

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings;

(e) loss of or damage to goodwill; and

(f) indirect or consequential loss.

9.4 Loss caused by defects in or shortage to the Goods which are not notified to the Supplier in accordance with clause 8 is wholly excluded.

9.5 Notwithstanding 9.2 – 9.4, nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation;

(d) defective products under the Consumer Protection Act 1987.

9.6 This clause 9 shall survive termination of the Contract.

10. Termination

10.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a) 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 3 days of that party being notified in writing to do so;

(b) 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), obtaining a moratorium, 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];

(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

(e) The Supplier’s insurer withdraws the credit limit for the Customer.

10.2 For the avoidance of doubt, a material breach of the Contract includes but is not limited to a failure by the Customer to make payment, and a failure by the Customer to take delivery of the goods, in accordance with these Conditions or as otherwise agreed as per clause 12.4.

10.3 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 10.1(b) to 10.1(d), 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.

10.4 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.

10.5 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 and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.

10.6 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

10.7 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

11. Force majeure

The Supplier shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract, in whole or in part, if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks , the Supplier may terminate the Contract by giving 7 days' written notice to the Customer.

12. General

12.1 Assignment and other dealings.

(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

12.2 Confidentiality.

(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2(b).

(b) Each party may disclose the other party's confidential information:

(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this 12.2; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

12.3 Entire agreement.

(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) The Customer agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. The Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

12.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.5 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.

12.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this 12.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

12.7 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to the following address: tim@phoenixseafoods.com

(b) Any notice or communication shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this 12.7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

12.8 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

12.9 Arbitration.

(a) This Contract shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Contract shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause. The seat of the arbitration shall be England, even where the hearing takes place outside England.

(b) The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced.

(c) The reference shall be to three arbitrators, one to be appointed by each party and the third, subject to the provisions of the LMAA Terms, by the two so appointed. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within 14 calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified in the notice, the party referring a dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both parties as if the arbitrator had been appointed by agreement.

(d) Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.

(e) In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 (or such other sum as the parties may agree) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.

(f) In cases where the claim or any counterclaim exceeds the sum agreed for the LMAA Small Claims Procedure and neither the claim nor the counterclaim exceeds the sum of US$400,000 (or such other sum as the parties may agree) the parties may further agree that the arbitration shall be conducted in accordance with the LMAA Intermediate Claims Procedure current at the time when the arbitration proceedings and commenced. Where the reference is to three arbitrators the procedure for making appointments shall be in accordance with the procedure for full arbitration stated above.

12.10 Anti-bribery and Corruption.

(a) The Customer represents, warrants and undertakes that neither it nor any member of its organization has committed any breach and shall at all times comply with all laws, rules and regulations applicable to the Supplier and/or the Customer relating to bribery, corruption and money laundering, including the Bribery Act 2010 (UK) (as amended from time to time) and have procedures in place that are, to the best of its knowledge, designed to prevent the commission of any offence under such legislation by any member of its organization or by any person providing services for it or on its behalf.

(b) The Customer represents and warrants that it has neither paid nor received a bribe or made a corrupt payment, whether directly or indirectly, in connection with these Conditions.

(c) The Customer shall promptly notify the Supplier if, at any time during the term of these Conditions, its circumstances, knowledge or awareness changes such that it would not be able to repeat the representations and warranties set out in Clause 12.10(a) and/or Clause 12.10(b).

(d) In the event the Customer is in breach of this Clause 21, the Supplier may terminate the Contract and the Supplier shall not be liable to the Customer for any losses, claims, costs, expenses, damages or liabilities arising in connection with any such termination.

(e) To the full extent permitted by applicable law, the Customer shall indemnify the Supplier against any and all costs, expenses, losses and liabilities it incurs as a result of the Customer being in breach of its obligations under this Clause 12.10.