Flying Fish Seafoods Company Limited, Old School Industrial Park, Moorland Road, Indian Queens, Cornwall, TR9 6JP (No. 05850222)
Terms & Conditions
1.1 Definitions:
1.1.1. Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
1.1.2. Conditions: these terms and conditions set out in Clause 1 to Clause 14 (inclusive).
1.1.3. Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
1.1.4. Customer: the person, company or firm who purchases the Goods from the Supplier. Where a person purchases in the name of a firm or company, it is the firm or company who is the Customer.
1.1.5. Delivery Date: the date specified for delivery of an Order in accordance with Clause 3.
1.1.6. Delivery Address: the address provided by the Customer for delivery of the Goods.
1.1.7. Delivery Location: the place designated by the Customer for unloading/ storage of the Goods
1.1.8. Force Majeure Event: has the meaning given in Clause 13.
1.1.9. Goods: prepared wholesale food including fish, crustaceans and molluscs (or any part of them).
1.1.10. Order: an order for the Goods submitted by the Customer in accordance with Clause 3.
1.1.11. Preparation: the preparation of the Goods according to the Customer’s instructions for example, skinned, pin-boned, filleted etc.
1.1.12. Supplier: FLYINGFISH SEAFOODS COMPANY LIMITED (Company No: 05850222) of Old School Industrial Park, Moorland Road, Indian Queens, Cornwall, TR9 6JP
1.1.13. Supplier’s Usual Opening Hours: 7.00am to 3.00pm Monday to Friday.
1.2 Interpretation:
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.
1.2.1 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; and
1.2.3 a reference to writing or written includes fax and emails save where the written document in question constitutes a Notice under Clause 7 in which case faxes and emails are specifically excluded.
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 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 shall give the Supplier all necessary information relating to the Goods and their Preparation that the Supplier reasonably requires to fulfil each Order. The Customer is responsible for ensuring Preparation instructions are complete and accurate.
2.3 An Order shall only be deemed to be accepted when the Supplier verbally acknowledges it in accordance with Clause 3 at which point the Contract shall come into existence. The parties agree that fulfilment of an Order is expressly subject to: –
a. availability of the Goods which can and will fluctuate;
b. provision of adequate Preparation instructions by the Customer;
c. the Goods being of a species which the Supplier is permitted to sell and which are not a protected species under the Conservation of Offshore Marine Habitats and Species Regulations 2017.
2.4 The parties agree that where the Supplier anticipates that it will be unable to meet the Customer’s Order, the Supplier may unilaterally vary the Contract to relieve it of any obligation in relation to any Goods which it is unable to supply. In such circumstances, the Supplier will, where it is reasonably practicable to so do, notify the Customer in accordance with Clause 5.
2.5 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.
2.6 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s advertising literature, website or social media pages 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. This is not a sale by sample. The Supplier accepts no responsibility for the Customer’s description of the Goods.
2.7 A quotation for the Goods given by the Supplier in accordance with Clause 1 shall not constitute an offer, and an Order can only be placed in accordance with Clause 3.2.
3. Orders
3.1 The Supplier shall notify the Customer, using any agreed method of communication, but usually by telephone, of what Goods are expected to be available and the current price for the Goods.
3.2 The Customer shall place Orders verbally with the Supplier during the Supplier’s Usual Opening Hours and when doing so shall: –
a. provide details of the Delivery Address(es), the Delivery Location(s) and the desired Delivery Date(s);
b. indicate their preference for the preparation of the Goods;
c. confirm whether a Purchase Order Number is required on the invoice and, if so, shall provide any relevant details required; and
d. confirm whether proof/s of delivery are required and, if so, to provide instructions for how those are to be facilitated by the Customer.
3.3 The Supplier may accept or decline Orders at its absolute discretion including where a Supplier fails to confirm details of any Purchase Order Number, or fails to sufficiently detail Preparation as set out in Clause 2.2.
3.4 The Supplier is SALSA approved which means that it is required to demonstrate to a SALSA auditor that it is able to produce safe and legal food and is committed to continually meeting the requirements of the SALSA standard. The parties expressly agree that where the Supplier anticipates that it will be unable to meet the Customer’s Order because it does not meet the SALSA standard, the Supplier may unilaterally vary the Contract to relieve it of any obligation in relation to any Goods which it is unable to supply for those reasons. In such circumstances, the Supplier will, where it is reasonably practicable to so do, notify the Customer in accordance with Clause 5.
3.5 If the Supplier anticipates that it will be unable to meet the Customer’s Order:
a. the Supplier shall inform the Customer as soon as practicable; and
b. the Customer may at its option agree alternative delivery dates for the relevant Goods, a substitution, if available, for that part of the Order which the Supplier is unable to fulfil;
3.6 All Orders should be placed by 12pm if the Customer has specified a next day Delivery Date. If the Customer places an order after this time and has specified a next-day Delivery Date, it acknowledges that the Supplier is under no obligation to endeavour to meet that date.
4. Amendment & Cancellation
4.1 The Supplier may, at its discretion, accept an amendment to an Order by the Customer, save that amendments will not usually be accepted after 12pm.
4.2 Once an Order has been placed, the Customer may only cancel the Order at the discretion of the Supplier. Requests to cancel will only be considered if received, either in writing or verbally, by the Supplier during its Usual Working Hours and if received on the same day the Order and before 12pm. Cancellation is at the absolute discretion of the Supplier and may not always be possible, particularly where the Preparation is of a non-standard or bespoke nature.
4.3 If the Customer amends or cancels an Order, its liability to the Supplier shall be limited to payment to the Supplier of all costs reasonably incurred by the Supplier in fulfilling the Order up until the time/date of deemed receipt of the amendment or cancellation, except that the Customer shall have no liability to the Supplier where the amendment or cancellation results from the Supplier’s failure to comply with its obligations under this agreement.
5. Delivery
5.1 The Supplier shall ensure that each delivery of Goods is accompanied by an invoice which shows the price, type, quantity and description of the Goods (including any code number, batch or order of the Goods, where applicable) and special storage instructions (if any).
5.2 The Supplier shall endeavour to deliver Goods to the Delivery Location(s) on the relevant Delivery Date but the delivery time is not of the essence.
5.3 Deliveries are often made outside of the Customer’s usual working hours and proof of delivery cannot always be obtained. If the Customer requires proof of delivery it is responsible for
a. facilitating the means by which such proof of delivery is to be effected by the Supplier; and
b. ensuring that the Supplier is made aware of this requirement when the Order is placed under Clause 3.
5.4 The Supplier accepts no responsibility for costs resulting from the Customer’s failure to facilitate the means for providing a proof of delivery in accordance with this Clause.
5.5 Delivery is completed on the completion of unloading of the Goods at the Delivery Location or the handover of Goods where the Customer elects to collect them from the Supplier.
5.6 The Supplier accepts no responsibility for loss, theft or damage to Goods after Delivery to a Delivery Location elected by the Customer.
5.7 The Customer is responsible for ensuring that any changes to the Delivery Address or Delivery Location are brought to the Supplier’s attention promptly and for providing any updated access information such as key or door codes and alarm systems. The Supplier accepts no responsibility for costs resulting from the Customer’s failure to notify in accordance with this Clause.
5.8 If the Customer fails to supply or update details of the Delivery Location, the Supplier or its agent will use reasonable endeavours to place the Goods in a secure and appropriate location. However, the Supplier accepts no responsibility for the loss, theft or damage of the Goods where the Supplier or agent has had no option but to elect its own Delivery Location.
5.9 The Supplier or its agent reserve the right to abort a Delivery if the Supplier or agent, acting reasonably, deems the Delivery Location as unsafe or insecure.
5.10 The Supplier shall not be liable for any delay in delivery of any Goods that is caused by:
a. a Force Majeure Event; or
b. 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.
5.11 If the Supplier fails to deliver Goods by the relevant Delivery Date, 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 Goods to the extent that such failure is caused by:
a. Force Majeure Event; or
b. 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.
5.12 If after 1 Business Day after the day on which the Supplier attempted to make delivery of Goods the Customer has not taken delivery of those Goods, the Supplier may resell or otherwise dispose of part or all of Goods and, after deducting reasonable delivery, 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.
5.13 Any issue identified by the Customer in relation to quality, quantity, description or price of Goods delivered should be notified to the Supplier within 24 hours of delivery. If the Customer elects to collect the Goods, the Goods and invoice should be examined immediately and any issue identified brought to the Supplier’s attention before they leave the Supplier’s premises.
6. Quality And Fitness For Purpose
6.1 The Supplier warrants that upon Delivery or collection the Goods shall:
a. conform with their description;
b. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979);
c. be fit for any purpose held out by the Supplier; and
d. comply with the Food Safety Act 1990 and all relevant UK legislation from time to time in force.
save that the parties acknowledge and agree that whilst the Goods are intended for human consumption, they originate from natural sources and even where the Supplier takes all reasonable precautions and exercises all relevant due diligence, it cannot be guaranteed that the Goods are free from, inter alia, inherent and latent defects, disease or other pollutants which may prove injurious or potentially injurious to human health. The Supplier shall bear no liability for such defects or for the consequences arising from the consumption of any Goods which are so affected and in any event is afforded a defence under the Section 21 of the Food Safety Act 1990 in these circumstances.
6.2 Subject to Clause 3, if:
a. the Customer gives notice in writing (quoting the relevant batch number) to the Supplier promptly after discovery that some or all of the Goods do not comply with the warranties set out in Clause 1; and
b. the Supplier or its agent is given a reasonable opportunity of examining such Goods; and
c. 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, refund the price of such defective Goods in full.
6.3 The Supplier shall not be liable for Goods’ failure to comply with the warranties set out in Clause 1 if:
a. the Customer alters or further prepares the Goods, for example, by smoking fish items;
b. the Customer makes any further use of such Goods after giving notice of defects in accordance with Clause 1;
c. the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage of the Goods or (if there are none) good trade practice regarding the same;
d. the defect arises as a result of the Supplier following any Preparation instructions supplied by the Customer;
e. the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions by the Customer or a third party; or
f. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements, which shall include changes made to ensure that they comply with the Supplier’s obligations under its SALSA accreditation.
6.4 The Supplier’s only liability to the Customer is if the Goods fail to comply with the warranties set out in Clause 1.
6.5 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.
6.6 The terms of the Contract shall apply to any substituted or replacement Goods supplied by the Supplier.
7. Title And Risk
Title and risk in Goods shall pass to the Customer on completion of unloading the Goods at the Delivery Location or on handover of the Goods where the Customer elects to collect the Goods from the Supplier premises.
8. Regulatory Or Other Notice
8.1 If the Customer is the subject of a request, court order or other directive of a governmental or regulatory authority such as the Food Standards Agency which affects the Goods (Notice) it shall immediately notify the Supplier in writing enclosing a copy of the Notice.
8.2 Unless required by law, the Customer may not issue any statement about the provenance or quality of any Goods subject to the Notice without the written permission of the Supplier and only then in strict compliance with the Supplier’s instructions as to the wording of such statement.
9. Price And Payment
9.1 The Customer acknowledges and accepts that the price for the Goods is subject to external market conditions outside of the control of the Supplier which fluctuate constantly and the price for the Goods shall therefore be the Supplier’s price as notified under Clause 1 or, if no price is quoted, the price set out in the Supplier’s invoice.
9.2 Unless otherwise notified by the Supplier the price of the Goods is inclusive of the costs and charges of packaging, insurance and transport of the Goods. Where a separate charge is agreed with the Customer the charge shall be invoiced to the Customer.
9.3 The price of the Goods 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 (if applicable), subject to the receipt of a valid VAT invoice.
9.4 The Supplier reserves the right to request full or part payment for the Goods prior to delivery or if the Supplier has agreed to enter into a credit arrangement with the Customer, the Customer shall pay invoices in full in cleared funds by the end of the month following the month in which the invoice was raised or unless otherwise agreed in writing with the Supplier. Payment shall be made to the bank account nominated in writing by the Supplier.
9.5 The Supplier reserves the right to suspend, reduce or cancel the Customer’s credit terms at any time or to request an interim or part-payment when the Customer has reached or exceeded the credit limit agreed between the Customer and the Supplier.
9.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under Clause 12:
a. The Supplier may impose interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base 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. The Customer shall pay the interest together with the overdue amount, as well as any Legal or Court costs incurred recovering outstanding monies;
b. the Supplier may suspend all further deliveries of Goods until payment has been made in full.
9.7 The Guarantors as principal obligor and as a separate and independent obligation and liability from their obligations and liabilities under Clause 7 agree to indemnify and keep indemnified the Supplier in full and on demand from and against all and any losses, costs, claims, liabilities, damages, demands and expenses suffered or incurred by the Supplier arising out of, or in connection with, any payments due not being recoverable for any reason or any failure of the Customer to perform or discharge any of its obligations or liabilities in respect of the Contract.
9.8 The Customer (or the Guarantors) shall pay all amounts due under the Contract in full without set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Supplier to the Customer.
10. Limitation Of Liability
10.1
a. Nothing in this Contract shall limit or exclude the Supplier’s liability for:
b. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
c. fraud or fraudulent misrepresentation;
d. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
e. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to Clause 1:
a. The Supplier shall under no circumstances whatever 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
b. 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.
11. Compliance With Relevant Laws And Policies
11.1 In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and codes from time to time in force; provided that the Supplier shall not be liable under this agreement if, as a result of such compliance, it is in breach of any of its obligations under this agreement.
11.2 The Customer may immediately terminate the Contract for any breach of this Clause 11 by the Supplier.
12. Termination
12.1 Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving notice to the other party if:
a. the Customer is in default of Clause 2.3(b);
b. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
c. the other party 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;
d. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
e. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.2 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 which existed at or before the date of termination.
12.3 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.
13. Force Majeure
13.1 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.
13.2 Force Majeure Event means any circumstance not in a party’s reasonable control including, without limitation:
a. adverse traffic conditions;
b. mechanical breakdown of delivery vehicles or involvement in an accident;
c. acts of God, flood, drought, earthquake or other natural disaster;
d. epidemic or pandemic;
e. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
f. nuclear, chemical or biological contamination, or sonic boom;
g. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
h. collapse of buildings, fire, explosion or accident;
i. any labour or trade dispute, strikes, industrial action or lockouts;
j. non-performance by suppliers or subcontractors and including specifically any failure by a supplier or subcontractor to land the Goods; and
k. interruption or failure of utility service.
13.3 Provided it has complied with Clause 13, if the Supplier is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event, it shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.4 The corresponding obligations of the Customer will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Supplier.
13.5 The Supplier shall:
a. as soon as reasonably practicable after the start of the Force Majeure Event, notify the Customer of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
b. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
14. General
14.1 Assignment and other dealings. The Customer shall not assign, transfer, charge, subcontract, 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. The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
14.2 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 or of any member of the group to which the other party belongs, except as permitted by Clause 14.1(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
b. Each party may disclose the other party’s confidential information:
i. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 2; and
ii. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
c. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
14.3 Entire agreement.
a. This 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. Each party 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
14.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.5 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
a. waive that or any other right or remedy; nor
b. prevent or restrict the further exercise of that or any other right or remedy.
14.6 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.
14.7 Notices.
a. 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 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, or sent by pre-paid first class post or other next working day delivery service, commercial courier or fax but not email.
b. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 7(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, one Business Day after transmission. The use of text message or email is exclusively prohibited for the purposes of notice. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.8 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.
14.9 Governing law. This 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.
14.10 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.
