Interpretation
In these Conditions, the following definitions shall apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with Condition 12.9;
Confidential Information: all information disclosed (whether in writing, verbally or otherwise and whether directly or indirectly) by one party to another party including, any information relating to Goods including all Intellectual Property Rights, operations, processes, plans or intentions, client information, product information, market opportunities and business affairs or those of clients or other contacts that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure;
Contract: the contract for the supply by Sykes to the Customer of the Goods comprising of these Conditions and the Order Confirmation Email and which shall come into existence in accordance with Condition 2.3;
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression Change of Control shall be construed accordingly;
Customer: the person, firm or company named as such in the Order Confirmation Email;
Force Majeure Event: an event or circumstance beyond a party’s reasonable control which by its nature could not have been foreseen, or, if it could have been foreseen was unavoidable;
Goods: any fresh or frozen seafood or other goods (or any part of them) supplied by Sykes to the Customer, as set out in the Order
Confirmation Email;
Insolvency Event: one or more of the following events: (a) any distress, execution or other process levied upon any of the assets of a party; (b) where a party suspends, or threatens to suspend, payment of its debts or is, or is deemed, unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986; (c) where a party convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or any court proceedings once commenced, notice given or petition passed for any of the foregoing; or (d) an event analogous to (a) to (c) above in any other jurisdiction;
Intellectual Property Rights: any and all copyrights, moral rights, related rights, patents, supplemental protection certificates, petty patents, utility models, trade marks, trade names, service marks, design rights, database rights, website rights, semi-conductor topography rights, domain name rights, rights in undisclosed information or Confidential Information, rights in get up, goodwill or to sue for passing off, unfair completion rights, and other similar intellectual property rights (whether registered or not) and applications for any such rights as may exist anywhere in the world;
Order: the Customer’s order for the Goods, which may be placed by telephone, e-mail, via Sykes’ website, or by such other method and in such form as may be specified by Sykes from time to time;
Order Confirmation Email: the order confirmation email which contains full details of the Order and which Sykes issues to the Customer in accordance with Condition 2;
Construction. In these Conditions, the following rules shall apply:
a reference to a Condition is to a condition of these Conditions;
a reference to persons shall include a natural person, company, LLP, corporate, firm, partnership, joint venture, association, trusts, unincorporated bodies and associations and reference to any party or person shall include their personal representatives, successors and permitted assigns;
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;
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 shall be deemed to incorporate the expression without limitation;
a reference to writing or written excludes fax but includes email.
Basis of contract
These Conditions apply to each Order 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.
When the Customer places an Order, this constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the Order process is correctly followed and that the information submitted is complete and accurate at the time it the Order is placed.
The Order shall only be deemed to be accepted when Sykes issues the Order Confirmation Email, at which point the Contract shall come into existence. The Customer is responsible for ensuring that the Order Confirmation Email is complete and accurate.
A quotation for the Goods given by Sykes shall not constitute an offer and is strictly subject to the Order being confirmed by an Order Confirmation Email.
Nothing in these Conditions shall oblige Sykes to accept an Order.
Sykes supplies Goods to businesses only and does not accept orders from consumers.
The Goods
The quantity and description of the Goods, together with any other special terms concerning the Goods, shall be as set out in the Order Confirmation Email.
Any samples, photographs or descriptive material relating to the Goods either supplied by Sykes or displayed on Sykes’ website are for illustrative purposes only and shall not form part of the Contract nor have any contractual effect.
Delivery
Sykes shall arrange for the Goods to be delivered to the location set out in the Order Confirmation Email or such other location as the parties may agree (Delivery Location).
Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
The Customer shall ensure it has adequate equipment, storage and labour to accept delivery of the quantity of Goods comprised in the Order Confirmation Email.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Sykes shall not be liable for any delay or failure in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Sykes with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If Sykes 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. Sykes 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 Sykes with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Customer fails to take delivery of the Goods at the time of attempted delivery by Sykes, or if Sykes is unable to make delivery due to a failure on behalf of the Customer, then, except where such failure or delay is caused by a Force Majeure Event or Sykes’s failure to comply with its obligations under the Contract: delivery of the Goods shall be deemed to have been completed at the time of attempted delivery, and Sykes shall store the Goods until delivery takes place, and may charge the Customer for all related costs and expenses (including insurance).
Sykes may (at its discretion) deliver the Goods by instalments, which may (at Sykes’ discretion) be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
The Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by Sykes, the Customer shall make those licences and consents available to Sykes prior to the relevant shipment.
Quality
Sykes warrants that on delivery the Goods shall:
conform in all material respects with their description, and be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
Subject to Condition 5.3, if the Customer gives written notice to Sykes within 1 Business Day of delivery that the Goods do not comply with the warranty set out in Condition 5.1, Sykes may, at its option, replace the Goods, or refund the price of the Goods. Notwithstanding the foregoing, Sykes shall be given a reasonable opportunity to examine the alleged deflect to determine (in its sole discretion) whether the Goods do not comply with the warranty. The Customer shall ensure that any Goods to be returned to Sykes under this Condition 5 are: stored in accordance with Sykes oral or written instructions (including at the relevant storage temperature) or, if no such instructions are provided by Sykes, in accordance with good trade practice for storing perishable goods of the same nature as the Goods; returned promptly and in any event within 2 Business Days of the Customer becoming aware of the alleged defect. Sykes will cover the cost of returning the Goods, provided Sykes determines that the Goods do not comply with the warranty.
Sykes shall not be liable for the Goods’ failure to comply with the warranty set out in Condition 5.1 in any of the following events: the Customer makes any further use of the Goods after giving notice in accordance with Condition 5.2; the defect arises because the Customer failed to follow Sykes’s oral or written instructions as to the storage (including storage temperature), use of the Goods or where no such good trade practice regarding the storage and use of instructions are provided by Sykes, perishable goods, the Goods of the same nature as the Goods and the Goods are not resalable; or the defect arises as a result of willful damage, negligence, or abnormal storage or working conditions.
Except as provided in this Condition 5, Sykes shall have no liability to the Customer in respect of any failure of the Goods to comply with the warranty set out in Condition 5.1.
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.
The terms of the Contract shall apply to any replacement Goods supplied by Sykes.
Due to the perishable nature of the Goods, save as provided for in Condition 5.2, Sykes can only accept returns of the Goods in very limited circumstances.
Title and Risk
The risk in the Goods shall pass to the Customer at the time of delivery of the Goods in accordance with Condition 4.
Title to the Goods shall not pass to the Customer until Sykes receives payment in full (in cash or cleared funds) for the Goods or until the Customer takes possession of the Goods (whichever is later).
Subject to Condition 6.4, until title to the Goods has passed to the Customer, the Customer shall: store in accordance with Sykes oral or written instructions (including at the relevant storage temperature) or, if no such instructions are provided by Sykes, in accordance with good trade practice for storing perishable goods of the same nature as the Goods; not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; notify Sykes immediately if it becomes subject to an Insolvency Event, and give Sykes such information relating to the Goods as Sykes may require from time to time.
The Customer may resell the Goods before the title to the Goods has passed to it on the following conditions: any resale shall be effected in the ordinary course of the Customer’s business at full market value, and any such resale shall be a resale on the Customer’s own behalf and the Customer shall deal as principal when making such a resale; title to the Goods shall pass to the Customer immediately before the resale; and the proceeds of the resale shall be held on trust by the Customer for Sykes’ benefit until such time as full payment for the Goods under the relevant Order has been made.
If before title to the Goods passes to the Customer becomes subject to an Insolvency Event, then, without limiting any other right or remedy Sykes may have, Sykes may at any time 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.
Price and payment
The price of the Goods shall be the price set out in the relevant Order Confirmation Email or, if no price is quoted, the price determined by Sykes (in accordance with Sykes’s standard price lists from time to time).
Sykes 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: any factor beyond Sykes’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or any delay caused by any instructions of the Customer or failure of the Customer to give Sykes adequate or accurate information or instructions.
The price of the Goods: excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Sykes at the prevailing rate, subject to the receipt of a valid VAT invoice; and excludes the costs and charges of packaging, insurance and transport of the Goods which shall be invoiced to the Customer.
Sykes may invoice the Customer for the Goods on or at any time after the Order has been placed. Depending on the quantity and nature of the Order, Sykes may require payment in full in advance prior to procuring delivery of the Goods.
If Sykes agrees to extend credit terms to the Customer, then the Customer shall pay the invoice in full and in cleared funds within the time period stipulated on the invoice or in the Order Confirmation Email or, if no such time period is stipulated, within 20 Business Days of the date of the invoice.
Any payments made by the Customer to Sykes shall be by way of the payment method prescribed by Sykes. If the Order is placed online, payment may be made via Sykes website or using the available line of credit where applicable. Sykes may also accept payment by other methods which it may notify the Customer of during the Order process.
If the Customer fails to make any payment due to Sykes under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% 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 the actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
If the Customer fails to make any payment due to Sykes under the Contract by the due date for payment, then without prejudice to Sykes’ other rights and remedies, Sykes may at its discretion suspend processing any Order (whether or not such Order forms part of the contract to which the default payment relates or a separate contract with the Customer) until such time as it receives payment of the outstanding amount in full from the Customer.
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). Sykes 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 Sykes to the Customer.
The Customer shall be responsible for any customs duties, clearance charges, taxes, brokers’ fees and other amounts payable (if any) in connection with the exportation and delivery of the Goods.
Termination
Sykes may immediately terminate the Contract by written notice to the Customer if the Customer: commits an irremediable material breach of any term of the Contract or, if remediable, is not remedied within 5 Business Days of being notified in writing to do so; fails to pay any amount due under the Contract on the due date for payment; suffers an Insolvency Event, suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business, or is subject to a Change of Control.
Expiry or termination of the Contract shall be without prejudice to any other rights which Sykes may have under the Contract or otherwise at law and without prejudice to any rights and liabilities which Sykes may have accrued prior to the date on which termination takes effect.
On expiry or termination of the Contract for any reason the Customer shall immediately pay to Sykes all of Sykes’s outstanding unpaid invoices together with interest and shall return to Sykes (or if requested by Sykes, destroy) all Confidential Information in its possession.
Any provisions in these Conditions which expressly or by implication survive expiry or termination of the Contract shall continue in full force and effect following expiry or termination.
Limitation of liability
Nothing in the Contract shall limit or exclude Sykes’s liability for: death or personal injury caused by its negligence, or the negligence of its officers, employees, agents or subcontractors (as applicable); fraud or fraudulent misrepresentation; breach of the terms implied by section 12 of the Sale of Goods Act 1979; any matter in respect of which it would be unlawful for Sykes to exclude or restrict liability.
Subject to Condition 9.1:
Sykes 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, loss of business, damage to goodwill or any indirect or consequential loss arising under or in connection with the Contract; and Sykes’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 125% of the price of the Goods under the Contract.
Confidentiality
Each party agrees and undertakes that it will treat any and all Confidential Information disclosed to it by the other party as strictly confidential and shall use it solely for the purpose contemplated by the Contract and shall not without the prior consent of the other party, publish or otherwise disclose to any third party any such Confidential Information except for the purposes contemplated by the Contract.
The obligations of confidentiality set out in this Condition 10 shall not apply to any information or matter which: (a) is in the public domain other than as a result of a breach of the Contract; (b) was in the possession of the receiving party prior to the date of receipt from the disclosing party or was rightfully acquired by the receiving party from other sources; (c) is required to be disclosed by law, by a competent court or body or (d) was independently developed without reference to the Confidential Information.
Compliance with Laws
The Customer shall: (a) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including the Bribery Act 2010; (b) have and shall maintain in place its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with such legislation; and (c) promptly report to Sykes any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of the Contract.
General
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
The Customer acknowledges that Sykes owns all Intellectual Property Rights in its trademarks, logos, documentation, packaging and branding. Unless expressly provided otherwise, no right or licence in respect of any Intellectual Property Rights is granted by Sykes to the Customer under the Contract.
The Contract shall constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to its subject matter.
Each party acknowledges and agrees that in entering into the Contract, it has not relied on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
The Customer shall not, without Sykes’s prior written consent, assign, transfer or charge, or subcontract all or any of its obligations under the Contract. Sykes may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
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 or email address as that party may notify to the other party from time to time), and shall be delivered personally, sent by pre-paid first class post, other next working day delivery service or by email. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the other party’s address; if sent by pre-paid first class post or other next working day delivery service, at on the second business day after posting; if sent by email, at the time of successful transmission.
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 Condition shall not affect the validity and enforceability of the rest of the Contract.
Delay or failure in exercising any right or remedy in connection with the terms of the Contract will not operate as a waiver of that right or remedy. No waiver will be effective unless it is in writing and signed by the party granting it. A person or entity who is not a party to the Contract shall not have any rights to enforce its terms.
Sykes may modify these Conditions from time to time. Each time you submit an Order you should check these Conditions to ensure you understand the conditions upon which we supply our Goods. Any changes to these conditions will be effective upon posting on our website, however unless otherwise agreed, any changes will not apply to any Contract in existence prior to the date of such change. Subject to the foregoing, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Sykes.
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of England.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).