Terms & Conditions

MARINE FABRICATIONS (STAFFORDSHIRE) LIMITED 

 

1. Basis of Contract and Precedence of documents. 

 

1.1. The Contract contains the entire agreement between the Supplier and the Customer with respect to its subject matter and supersedes all prior communications and agreements. The Customer acknowledges that in entering into the Contract it does not rely on any communication, statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier that has not been expressly set out in the Contract. No terms and conditions submitted by the Customer that are in addition to, different from, or inconsistent with these Terms shall be binding upon the Supplier. Nothing in the Contract shall exclude or limit liability for fraud or fraudulent misrepresentation. 

 

1.2. These Terms apply to the exclusion of any other terms or conditions that may be sought to be invoked by the Customer (including without limitation any terms referenced in any Order or on any online website or electronic platform), or which are implied by trade, custom, practice or course of dealing. The Supplier will not supply on, and expressly rejects: 

 

1.2.1. the Customer’s standard terms and conditions of purchase; and

1.2.2. any terms and conditions other than the terms and conditions stated herein. 

 

1.3. The Customer expressly acknowledges and agrees that any Order which it issues to the Supplier shall be an offer to procure Goods and/or Services from the Supplier under these Terms, and that upon Order Acceptance, both the Supplier and the Customer shall be bound by the terms of the Contract. 

 

1.4. A Contract for the supply of Goods and/or Services is made upon Order Acceptance.  

 

1.5. By accepting possession of any Goods or receiving the benefit of any Services, the Customer acknowledges that Goods and/or Services are supplied in accordance with the terms and conditions of these Terms.   

 

1.6. If there is any conflict or inconsistency between the parts constituting the Contract the parts will rank in the following order: 

 

1.6.1     the Terms; 

1.6.2    any other document attached or referred to in the Terms; 

1.6.3    the Order Acceptance;

1.6.4    any other document attached or referred to in the Order Acceptance;

1.6.5     the Quote;

1.6.6    any other document attached or referred to in the Quote; and

1.6.7     the Order. 

 

1.7 Any Quote given by the Supplier shall not constitute an offer. A Quote shall only be valid for a period of [60] Days from its date of issue. 

 

1.8 No employee or agent or representative of the Supplier has any authority to make any representation, or to give any warranty relating to the Goods and/or Services, or to agree to any variation, or addition to these Terms, unless such representations, warranty, variation or addition is expressed in writing and signed on behalf of the Supplier by a duly authorised signatory of the Supplier.

 

 

2. Definitions and Interpretation:

 

 2.1.

 Amount Payable” means the amount of any debit balance shown on an invoice;

 Day(s)” means all calendar days, including weekends and holidays;

 Contract” means the Order Acceptance, these Terms, the Quote and the Order and any other document which is attached to or incorporated by reference in the Order Acceptance, these Terms or the Quote;

 Customer” means the person who Orders the Goods and/or Services from the Supplier and includes any permitted transferee;

 Delivery Date” has the meaning given in clause 4.5; 

Due Date” means 30 Days from the end of the month of invoice;

 Force Majeure” shall be any event or circumstance beyond the Supplier’s control and shall include but not be limited to any shortage of electricity or water, lack of production, capacity or raw materials, strikes, lock outs, labour disputes, fires, floods, acts of God or public enemy, malicious or accidental damage, delays in transport, breakdowns in machinery, pandemics, hostilities, restrictions or prohibitions by any government or any semi-government authorities or embargoes or any act or omission of the Customer or a third party that would or is likely to result in the Supplier being in breach of any law or this Contract; 

Goods” means the goods specified in the Order which the Supplier agrees to provide in the Order Acceptance;

 Order” means the purchase order issued by the Customer to the Supplier for the Goods and/or Services; 

Order Acceptance” means the Supplier’s acceptance of the Order and consequent agreement to the Contract by either delivering the Goods and/or Services or issuing the Customer with a document named ‘Order Acceptance’ (or similar) or as confirmed as such in an electronic confirmation or, if trading through an e-commerce platform, by accepting an Order through the relevant process;

 POD” means proof of delivery issued to the Customer by the Supplier; 

Quote” means the quote or proposal document issued by the Supplier to the Customer for the Goods and/or Services; 

“Specification” means the drawings supplied by the Customer

Supplier” means  Marine Fabrications (Staffordshire) Limited a private company registered in England and Wales number 03707881.  Its trading address is Queen Street Industrial Estate, Queens Drive, Burntwood, WS7 4QF and its VAT number is 670807134.  Its registered office is at Azzuri House, Walsall Business Park, Walsall WS9 0RB; 

Security Interest” means a mortgage, transfer, pledge, notarial bond, lien or security cession, or any security or preferential interest or arrangement of any kind which allows a creditor to have its claims satisfied prior to other creditors from the proceeds of an asset (including retention of title, deposit of money by way of security or a conditionally repayable deposit or flawed asset arrangement) and includes any interest which can be registered under any law of any other jurisdiction that has an analogous or similar effect; 

Services” means the services specified in the Order which the Supplier agrees to provide in the Order Acceptance; 

Supplier Warranty” the element of any warranty relating only to the quality and/or fitness and/or durability, where that warranty is provided by a supplier to the Supplier and where it relates to a complete product sold as Goods by the Supplier without alteration.

Terms” means these Terms and Conditions of Supply; 

Unsafe” means unacceptable actual or potential hazards and incidents relating to safety, health or the environment. 

 

2.2 In these Terms, unless the context otherwise requires: headings are for ease of reference only and do not affect interpretation; the singular includes the plural and vice versa; a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time; a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; a reference to a legislative requirement or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and the meaning of general words is not limited by specific examples introduced by the words including, for example or similar expressions. The rule of interpretation that a written agreement shall be interpreted against the party responsible for the drafting or preparation of that agreement shall not apply. 

 

 

3. Terms of Sale 

 

3.1. The Supplier may accept or reject any Order in its absolute discretion and for its sole interest at any time.   

 

3.2. If before delivery is effected there arise reasonable grounds for believing that the Customer will not be able to fulfil payment obligations the Supplier shall have the right to demand security from the Customer. If security acceptable to the Supplier is not offered within the period specified by the Supplier (such period not to be unreasonable) the Supplier may terminate the Contract without further liability on its part but the Customer shall be liable to the Supplier in respect of any losses (including loss of profit) incurred by the Company as consequences of such termination. Acceptability of security shall be determined at the sole and absolute discretion of the Supplier.

 

3.3. The Supplier may also without notice suspend or terminate the supply of Goods and/or Services or the granting of any rights where any Amount Payable remain(s) unpaid after the Due Date and the Supplier can recover all costs and losses associated with such suspension or termination action. The Customer must provide the Supplier with a Security Interest for payment as and when required by the Supplier.  

 

3.4 If there are no quality stipulations in the Order, the Order shall be deemed to relate to and require no more than ordinary commercial quality or the standard of quality which is customary for the type of Goods ordered.

 

3.5 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.5 shall survive termination of the Contract. 

 

3.6 The Supplier reserves the right to amend any Specification 

(a) if required by any applicable statutory or regulatory requirement; and 

(b) (after consultation with the Customer) if materials are not available to substitute alternative materials of equivalent quality and fitness for purpose;  

and the Supplier shall notify the Customer in any such event 

 

 

4. Delivery and Risk 

 

4.1. The Supplier will supply the Goods and risk in the Goods will pass to the Customer in accordance with Incoterm EXW.  [Delivery may be made in one or more instalments and at different times or by separate shipments or deliveries]. Adherence to the Delivery Date or delivery period is determined by the date of POD by the Supplier. The Customer’s obligation to take delivery of the Goods is a material obligation under this Contract.  

 

4.2. If the Supplier is not able to deliver the Goods to the Customer on the Delivery Date due to the Customer’s inability, unavailability or unwillingness to accept delivery, the Supplier reserves the right to dispatch any Goods at the Supplier’s discretion or put them into storage at the expense and risk of the Customer. Such cost shall be immediately due and payable on demand, but such liability shall not affect the Customer’s obligation to purchase the Goods and the right of the Supplier to claim damages for breach of such obligation. 

 

4.3. If the Customer fails to collect or take delivery of the Goods within 1 month of the Delivery Date, the Supplier shall be entitled, without prejudice to its other rights, to terminate all or part of the Contract, to dispose of the Goods and to charge the Customer  compensation for the loss which the Supplier has suffered as a result of the customer’s failure to take delivery less the net sum received by the Supplier as a result of exercising its rights of disposal.  

 

4.4. The Delivery Date is estimated in good faith and while reasonable effort is made to meet an estimated Delivery Date the Supplier will not be liable for any loss incurred as a result of delay or failure to make any supply of Goods and/or Services by the Delivery Date. Further, the Supplier will not be liable for any loss incurred as a result of any failure to observe any of these Terms due to an act or omission of the Customer.  

 

4.5 During the continuance of an event of Force Majeure or the effect of an act or omission of the Customer, the Supplier’s obligations under the Contract will be suspended and timeframes adjusted accordingly.  

 

4.6 The Customer must notify the Supplier in writing within 7 Days of date of POD of any damage or shortage to the Goods. If the Customer does not notify the Supplier within such time period, the Customer is deemed to have accepted the Goods unconditionally. 

 

 

5. Customer Returns 

 

5.1. The Customer has the right to return Goods to the Supplier only if they are not in accordance with the Specification, unfit for purpose or of unsatisfactory quality. 

 

5.2. If the Customer considers that the circumstances in clause 5.1 apply the Customer must notify the Supplier within seven days from the date of POD. 

 

5.3. The Customer then has fourteen days from the date of notification to return the Goods at its cost to the Supplier’s trading address. 

 

5.4. Returned goods will then be subject to a visual and technical inspection upon receipt by the Supplier. 

 

5.5. Returned Goods must be undamaged and returned in their original packaging (where applicable) and must not have been fitted or otherwise used in any manner. 

 

5.6. The Supplier and the Customer will then discuss whether the Goods can be rectified or require to be replaced but the final decision on such matters shall be that of the Supplier. 

 

 

6. Price and Payment 

 

6.1. Unless otherwise specified in the Contract, all prices are quoted EXW (as per Incoterms 2020) and do not include freight, insurance or taxes. The Supplier is not responsible for export demurrage charges and/or customs charges or any additional costs.  If the Customer requests a variation to the Order before delivery of the Goods or performance of the Services, the Supplier may, at its discretion accept or reject a request to vary an Order.  Where an Order is varied, the price of the Order will increase or decrease (as the case requires) by an amount agreed between the parties, or failing such agreement, by an amount determined by the Supplier, acting reasonably.  

 

6.2. Unless otherwise specified in the Contract, the Supplier will invoice the Customer upon delivery of the Goods and/or Services. The Customer will pay the whole Amount Payable on or before the Due Date without any set off, withholding or deduction. The Customer agrees that if any Amount Payable is not paid by the Due Date the Supplier shall be entitled to charge and recover interest at the rate of 1.5% per month or part thereof on the Amount Payable overdue for the period between the Due Date until payment is made in full. Payment received from the Customer is valid once honoured or funds are cleared. 

 

6.3 Notwithstanding the remedies provided in clauses 3.3 and 3.4 above, the Customer agrees to indemnify and keep indemnified the Supplier against any costs incurred by the Supplier in connection with the Customer’s failure to pay on the Due Date, including but not limited to legal fees on an attorney and own client scale, including collection charges, on an indemnity basis and debt collection agency fees.  

 

 

7. Retention of Title 

 

7.1. The title in any Goods sold and delivered by the Supplier to the Customer shall not pass to the Customer until the total Amount Payable for the Goods (plus all accrued interest (if any) payable under clause 6) has been paid in full (in cleared funds).  

 

7.2. Until title in any Goods sold and delivered by the Supplier has passed to the Customer in accordance with clause 7.1 above, the Customer shall:

 

7.2.1. keep those Goods separated from any other Goods of the Customer so that they remain readily identifiable as the Supplier property; 

7.2.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

7.2.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the Delivery Date;

7.2.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.1; 

7.2.5. notify any landlord of any premises leased by the Customer where the Goods are stored that the Goods are the Supplier’s property; and

7.2.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time 

 

7.3. In addition to all other rights which the Supplier has under the Contract or applicable laws, the Supplier will be entitled to enter the premises of the Customer (including leased premises) at any time (to the extent permissible by law) to recover possession of those Goods for which the Amount Payable has not been made by the Due Date. It is agreed between the Supplier and the Customer that where the Supplier enters the premises of the Customer to take possession of the Goods and it is not possible to otherwise identify the ownership of the Goods in the possession of the Customer, the Goods will be treated as though they were sold by the Customer in the same sequences the Customer has taken delivery of the Goods. If the quantity of the Goods exceeds the amount owing, the Supplier will be entitled to determine which of the Goods it claims ownership in. 

 

7.4. The Customer must keep the Goods insured against all risks for goods of that kind from the time the risk in the Goods passes to the Customer until the time the title in the Goods passes to the Customer. If requested by the Supplier the Customer will provide to the Supplier a copy of the insurance policies.  

 

 

8. Consumer Sales

 

8.1. If the Customer is a consumer then in certain circumstances the Customer may have the legal right to change its mind within fourteen days of placing their order. However this does not apply to Goods which are made to the Customer’s specification.  The Supplier makes goods only to the Customer’s specific order and generally to the Customer’s specification and therefore the Customer’s consumer rights to change of mind do not apply.

 

 

9. Intellectual Property 

 

9.1. All intellectual property rights in  or arising out of in connection with the Goods and/or the Services (other than intellectual property rights in any materials provided by the Customer) shall be owned by the Supplier.

 

9.2. The Supplier grants to the Customer a non-exclusive royalty free right to use the Goods for the purpose of its business but the Customer shall not sub-licence, assign or otherwise transfer the rights granted by this clause 9. 

 

 

10.  Data Protection 

 

10.1. The Supplier and the Customer shall each be obliged to comply with their legal obligations and all relevant legislation and best practice codes in relation to data protection, data security and data privacy matters.  The Customer agrees to indemnify and keep indemnified and defend at its own expense the Supplier against all costs, claims, damages or expenses incurred by the Supplier or for which the Supplier may become liable due to any failure by the Customer or its employees or agents to comply with any of its legal obligations in relation to data protection, data security and data privacy matters.

 

10.2. The Supplier may collect and store, and the Customer agrees, and agrees to collect sufficient consent from any third party to allow the Supplier reasonable access to collect, any data generated by the Goods and Services.

 

 

11.  Liability 

 

11.1. To the extent permitted by law, neither party is liable to the other party for any punitive or pure economic cost, indirect, incidental, special or consequential loss or damage; economic loss; loss of opportunity; loss of production; loss of use; loss of sales; loss of goodwill; loss of profit or anticipated profit; or revenue, in each case whether foreseeable or not, suffered or incurred by the other party howsoever arising, including out of a breach by the other party of this Contract, a tortious or edictal (including negligent) act or omission, in equity, a breach of a statutory duty or obligation, or otherwise (whether or not such loss or damage was foreseeable by either party). The Customer indemnifies the Supplier against any claim which may be made against the Supplier by any other person in respect of any matter for which the liability of the Supplier is excluded above.  

 

11.2. To the extent permitted by law the limit of the Supplier in respect of any claim shall not exceed the invoice cost of the goods or services supplied.

 

11.3. The restrictions on liability in this clause apply to every liability arising under or in connection with the supply of goods and services by the Supplier to the Customer including liability in contract, torte (including negligence), misrepresentation, restitution or otherwise. 

 

11.4.  Nothing in these conditions limits any liability which cannot legally be limited including liability for death or personal injury caused by negligence or liability for fraud or fraudulent misrepresentation.

 

 

12. Termination 

 

12.1. If the Customer is in breach of any of these Terms  including without limitation, a provision relating to the payment of money or if the Customer suspends or threatens to suspend payment of its debts or is or becomes unable to pay its debts when they are due, has any external manager or controller appointed (including any receiver, administrator, liquidator of any kind)  or informs any person that it is, presumed to be, insolvent or if the Customer ceases or threatens to cease to carry on business or any guarantee or security given to the Supplier in relation to the Customer is revoked or unenforceable then the Supplier may, at its sole discretion, upon written notice to the Customer:-

 

12.1.1. Immediately enforce its rights under clause 3.2 and 3.3. 

12.1.2. Immediately take all possible action to protect its Goods and intellectual property rights; and/or  

 

12.2. In the event of termination of contracts by the Supplier the Supplier shall be entitled to recover all costs and losses associated with such termination action. 

 

12.3. Termination (including pursuant to clause 3.2 and 3.3.) shall be without prejudice to the accrued rights and liabilities of either party at the termination date. 

 

 

13. Customer’s Obligations

 

13.1 The Customer acknowledges that all Goods are manufactured by the Supplier to the Specification supplied by the Customer with the Order. 

 

13.2. Accordingly the Customer shall:

 

13.2.1 ensure that the terms of the Order and the Specification are complete and accurate in all respects;

13.2.2 co-operate with the Supplier in all matters relating to the Goods and/or Services;

13.2.3 provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services and/or Goods, and ensure that such information is accurate in all material respects;

13.2.4 obtain and maintain all necessary licences, permissions and consents which may be required for the Services and/or Goods before the date on which the Services are to start or the Goods to be delivered

13.2.5 comply with all applicable laws, including health and safety laws in the United Kingdom and elsewhere.

 

13.3 If the Supplier’s performance of any of its obligations in respect of the Services or the Goods is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):

 

13.3.1 The Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services and/or further delivery of the Goods until the Customer remedies the Customer Default, and the Supplier shall be relieved from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
13.3.2 The Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations caused directly or indirectly by a Customer Default; and

13.3.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

 

13.4 The Customer confirms that the Goods:

 

13.4.1 will not be used for any purpose connected with chemical, biological or nuclear weapons or missiles capable of delivering such weapons;

13.4.2 will not be re-exported or otherwise resold or transferred if it is known or suspected that they are intended or likely to be used for such purposes;

13.4.3 will not be re-exported or otherwise resold or transferred to a destination subject to any embargo imposed by any state, alliance of states or international organisation where that act would be in breach of the terms of that embargo:

13.4.4 or any replica of them will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.

 

13.5 The Supplier is not responsible for Goods that are subsequently exported or re-exported by the Customer or sold to another person and/or representative, domestic or foreign. 

 

13.6 In relation to the use of the Goods, the Customer shall:

 

13.6.1 use the Goods in a responsible manner;

13.6.2 ensure that the Goods are serviced on a regular basis;

13.6.3 pay due regard to any information or any revised information whenever supplied by the Supplier (and is deemed to have been given adequate information and to have read and understood it) relating to the use for which the Goods are designed or have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person at work or when they are being dismantled or disposed of, and the Customer undertakes to take such steps as may be specified by the above information to ensure that, as far as reasonably practicable, the Goods will be safe and without risk to health at all times.

 

13.7 The Customer agrees to indemnify in full and on demand the Supplier against all losses, damages, injury, costs and expenses whatsoever and howsoever incurred suffered by the Supplier to the extent that the same are caused or related to:

 

13.7.1 designs, drawings or specifications given to the Supplier by the Customer in respect of the Goods and/or Services;

13.7.2 defective materials or products supplied by the Customer to the Supplier and incorporated by the Supplier in the Goods; or

13.7.3 the improper incorporation, assembly, use, processing, storage or handling of Goods by the Customer. 

 

 

14. General Provisions 

 

14.1. If a provision of these Terms is wholly or partly invalid or unenforceable in any jurisdiction, that provision or the part of it that is invalid or unenforceable must to that extent and in that jurisdiction, be treated as deleted from these Terms. This does not affect the validity or enforceability of the remaining provisions. 

 

14.2. Nothing in these Terms is intended to exclude, restrict or modify rights which the Customer may have under any legislation to the extent it may not be excluded, restricted or modified by agreement. 

 

14.3. Except as otherwise expressed in these Terms, no right, power, privilege or remedy conferred is intended to be exclusive of any other right, power, privilege or remedy. 

 

14.4. Neither party shall cause, permit or tolerate an Unsafe condition or activity over which that party has control over. If a party observes or becomes aware of an Unsafe condition, that party may request the other party to remove or, to the extent reasonably possible, mitigate the effect of the Unsafe condition, and the other party must comply with that request. The Supplier reserves the right to suspend work under the Contract if Unsafe conditions exist, to which the Supplier’s personnel (including but not limited to its directors, employees, contractors or subcontractors) may be exposed, until such time as the Unsafe conditions have been rectified. Unless the Customer can demonstrate that the Unsafe condition(s) have been rectified (and the Supplier did not cause the Unsafe condition or perform the Unsafe act), the Supplier is entitled to a reasonable extension of time for any delays caused by the Unsafe condition(s). 

 

14.5. Customer shall comply at all times with all applicable laws, statutes and regulations, in particular those related to anti‐bribery and anticorruption including but not limited to the UK Bribery Act 2010  as amended from time to time. Failure to comply with this paragraph shall constitute a material breach which will entitle the Supplier to terminate the Contract immediately. 

 

14.6. The Supplier may subcontract, assign, novate or otherwise deal with the Contract pursuant to these Terms without the consent of the Customer, to the extent permissible by law.  

 

14.7. A party waives a right under these Terms only if it does so in writing. A party does not waive a right simply because it fails to exercise the right, delays exercising the right or only exercises part of the right. A waiver of one breach of these Terms does not operate a waiver of another breach of the same term or any other term. 

 

14.8. Except for Orders which may be sent by e-mail or facsimile transmission, any notice or demand must be in writing and delivered by registered mail or by hand to the address set out in the Order. If by registered mail, such notice or demand shall be deemed delivered 2 Days after the date of posting. 

 

14.9. The Customer agrees to keep confidential all information of a confidential nature which is disclosed to or obtained by the Customer and relates to the Goods and/or Services supplied. The information remains the property of the Supplier at all times. 

 

14.10. To the extent permitted by law, the Supplier is under no liability in respect of Goods exported without necessary licenses, authorisations or consents. 

 

14.11. No person who is not party to a Contract shall have any right to enforce any term of a Contract. 

 

14.12. The Contract and any claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) shall be governed by the laws of England without taking into the consideration the International Sales of Goods Act. 

 

14.13. Each party irrevocably agrees that the courts of England  shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract of its subject matter or formation (including non- contractual disputes or claims). 

 

14.14. The submission to the jurisdiction of English Courts shall not limit the right of the Supplier to take proceedings against the Customer in any court which may otherwise exercise jurisdiction over the Customer or any of its assets.