Diverse Marine Terms & Conditions

1. Definitons:

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Contract: together, the Invoice and the Conditons for the supply of the Goods from the Supplier to the Customer.

Conditons: the terms and conditons set out in this document.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control. 

Goods: the goods (or any part of them) set out in the Invoice.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competion, rights in designs, database rights, rights to use, and protect the confidentality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Invoice: the details of the Customer's order for the Goods, as set out overleaf.
Supplier: Diverse Marine Ltd, a limited company registered in England with company number GB 11377970 or any Diverse Marine group company if specified on the Invoice.

2. Basis of contract. These Conditions apply to the Invoice 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. The parties hereby agree to be bound by these Conditions upon the earlier of the (i) Supplier confirming the Goods in the order, (ii) Supplier sending the Goods; (ii) payment of a deposit by the Customer; or (iii) the issuance of a purchase order by the Customer.

3. Delivery

3.1 The Supplier shall deliver the Goods to the location set out in the Invoice or such other location as the parties may agree in writing (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.

3.2 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

3.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods.

3.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the value of the Invoice. The Supplier shall not be liable for any failure to deliver the Goods that is caused by a Force Majeure Event or 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.

3.5 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer in writing that the Goods are ready for delivery, then, except where such failure is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:

(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and

(b) the Supplier shall store the Goods until actual delivery takes place, and shall, without limiting its rights, be entitled to charge the Customer for all related costs and expenses (including insurance).

3.6 If ten Business Days after the date on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods. The Customer shall not be entitled to any refund (if the Goods are already paid for).

4. Quality

4.1 The Supplier warrants that on delivery, the Goods shall:

(a) conform with their description; and

(b) if manufactured and sold by the Supplier, be free from material defects in design, material and workmanship.

4.2 Subject to Clause 4.3, if:

(a) the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Clause 4.1;

(b) the Supplier 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 Supplier's cost,
the Supplier shall, at its option and to the extent that it agrees that such Goods do not comply with the warranty set out in Clause 4.1, repair or replace the defective Goods, or refund the price of the defective Goods in full.

4.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in Clause 4.1 if:

(a) the Customer makes any further use of such Goods after giving notice in accordance with Clause 4.2;

(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by or on behalf of the Customer;

(d) the Customer alters or repairs such Goods without the written consent of the Supplier;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

4.4 Except as provided in this Clause 4, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in Clause 4.1.

4.5 All warrantees, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

5. Title and risk

5.1 The risk in the Goods shall pass to the Customer on completion of delivery.

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.

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

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

(b) notify the Supplier immediately if it becomes subject to any of the events listed in Clause 8.1(b) to Clause 8.1(d); and

(c) give the Supplier such information as the Supplier may reasonably require from time to time relating to the Goods and the Customer's ongoing financial position.

5.4 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 control, and, if the Customer fails to do so promptly, recover them, including by removing the Goods from any other property to which it has been affixed or entering any premises of the Customer or of any third party where the Goods are held or stored.

6. Price and payment

6.1 The price of the Goods shall be the price set out in the Invoice.
6.2 Subject to the terms of the Invoice, the Customer shall pay the Invoice:
(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.
6.3 If the Customer fails to make a payment due to the Supplier pursuant to the Invoice by the due date, 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 clause 6.3 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

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

7 Intellectual Property

7.1 All Intellectual Property Rights in or arising out of or in connection with the Goods are owned by the Supplier.

7.2 The supply by the Supplier of the Goods to the Customer does not constitute a transfer of any Intellectual Property Rights to the Customer.

8. Termination

8.1 Without limiting its other rights or remedies, the Supplier may terminate the 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 10 days of it 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;

(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.

8.2 Without limiting its other rights or remedies, the Supplier may suspend supply 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 Clause 8.1(b) to Clause 8.1(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.

8.3 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.

8.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's 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 the Customer shall pay immediately on receipt.

8.5 Termination of the Contract, however arising, 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 the Contract which existed at or before the date of termination.

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

9. Force Majeure. Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 10 days, the party not affected may terminate the Contract by giving not less than 3 days' written notice to the affected party.

10. General
10.1 Entire Agreement
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation based on any statement in the Contract.

(c) In the event of a conflict between the Conditions and the Invoice, the Invoice shall prevail over the Conditions.

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

10.3 Waiver
(a) A waiver of any right or remedy is only effective if given in writing.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
10.4 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.
10.5 Governing law. The Invoice and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales.
10.6 Jurisdiction. Each party agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Invoice.