Customer Terms and Conditions
The following terms and conditions govern purchases of fish, shellfish and other seafood products (“Products”) from or through Marder Trawling, Inc. (“Marder Trawling”). By submitting an order or offer to purchase any Product from or through Marder Trawling, you are agreeing to be bound by these terms and conditions (the “Agreement”). You understand and acknowl- edge that we may modify or change these terms and conditions from time to time by posting such modifications or changes in this location.
The risk in the Products purchased will, unless otherwise agreed by Marder Trawling in writing, pass to you upon delivery to a carrier commissioned by Marder Trawling to deliver the Products.
Claims for credit must be made within twenty four (24) hours of receipt of the Products by you by sending written notice by fax to: 508-992-2320, with a confirmation copy mailed by certified mail to Marder Trawling, Inc., 22 South Water Street, New Bedford, MA 02740. A copy of the delivery slip from such Products must be presented, failing which any such claims are deemed to be waived.
If you fail to make any payment provided herein within 3 business days of its due date, you shall become liable to Marder Trawling for a late payment fee equal to 5% of the amount due, as well as interest on such amount calculated at the rate of 1.5% per month from the original due date to the date of its payment in full.
MARDER TRAWLING EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE AND ANY OTHER WARRANTIES, CONDITIONS, GUARANTIES OR REPRESEN- TATIONS, WHETHER EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING. IN NO CIRCUMSTANCES SHALL MARDER TRAWLING, AND ITS STOCKHOLDERS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR REPRESENTATIVES (COLLECTIVELY, THE “DISCLAIMING PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL OR OTHER INTANGIBLE LOSSES INCURRED BY YOU (EVEN IF MARDER TRAWLING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) OR ANY OF YOUR CLIENTS, CUSTOMERS OR ACCOUNTS, OR BY ANY THIRD PARTY, RESULTING FROM: (A) THE SALE, RE-SALE OR OTHER DISTRIBUTION OFTHE PRODUCTS; (B) THE USE OR CONSUMPTION OF THE PRODUCTS; (C) ANY OTHER MATTER RELATING TO THE PRODUCTS.
You understand and agree that the remedies, disclaimers and limitations in this Agreement allocate the risks of product and service nonconformity between the parties as authorized by the Uniform Commercial Code and other applicable laws. The prices charged for the Products reflect and are set in reliance upon this allocation of risk and the limitation of liability, indem- nities and exclusion of damages set forth herein.
Neither party shall be liable in damages or have the right to terminate the Agreement for any delay or default in performing this Agreement if such delay or default is caused by conditions beyond its control, including, but not limited to, acts of God, government restrictions, wars, acts of terrorism, insurrections, strikes, fire, floods or work stoppages.
No failure or delay on the part of either party in exercising any right or remedy available hereunder for any one or more non-performance or other defaults shall be construed to prejudice its rights or remedies available hereunder for such or for any other or subsequent non-performance or other default. If any part of this Agreement shall be held unenforceable, the remain- der of this Agreement will nevertheless remain in full force and effect, so long as it still expresses the intent of the parties as expressed hereby.
Any dispute arising out of, relating to, or having any connection with this Agreement, including any question regarding its existence, validity, interpretation, performance, breach or termi- nation, and any tort or other common law or statutory claims arising out of or relating to its negotiation, execution or performance shall be exclusively and finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”) by one or more arbitrators appointed in accordance with the ICC Rules. The place of arbitration shall be Boston, Massachusetts, USA, unless the parties agree otherwise. The arbitration shall be conducted in the English language. The arbitration panel shall determine the rights and obligations of the parties in accordance with the substantive laws of The Commonwealth of Massachusetts other than those laws that would refer the matter to the law of another jurisdiction. The arbitration panel shall be composed of three arbitrators to be selected in accordance with the ICC Rules. The costs of the arbitration proceeding, including attor- neys’ fees and expenses, shall be borne in the manner determined by the arbitration panel. The award shall be final and binding on the parties. Judgment on the award may be entered by any court having jurisdiction over the person or the property of the person against whom enforcement of the judgment is sought.