NEIL HARDY AQUATICA LTD
TERMS AND CONDITIONS OF SALE
1.1 In these conditions:
"Company" means Neil Hardy Aquatica Ltd "Purchaser" means the purchaser of Goods and/or Services from the company"Conditions" means the terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Company and the Purchaser"Livestock" means fish, crustaceans, amphibians, molluscs, reptiles and plants"Dry Goods" means all goods sold by Company other than Livestock"Services" means intangible products provided by the Seller"Goods" means Livestock and/or Dry Goods and/or Services
2.0Basis of Sale
2.1Except as otherwise expressly agreed in writing by Seller, these Conditions, as varied from time to time by Seller, shall apply to all contracts between Seller and Buyer for the sale of Goods and/or supply of services to the exclusion of any terms which Buyer may seek to impose. These Conditions shall have effect in place of any other condition which may have been notified previously by Seller to Buyer.
3.1 No order submitted by Buyer shall be deemed to be accepted by Seller unless and until confirmed by acknowledgement by seller or by delivery of the Goods or performance of the services. Any quotation by Seller and any price list published by Seller may be varied, withdrawn or cancelled by Seller at any time prior to acceptance
4.1 Seller's prices for the Goods and/or services and (where appropriate) for packing and/or transporting the Goods shall be Seller's list prices or such other prices agreed in writing by Seller. The prices shall be exclusive of VAT which Buyer shall be additionally liable to pay at the rate prevailing at the time of delivery of Goods or performance of the services.
5.1 Delivery of the Goods shall be made by Buyer collecting the Goods from the Seller's premises or, where Seller has agreed to arrange transport of the Goods to Buyer, by delivering the Goods to the appointed carrier or to the Buyer's premises.
5.2 Dates quoted for delivery or performance are approximate only and may be altered by Seller according to demand for its Goods and services. Seller shall make reasonable efforts to adhere to dates for delivery and performance, but such dates are not to be treated as being of the essence of the contract. Seller shall not be liable for loss or damage which may result from late delivery or performance. Seller shall be entitled to make additional charges in respect of costs incurred by Seller arising from variations in Seller's standard delivery arrangements requested by Buyer, or if Buyer does not permit delivery to take place when tendered.
6.0 Complaints and Liability
6.1 Any complaint concerning the quality or condition of the livestock must be notified to Seller in writing, otherwise than upon consignment note or delivery documentation, within 24 hours of receipt of the Livestock by Buyer. Buyer acknowledges that because of the nature of Livestock, Seller cannot guarantee that the Livestock will survive transit. Accordingly, Seller shall not be liable for any Livestock which does not survive transit to the Buyers address. Any complaint of failure to deliver Livestock invoiced by Seller must be notified to Seller within three days of Seller's invoice date.
6.2 Any complaint concerning the quality or condition of the Dry Goods must be notified to Seller in writing, otherwise than upon consignment note or delivery documentation, within 24 hours of receipt of the Dry Goods by Buyer. The Dry Goods must be held by Buyer in a condition which causes no further loss to them, for collection by Seller. Any complaint of failure to deliver Dry Goods invoiced by Seller must be notified to Seller within seven days of Seller's invoice date.
6.3 Any complaint concerning the quality of the services must be notified to Seller within 24 hours of their performance by Seller.
6.4 Where a compliant is notified to Seller in accordance with Condition 6.1, 6.2 or 6.3 and is accepted, Seller shall be entitled at its sole discretion to replace the relevant Goods or (where appropriate) make good the shortfall and/or re-perform the relevant services or at Seller's option (if already paid) to refund to buyer the price of the defective Goods and/or services or the shortfall. Seller shall have no further liability to Buyer. Buyer shall not be entitled to set off against any sum due to Seller the value of any claim Buyer may purport to have against Seller.
6.5 Except in respect of death or personal injury caused by Seller's negligence, Seller shall not be liable to Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any loss or damage (whether direct, indirect or consequential or whether for loss or profit or otherwise), costs, expenses or other claims for compensation whatsoever (and whether caused by the negligence of Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the goods of their use or resale by Buyer or the performance of the services except as expressly provided in these conditions.
6.6 Subject as expressly provided in these Conditions, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law. Without prejudice to the generality of the foregoing any sample supplied by Seller shall not render any subsequent sale a sale by sample.
7.0 Force Majeure
7.1 Seller shall not be liable to Buyer or deemed to be in breach of the contract by reason of any delay in performing or failure to perform any of Seller's obligations in relation to the Goods and services if the delay or failure is due to any cause beyond Seller's reasonable control. Without limiting the generality of the foregoing, causes beyond Seller's reasonable control shall include, flood, storm, fire, strikes, lock-outs or other industrial action or trade disputes, difficulties in obtaining raw materials, fittings or other items of equipment, power failure or break down in machinery.
8.0 Payment Terms
8.1 Unless otherwise agreed in writing by Seller, payment for Livestock, Dry Goods or Services must be by cash, cheque or credit card on collection or, where Seller arranges delivery, by return post or bank transfer to Seller's account following the arrival of the Goods at Buyer's premises; no later than 30 days following Seller's invoice date.
8.2 If Buyer fails to make payment on the due date, without prejudice to any other right or remedy available to Seller, and without prejudice to Condition 10.0 Seller shall be entitled to:-
8.2.1 cancel the contract or suspend further deliveries to Buyer; and/or
8.2.2 charge interest at the rate of 4% per annum above the base rate from time to time of Seller's bankers from the due date until the actual date of payment; and/or
8.2.3 payment from Buyer on demand on a full indemnity basis, of all costs, charges and expenses in any way incurred by Seller in relation to the overdue payment and its recovery.
9.0 Risk in Goods
9.1 Risk of damage to or loss of the Goods shall pass to Buyer at the time of delivery to or, if Buyer wrongfully fails to take delivery of the Goods, at the time that delivery is tendered.
10.0 Title in Goods
10.1 Notwithstanding delivery and passing of risk in the Goods, or any other provision of these Conditions, Goods shall remain the absolute property of Seller until Seller has received in cash or cleared funds payment in full of the price of the Goods plus any VAT and all other sums whatsoever which are due from Buyer to Seller including any interest thereon. Notwithstanding such retention of title Seller shall be entitled to maintain an action for the price of the Goods as soon as payment falls due.
10.2 Until such time as property in the Goods passes to Buyer, Buyer acknowledges that it is in possession of the Goods solely as Seller's fiduciary agent and bailee and shall:
10.2.1 keep the Goods on its premises separate from those of Buyer and third parties and property stored, protected and insured and identified as Seller's property and shall not alter, modify or add to the Goods or any marking or identification on them and shall maintain them in good condition; and
10.2.2 keep the Goods free from any charge, lien or other encumbrance.
10.3 If payment for the Goods and/or services under any other contract between Seller and Buyer is overdue in whole or in part. Seller (without prejudice to any of its other rights) may take possession of and/or resell any Goods the title to which it has by these Conditions retained and Buyer shall, upon request of Seller, allow Seller its servants and agents during normal working hours to enter any premises where the Goods are for the purpose of recovering possession of such Goods.
11.0 Insolvency of Buyer
11.1 Notwithstanding any other agreement as to the terms of payment, the total price shall become due and payable and Seller shall have the right to forthwith terminate the contract (without prejudice to any of its other rights) if Buyer commits any act of bankruptcy or a petition of bankruptcy is presented against Buyer or Buyer ceases to carry on business or enters into any negotiations for arrangement or composition with its creditors or in the event of Buyer being a limited company, if a petition is presented for an administration order or if a petition is presented or a resolution is proposed to wind-up Buyer or if a receiver of its assets or undertakings or part thereof is appointed or if any distress or execution is levied on Buyer.
11.2 Upon termination of the contract pursuant to condition 11.1 Seller shall have such rights of repossession and resale as are set out in Condition 10.3.
12.0 Property Law and Jurisdiction
12.1 The contract shall be governed by the laws of England and shall be subject to the exclusive jurisdiction of the English courts.