TERMS AND CONDITIONS OF SALE
“Buyer” means the buyer of Goods or Services from the Company (which may be either a Retail Customer, a Trade Customer or an Indirect Trade Customer);
“Company” means Koi Water Barn Limited;
“Contract” means a legally binding contract between the Company and the Buyer for the sale and purchase of Goods and/or Services ordered pursuant to these Conditions;
“Dry Goods” means all goods sold by the Company other than Livestock;
“Goods” means Livestock and/or Dry Goods;
“Conditions” means the terms and conditions of sale set out in this document;
“Indirect Trade Customer” means any Buyer (other than a Retail Customer) who purchases Livestock from the Company which are not kept on the Company’s premises;
“Livestock” means fish or plants;
“Retail Customer” means a person dealing as a consumer as defined in s.12 of the Unfair Contract Terms Act 1977;
“Trade Customer” means any Buyer which is not a Retail Customer or an Indirect Trade Customer;
“Trade Quarantine Protocol” means the Trade Quarantine Protocol attached at Appendix A to these Conditions;
“Services” means any services carried out by the Company for the Buyer.
2 Basis of Sale
2.1 Except as otherwise expressly agreed in writing by the Company, these conditions (as may be varied from time to time by the Company) shall apply to all contracts between the Company and the Buyer for the sale and purchase of Goods and/or Services, to the exclusion of all others.
2.2 Before any purchase of Livestock is concluded, all Retail Customers will be asked to complete a standard questionnaire which will assess the suitability of the proposed environment for the Livestock (“Questionnaire”). All Retail Customers will be asked to sign the Questionnaire to confirm that the answers provided are true in all respects and to confirm their agreement to these Conditions. The Company reserves the right to refuse the sale of Livestock to any Retail Customer that fails to complete the Questionnaire to the satisfaction of the Company.
2.3 The Company recommends that all Buyers quarantine new Livestock for an appropriate period of time in order to ensure proper integration of the Livestock into their new environment and to minimise the risk of cross-contamination. Indirect Trade Customers must follow the Trade Quarantine Protocol and the Extended Warranty (contained in Clause 11.4 below is conditional upon their having strictly adhered to the procedures outlined therein.
3.1 No order submitted by the Buyer shall be accepted or deemed accepted by the Company unless and until confirmed by acknowledgement by the Company or by delivery of the Goods or performance of the Service. Any quotation, and any price list published by the Company may be varied, withdrawn or cancelled by the Company at any time prior to acceptance.
4.1 Prices for the Goods or Services and, where appropriate for packing and delivery, shall be the Company's current list prices at the time at which the price is paid or the invoice is issued, or such other prices agreed in writing by the Company. The prices shall be exclusive of VAT which the Buyer shall be additionally liable to pay at the rate ruling at time of delivery.
5.1 Delivery of the Goods shall be made by the Buyer collecting the Goods from the Company’s premises (or other location) or, where the Company has agreed to arrange transport of the Goods to the Buyer, by the Company delivering the Goods to the Buyer or an appropriate carrier.
5.2 The Company shall make all reasonable efforts to adhere to dates for delivery, but shall not be responsible for delays or non-performance which are beyond the Company's control. The Company shall not be liable for loss or damage which may result from late delivery or performance.
5.3 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of collection or delivery or, if the Buyer fails to take delivery of the Goods, at the time delivery is tendered.
6 Payment Terms
6.1 Unless otherwise agreed in writing by the Company, payment for Livestock and Dry Goods must be by cash, guaranteed cheque or credit or debit card on collection or, where the Company arranges delivery, by credit or debit card at the time of order. Where credit terms have been agreed, payment for Goods and Services shall be made no later than 30 days from invoice date.
6.2 The Company shall be entitled to charge interest upon any amounts remaining unpaid after the due date, at the rate of 5% per annum above Bank of England base rate, from the time the payment became due to the time payment is received in full.
6.3 If the Buyer fails to make payment in full by the due date, the Company shall be entitled to cancel the contract or suspend further deliveries to the Buyer and the Company shall not be liable for any loss, damage, claims, liabilities, costs or expenses incurred by the Buyer as a result of any such cancellation or suspension.
7 Force Majeure
7.1 The Company shall not be liable to the Buyer or deemed to be in breach of contract by reason of any delay in performing or failure to perform any of the Company’s obligations if the delay or failure is due to any cause beyond the Company's reasonable control.
8 Title and property
8.1 Notwithstanding delivery and passing of risk in the Goods, or any other provision in these Conditions, Goods shall remain the absolute property of the Company until the Company has received in cash or cleared funds payment in full of the price of the Goods and Services, plus any VAT and all other sums whatsoever which are due from the Buyer to the Company including any interest thereon. Notwithstanding such retention of title the Company shall be entitled to maintain an action for the price of the Goods as soon as payment falls due.
8.2 Until such time as full legal title passes to the Buyer, the Buyer acknowledges that it is in possession of the Goods solely as the Company’s fiduciary agent and bailee and shall:
(a) Keep the Goods on its premises separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Company’s property and shall not alter, add to or modify the Goods or any marking or identification on them and shall maintain them in good condition, and:
(b) Keep the Goods free from any charge, lien or other encumbrance.
8.3 If payment for the Goods and/or Services under any contract between the Company and the Buyer is overdue in whole or in part, the Company (without prejudice to any of its other rights) may retake possession of and/or resell any Goods the title to which it has by these Conditions retained and apply the proceeds of the sale to satisfy the Buyer's debt to the Company and the Buyer shall, upon request of the Company, allow the Company/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.
9 Insolvency of Buyer
9.1 Notwithstanding any other agreement as to the terms of payment, the total price shall become due and payable and the Company shall have the right to forthwith terminate the contract with the Buyer (without prejudice to any of its other rights) if the Buyer becomes or threatens to become bankrupt or a petition of bankruptcy is presented against the Buyer, or the Buyer ceases or threatens to cease to carry on business or enters into any negotiations for arrangement or composition with its creditors or becomes insolvent, if a petition is presented for an administration order or if a petition is presented or a resolution is proposed to wind-up the Buyer, or if a receiver of its assets or undertakings or part thereof is appointed or if any distress or execution is levied on the Buyer.
9.2 Upon termination of the contract pursuant to Condition 9.1 the Company shall have such right of repossession and resale as are set out in Condition 8.3.
10.1 The Company takes all reasonable measures and precautions to ensure that the Livestock it supplies is free from disease. However, all Livestock carries with it the risk of latent defects existing which do not become apparent until after sale. As a result (except to the extent such warranties are implied into these Conditions by law) the Company is unable to give any warranties as to the satisfactory quality of any Livestock. However, the Company does provide a right of replacement or refund subject to the conditions set out in Condition 11 below.
10.2 The Company limits its liability under these Conditions, whether such liability arises in contract, tort (including without limitation negligence), statute or otherwise as follows:
(a) the Company's liability for damage to or loss of physical property shall be limited to the price of the Goods supplied by the Company to which the damage or loss relates;
(b) the Company shall not be liable for loss of business, use, profit, anticipated profit, contracts, revenues, goodwill or anticipated savings, consequential, special or indirect loss or damage, even if the Company has been advised of the possibility of such loss or damage.
10.3 Except as otherwise provided in these Conditions, all warranties, conditions and other terms implied by statute (except for those conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Sale and Supply of Goods and Services Act 1982 and the statutory rights of Retail Customers, which are not excluded) and common law are to the fullest extent permitted by law, excluded from the Contract.
10.4 Nothing in these Conditions excludes or limits liability for death or personal injury caused by any party's negligence, fraudulent misrepresentation, the statutory rights of Retail Customers or any other type of liability which cannot by law be excluded or limited.
11.1 If within a period of 10 days from the date of delivery of Goods and/or performance of Services, any of the delivered Goods and/or performed Services are proved to the reasonable satisfaction of the Company to be defective, the Company will at its option, replace the Goods and/or Services, free of charge or refund the price of the Goods and/or Services.
11.2 The Buyer shall notify the Company of any defects discovered in Livestock purchased as soon as is reasonably practicable and in any event within 2 days of the defect becoming reasonably apparent. This will allow the Company to provide appropriate advice to the Buyer regarding the care of the Livestock.
11.3 The Company’s obligation in Condition 11.1 above, will not apply where:-
(a) The Buyer has failed to notify the Company of the defect in accordance with Condition 11.2 above; or
(b) The price has not been paid for the Goods and/or Services by the date of the complaint; or
(c) A Retail Customer has failed to prove to the satisfaction of the Company that the information provided by the Retail Customer in the Questionnaire is correct; or
(d) Where the Buyer has treated the Livestock in any manner which is inconsistent with any care instructions provided by the Company.
11.4 If an Indirect Trade Customer discovers during the period prescribed in the Trade Quarantine Protocol for quarantining a fish that it has KHV and notifies the Company of this within that period, the Company will (at its option) refund or replace the fish as long as the Indirect Trade Customer has proven to the satisfaction of the Company that the fish has KHV.
11.5 The Company’s obligation in Condition 11.4 above, will not apply where:-
(a) The Indirect Trade Customer has failed to notify the Company of the defect in accordance with Condition 11.2 above; or
(b) The price has not been paid for the Goods and/or Services by the date of the complaint; or
(c) Where the Indirect Trade Customer has failed to prove to the satisfaction of the Company that it has adhered to the Trade Quarantine Protocol or where the Indirect Trade Customer has treated the Livestock in any manner which is inconsistent with any care instructions provided by the Company.
The Buyer hereby undertakes not at any time to divulge any of the terms of the Contract or use any information in relation to the Company’s business or any other information received from the Company in relation to the Contract of a confidential or proprietary nature other than for the purposes expressly envisaged by these Conditions.
13 Entire Agreement
13.1 These Conditions and the documents referred to therein, represent the entire agreement between the parties relating to the sale and purchase of Goods and/or Services and supersede all previous agreements, arrangements and understandings between the parties relating to the sale and purchase of the Goods and/or Services.
13.2 The Buyer acknowledges that in entering into the Contract, it places no reliance on any representation, warranty or other statement relating to the subject matter of the Contract, other than as expressly set out in these Conditions.
13.3 Neither party shall have any liability or remedy in respect of any representation or warranty or other statement being false, inaccurate and/or incomplete unless it was made fraudulently or is contained in these Conditions.
14 Contracts (Rights of Third Parties) Act 1999
14.1 Any person or entity which is not expressly a party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 (“Act”) to enforce any term of the Contract and the provisions of the Act shall be expressly excluded from the Contract.
15 Law and Jurisdiction
15.1 The Contract shall be governed by the laws of England and shall be subject to the exclusive jurisdiction of the English Courts.
TRADE QUARANTINE PROTOCOL