SAFAPOND DIRECT Ltd – CONDITIONS OF SALE
1. Definitions and interpretation
1.1 In these Conditions:-
“Conditions” means the conditions set out in this document and (unless the context otherwise requires) includes any special conditions agreed in writing between the Customer and Safapond Direct Ltd;
“Contract” means the contract for the supply of the Goods formed upon the acceptance of the Quotation or Order, as appropriate;
“Customer” means the person who accepts a written quotation from Safapond Direct Ltd for the supply of Goods (a “Quotation”) or whose written order for Goods is accepted by Safapond Direct Ltd (an “Order”);
“Goods” means those goods (including any instalment of the same) or other services which Safapond Direct Ltd is to supply in accordance with these Conditions;
“Safapond” means Safapond Direct Limited registered in England under no.7117810;
1.2 Reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. Headings in these Conditions are for convenience only and shall not affect their interpretation.
2. The supply
2.1 Safapond Direct Ltd supplies and the Customer purchases the Goods in accordance with any Quotation accepted by the Customer or Order accepted by Safapond Direct Ltd subject in either case to these Conditions which govern the Contract to the exclusion of any other terms including any which the Customer attempts to incorporate. A person who is not a party to the Contract has no right under the Contracts (Right of Third Parties) Act 1999 to enforce any term of it, but this shall not affect any right or remedy of a third party available other than under such Act.
2.2 No variation to these Conditions shall be binding unless approved in writing by a director of Safapond Direct Ltd.
2.3 Any advice or recommendation given by Safapond Direct Ltd, its employees or agents to the Customer as to the use of the Goods which is not confirmed in writing by Safapond Direct Ltd is acted upon at the Customer’s own risk, and accordingly Safapond Direct Ltd will not be liable for any such advice or recommendation not so confirmed.
2.4 Any error or omission in any sales literature, quotation, price list, invoice or other document or information issued by Safapond Direct Ltd is subject to correction without any liability accruing to Safapond.
2.5 No right or licence is granted to the Customer under any intellectual property right save the right to use or resell the Goods.
3. Orders and specifications
3.1 No Order is deemed accepted by Safapond Direct Ltd unless confirmed in writing by an authorised representative of Safapond Direct Ltd. Where any Goods are to be supplied from stock, such supply is subject to availability of such Goods as at delivery.
3.2 The Customer is responsible for ensuring the accuracy of the terms of any Order (including applicable specification) submitted by it, and for giving Safapond Direct Ltd any necessary information relating to the Goods within a sufficient time to enable Safapond Direct Ltd to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Goods is set out on the accepted Quotation or Order, as appropriate.
3.4 If any process is applied to the Goods by Safapond Direct Ltd in accordance with a specification submitted by the Customer, the Customer will indemnify Safapond Direct Ltd for all loss, damages, costs and expenses incurred by Safapond Direct Ltd in connection with any claim for infringement of any third party intellectual property rights resulting from Safapond Direct Ltd’s use of the Customer’s specification.
3.5 Safapond Direct Ltd may make changes to the specification of Goods required to conform with any applicable statutory or EU requirements or, where the Goods are to be supplied to Safapond Direct Ltd’s specification, which do not materially affect their quality or performance.
3.6 An Order may not be cancelled by the Customer without Safapond Direct Ltd’s written consent. The Customer will indemnify Safapond Direct Ltd against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Safapond Direct Ltd as a result of any cancellation of such Order.
4. Price
4.1 The price of the Goods shall, unless agreed otherwise, be Safapond’s list price at the date that the Order or Quotation, as appropriate, is accepted (“Price”). Subject to condition 4.2, any price quoted by Safapond Direct Ltd is valid for 60 days only or such other time specified in the Quotation, after which time the said price may be altered by Safapond Direct Ltd without notice.
4.2 Safapond Direct Ltd may by giving notice to the Customer at any time before delivery, increase the Price to reflect any increase in the cost to Safapond Direct Ltd due to any factor beyond its reasonable control and including, without limitation, foreign exchange fluctuations, currency regulation, alteration of duties, increases in the costs of labour materials or manufacture, a change in delivery dates quantities or specifications for Goods requested by the Customer, delay caused by instructions of the Customer or a failure of the Customer to give Safapond Direct Ltd adequate information or instructions.
4.3 Save as otherwise agreed in writing, the Price is the factory ex works price. Where Safapond Direct Ltd agrees to deliver Goods it does so as the Customer’s agent and the Customer is liable to pay Safapond Direct Ltd the costs of arranging transport, packaging and insurance.
4.4 Save as stated otherwise, the Price is exclusive of applicable VAT which the Customer is liable to pay to Safapond.
5. Payment
5.1 Unless otherwise agreed in writing, Safapond Direct Ltd may invoice the Customer for the price of Goods on or at any time before or after their delivery, unless the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, in which event Safapond Direct Ltd may invoice Customer for the price at any time after Safapond Direct Ltd has notified the Customer that the Goods are ready for collection or (as the case may be) Safapond Direct Ltd has tendered delivery of the Goods.
5.2 Unless otherwise agreed in writing, the Customer will pay the Price (together with any other costs levied under condition 4) at the time of order. Safapond Direct Ltd may recover such price notwithstanding that delivery may not have taken place and title in the Goods not passed to the Customer. Time of payment of the Price is of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Customer fails to make any payment due under the Contract on its due date then, without prejudice to any of its other rights or remedies, Safapond Direct Ltd may:-
(a) cancel the Contract or suspend any further deliveries to the Customer;
(b) appropriate any payment made by Customer to such of the Goods (or goods or services supplied under any other contract between the Customer and Safapond Direct Ltd) as Safapond Direct Ltd may think fit notwithstanding any purported appropriation by the Customer; and
(c) charge the Customer interest (before and after any judgement) on the amount unpaid, at the rate of 2% per annum above HSBC Bank plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6. Delivery
6.1 Delivery of the Goods is made by the Customer collecting them from Safapond Direct Ltd’s premises after Safapond Direct Ltd has notified the Customer that the same are ready for collection or, if some other place for delivery is agreed by Safapond, by Safapond Direct Ltd delivering the Goods to that place. Where the Goods comprise services, delivery of such services will take place upon completion of the performance of such services.
6.2 The estimated dates given by the Company for delivery of goods and/or the commencement and completion of services are genuine estimates given in good faith by Safapond Direct Ltd and although Safapond Direct Ltd will use its reasonable endeavours to comply with such estimates it shall not be liable to make good any damage or loss whether arising directly or indirectly out of any failure to meet the same. The Goods may be delivered in advance of the quoted delivery date upon Safapond Direct Ltd giving reasonable notice to Customer. Goods will be delivered within 28 days of order, provided payment has been received.
6.3 Where the Goods are to be delivered in instalments, each delivery constitutes a separate contract and failure by Safapond Direct Ltd to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments will not entitle the Customer to treat the Contract as a whole as repudiated.
6.4 If the Customer fails to take delivery of the Goods or fails to give Safapond Direct Ltd adequate instructions for delivery then, without prejudice to any other of its rights or remedies, Safapond Direct Ltd may:
(a) store the Goods until actual delivery and charge the Customer for the reasonable costs of storage; or
(b) sell the Goods at the best price readily obtainable and (after deducting all reasonable expenses) charge the Customer for any shortfall below the price under the Contract.
6.5 Time of delivery of goods or performance of services shall not be of the essence of the Contract.
7. Risk and title
7.1 Risk in the Goods passes to the Customer:
(a) where the Goods are collected from Safapond Direct Ltd’s premises by the Customer, when Safapond Direct Ltd notifies the Customer that the same are available for collection; or
(b) where the Goods are delivered by Safapond Direct Ltd to some other location, on delivery or, if the Customer fails to take delivery of the Goods, when Safapond Direct Ltd has tendered delivery.
7.2 Notwithstanding the passing of risk in the Goods, title in the Goods shall not pass to the Customer until Safapond Direct Ltd has received in cash or cleared funds full payment of the price of the Goods and all other goods and/or services to be supplied by Safapond Direct Ltd to the Customer for which payment is then due.
7.3 Until title in the Goods passes to the Customer:
the Customer will hold the same as Safapond Direct Ltd’s fiduciary agent and bailee, keep the same in good condition and separate from other goods of the Customer and third parties and properly stored protected insured and identified as being Safapond’s property.
Safapond Direct Ltd may (unless the Goods have been resold) require the Customer to deliver up the same to Safapond Direct Ltd and, if Customer fails to do so, Safapond Direct Ltd may enter upon any premises of the Customer or any third party where the Goods are stored and repossess the same.
7.4 The Customer may not pledge or charge by way of security any Goods owned by Safapond Direct Ltd, but if it does so all moneys owing by the Customer to Safapond Direct Ltd become (without prejudice to any other right or remedy of Safapond Direct Ltd) due and payable.
7.5 Cancellations and returns
Mail order, telephone and internet sales to individuals (not businesses) are covered by the Consumer Protection (Distance Selling) Regulations 2000 (UK Law Directive 97/7/EC), which protects you by providing a 7 working day cooling off period after the day after the product has been delivered. A customer has the option to cancel any order between the time of placing it and 7 working days after delivery. Cancellations must be in writing by post or by email to (but not to any other email address). You have the right to receive a refund within 30 days of cancellation. We normally pay refunds on receipt of the undamaged goods. We will make a deduction from the refund to cover the full cost of delivery. You are advised to retain the packaging. You will find it hard to return the item without appropriate packaging. The goods must not have been fitted, installed or used in anyway. The goods must be unmarked and free from blemishes of any kind, and you must return them in a saleable condition. We cannot accept the return of products which are damaged after delivery. When choosing a carrier to return your goods to us, you must make sure that Safapond Direct Ltd are allowed to open and inspect the contents when we receive them. Our warehouse will refuse delivery of the goods if the carrier will not allow them to inspect the goods, and they will be returned to you on your carrier. This could incur further costs for you. Returned items to us must be sent by recorded delivery. Your package will not be accepted unless we have had notification from you by writing that the goods are being returned.
8. Warranties and liability
8.1 Safapond Direct Ltd warrants that the Goods will correspond with their relevant specification at delivery and, where appropriate, will be free from defects in material and workmanship for a period of 12 months from delivery. Safapond Direct Ltd shall have no liability under this condition 8.1
(a) for any defect arising from any drawing, design or specification supplied by the Customer;
(b) for any defect arising from fair wear and tear, wilful damage, negligence, failure to follow Safapond Direct Ltd’s instructions or recommendations, misuse alteration or repair of the Goods without Safapond Direct Ltd’s approval;
(c) if the price for the Goods has not been paid by the due date for payment.
8.2 Subject as provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (defined in Unfair Contract Terms Act 1977), all terms implied by law are excluded to the fullest extent permitted.
8.3 Any claim by the Customer based on a defect in quality or condition of the Goods or their failure to correspond with an appropriate specification (a “Claim”) must (whether or not delivery is refused by the Customer) be notified to Safapond Direct Ltd within 7 days of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure, provided that Customer notifies Safapond Direct Ltd of such defect or failure within [1] month of delivery. If delivery is not refused and the Customer does not notify Safapond Direct Ltd accordingly then:
the Customer may not reject the Goods;
Safapond Direct Ltd has no liability for such defect or failure, and
the Customer is bound to pay the price as if the Goods had been delivered in accordance with the Contract.
Where a valid Claim is notified to Safapond Direct Ltd in accordance with these Conditions, Safapond Direct Ltd may replace or re-perform the Goods (or part of the same) free of charge or refund to the Customer the Price, but shall have no further liability to the Customer.
8.4 Except where death or personal injury is caused by Safapond Direct Ltd’s negligence, Safapond Direct Ltd is not liable to the Customer by way of representation (unless fraudulent), common law duty or under any express or implied term of the Contract, for any indirect, special or consequential loss or damage whether for loss of profit or otherwise (whether caused by the negligence of Safapond Direct Ltd, its employees or agents or otherwise) arising in connection with the supply of Goods or their use or resale by the Customer. The entire liability of Safapond Direct Ltd in connection with the Contract shall not exceed the Price, save expressly provided in these Conditions.
8.5 Safapond Direct Ltd’s obligations under the Contract will be suspended to the extent that it is prevented or hindered from complying with the same by any cause beyond its reasonable control. Safapond Direct Ltd will use reasonable endeavours to remedy such cause and will resume the performance of such obligations as soon as reasonably possible after the removal of the cause.Unless specifically agreed in writing by it, Safapond Direct Ltd shall have no responsibility whatsoever for the siting, installation, erection or commissioning of any Goods or for any supervision of the same. Irrespective of whether Safapond Direct Ltd is responsible for installing the Goods, the Customer is responsible for ensuring that the site for installation is suitable for the Goods in question and that all necessary consents and approvals for installation of the same have been obtained.
8.6 Safapond Direct Ltd stress that for the highest level of protection the SafaDeck should be placed above the water surface. This is to ensure that the child does not come into contact with any dangerous water. Customers are reminded that when it comes to keeping young children safe, there is no substitute for adult supervision. Whilst placing the grid just under the water creates a more discreet appearance, the effect of this is that a degree of potentially dangerous water may exist for which Safapond Direct Ltd cannot be held responsible.
9. Compliance
9.1 If a claim is made against the Customer that the Goods or their use infringes the intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Customer, Safapond Direct Ltd is to indemnify Customer against all loss, damages, costs and expenses incurred by the Customer in connection with the claim, or paid or agreed to be paid by the Customer in settlement of the claim, provided that:
(a) Safapond Direct Ltd is given full control of any related proceedings or negotiations;
(b) the Customer gives Safapond Direct Ltd all reasonable assistance for the purposes of such proceedings or negotiations and does nothing which would or might compromise any such proceedings without Safapond’s consent;
(c) the Customer does nothing which would or might vitiate any insurance policy or cover which the Customer has in relation to such infringement, and this indemnity will not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer will use its best endeavours to do);
(d) without prejudice to any common law duty of the Customer, Safapond Direct Ltd may require the Customer to take such steps as Safapond Direct Ltd may reasonably require to mitigate any such loss, or damage for which Safapond Direct Ltd is liable to indemnify the Customer under this condition.
9.2 The Customer will:-
comply with all statutory and regulatory requirements relating to possession and use of the Goods and ensure that any person buying the Goods from the Customer complies with such requirements;
ensure that any materials provided by it for use by Safapond Direct Ltd in performing the Contract shall be without defect or fault;
comply with all reasonable requirements of Safapond Direct Ltd relating to the provision of Goods including ensuring that it has in place at any site at which Safapond Direct Ltd is perform services comprised within the Goods public liability insurance to a level and covering such risks as Safapond Direct Ltd may approve;
keep confidential (to the extent that the same are not in the public domain) all drawings, specifications and other technical information provided by Safapond Direct Ltd in connection with the Contract; and
(e) indemnify Safapond Direct Ltd against any liability, loss or damage resulting from any failure to comply with such requirements.
10. Insolvency of Customer
10.1 Without prejudice to any its other rights or remedies, Safapond Direct Ltd may cancel the Contract or suspend any further deliveries under the Contract if:-
(a) the Customer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (other than by way of amalgamation or reconstruction); or
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the Customer’s undertaking; or
(c) the Customer ceases, or threatens to cease, to carry on business; or
(d) Safapond Direct Ltd reasonably believes that any of the above events is about to occur.
10.2 If the Goods are delivered but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11. General
11.1 Safapond Direct Ltd may assign or sub-contract this Contract or any part of the same.
11.2 Notices required or permitted to be given under these Conditions must be in writing addressed to the relevant party at its registered office or principal place of business.
11.3 No waiver by Safapond Direct Ltd of any breach of the Contract by the Customer is considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any provision of these Conditions is held by a competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question is not affected.
11.5 Unless otherwise agreed in writing the Contract is governed by the laws of England . Customer will submit to the non-exclusive jurisdiction of the English courts.
Additional Terms and Conditions Applicable to Services Rendered by SafaPond Direct Ltd (“Additional Service Terms”)
1 Definitions
1.1 In these Additional Service Terms any reference to “Conditions”, “Contract”, “Customer”, “Goods”, and “SafaPond” shall have the meaning attributed in the “SafaPond Direct Ltd – Conditions of Sale”(“Conditions of Sale”).
1.2 In addition to the definitions referred to in 1.1 above:
1.2.1 “Service” means any labour activity performed by SafaPond Direct Ltd including, but not limited to, installation, servicing, and repair of the SafaDeck together with any associated activities to be performed by SafaPond Direct Ltd at the request of the customer.
1.2.2 “Provider” means anyone engaged to undertake the Service by SafaPond Direct Ltd.
2 Application
2.1 The conditions referred to in this document shall apply where any supply of Services, either wholly or in part, is made in accordance with the Conditions of Sale.
3 Performance
3.1 SafaPond Direct Ltd shall perform the Service agreed with the customer for the price agreed with the customer provided always that:
3.1.1 All information provided to SafaPond Direct Ltd by the customer relevant to the Service to be performed is accurate at the time of its provision and at the time the Service is to be performed.
3.1.2 The information referred to in 3.1.1 shall include, but shall not be limited to, the dimensions of the pond, the shape, condition, location and accessibility of the pond or site of the Service to be performed.
3.1.3 If condition 3.1.1 is not complied with SafaPond Direct Ltd shall be entitled to do any of the following or such other action as is deemed by SafaPond Direct Ltd to be appropriate in the circumstances at SafaPond Direct Ltd’s absolute discretion:
3.1.3.1 Undertake the Services in any event; and/or
3.1.3.2 In consultation with the Customer re-quote for the Service to be undertaken together with any associated cost of parts, consumables etc associated with performance of the Service; and/or
3.1.3.3 Decline to undertake the Service; and/or
3.1.3.4 Charge a fee (“Call Out Fee”) in recompense for any time and expenses incurred as a consequence of the inaccurate information given which would not otherwise have been incurred but for that inaccurate information and such fee may include an element of lost profits.
4 Call Out Fee
4.1 A Call Out Fee may be charged in accordance with the provisions of paragraph 3. Such fee shall be set at SafaPond Direct Ltd’s discretion and shall take into account travel costs, including time and expenses, labour and lost profits. Call Out Fees shall be made available to the Customer, upon the Customer’s request, in advance of any Service being performed
5 Beginning of Service
5.1 Should the rendering of Service(s) endanger life or health of the Service Provider, SafaPond Direct Ltd shall be entitled to delay the beginning of the work until circumstances have reasonably improved or rectified by the customer.
6 Interruptions
6.1 If the performance of the Service needs to be interrupted for an unreasonable period of time, or such time as may require the re-attendance of the Service Provider on a day or days when they need not otherwise have attended, SafaPond Direct Ltd may make such charges, and the Customer shall pay, such charges as SafaPond Direct Ltd deems appropriate (such charges to be proportionate to the Service).
7 Preparation for Service
7.1 SafaPond Direct Ltd shall agree with the Customer an approximate time for commencement of the Service.
7.2 The Customer shall ensure that all preparatory works to facilitate the provision of the Service are complete so that the Service may commence at the agreed commencement time.
7.3 The Customer shall ensure that the Service Provider has appropriate access to the site at which the Service is to be performed. Appropriate access is to include, where applicable, appropriate vehicular access and parking such that the Service Provider is not compromised either in health or safety or financially
7.4 Appropriate access referred to in 7.3 shall include, where applicable, the provision of any necessary permits (including parking permits) or authorities.
8 Resources and Equipment
8.1 The Customer shall provide such reasonable resources as the Service Provider requests to allow the Service Provider to provide the service including, but not limited to, mains electricity.
9 Safety
9.1 The Customer shall take all measures necessary for the prevention of accidents and the protection of the Service Provider and the Service Provider’s tools, property and vehicles, whilst providing the Service. The Customer shall inform the Service Provider of any site specific issues which are likely to impact on the safety of the Service Provider.
10 Liability/warranty/guarantee
10.1 Safapond Direct Ltd offers no guarantee or warranty in respect of Services Provided save to the following extent:
10.1.1 Safapond Direct Ltd or its Service Provider will install the SafaDeck in accordance with its standard fitting instructions in force at the time of the installation, which are available on request and are published on its website www.safaponddirect.co.uksubject to the installer’s discretion dependent upon the specifics of the pond in which the installation takes place.
10.1.2 Regardless of the provisions contained in 10.1.1 Safapond Direct Ltd or its Service Provider will ensure that the installation of the SafaDeck carried out by them results in the Safadeck being safe and fit for the purpose for which the SafaDeck was designed, subject to any contrary agreement between the Customer and SafaPond Direct Ltd made in advance of the installation.
10.1.3 If the customer identifies that the SafaDeck has been installed other than in accordance with the provisions of 10.1.1 and 10.2.2 the customer shall notify Safapond Direct Ltd immediately and, in any event, within 14 days of the installation having been completed.
10.1.4 Upon receipt of a notification referred to in 10.1.3 within the time limit set out in that paragraph Safapond Direct Ltd shall rectify the installation at no cost to the Customer to comply with the standards set out in 10.1.1 and 10.1.2 as soon as reasonably practicable and the customer shall facilitate the same.
10.1.5 If following a notification under 10.1.3 the initial installation is found to comply with the standards set out in 10.1.1 and 10.1.2 the customer shall reimburse Safapond Direct Ltd for and costs incurred in investigating the notification including, where a site visit has been necessary, paying the Call Out fee.
10.2 Any warranty or guarantee offered in respect of any products supplied by SafaPond Direct Ltd which may be conferred by the Conditions of Sale shall be unaffected by clause 10.1.
10.3 SafaPond Direct Ltd shall take reasonable care in the performance of any Service taking into account all of the circumstances at the time of provision of the Service and taking into account the nature of the Service being performed.
10.4 SafaPond Direct Ltd shall not be liable for acts of negligence except where the Customer provides evidence that essential obligations of the contract are violated
10.5 Where the Service provided by SafaPond Direct Ltd, including any Service Provider, relates to a pond, the Customer warrants that the pond is of proper construct and is in a suitable condition of cleanliness and repair for the works to be undertaken taking into account any and all necessary actions of the Service Provider necessary for providing the Service including but not limited to:
10.5.1 Entry and egress from the pond;
10.5.2 Standing in the pond;
10.5.3 Working around the pond;
10.6 SafaPond Direct Ltd shall not be liable for any damage resulting from performance of the Service where the warranties provided by the Customer and referred to in 10.5 are incorrect.