Terms and Conditions
1. IN THESE TERMS:
"Company" means Livefoods Direct Limited (registration number: 1537796) whose registered office is at Houghton Road, North Anston Trading Estate, Sheffield, S25 4JJ; "Consignment" means Goods in one package or a number of packages which are despatched at the same time in one load from one address to one address; "Contract" means the contract for the purchase and sale of the Goods; "Customer" means the person who purchases Goods from the Company; "Frozen Food" means frozen Reptile Food; "Goods" means the goods (including any instalment of the goods or any part of them) which the Company is to supply in accordance with these Terms; "Live Food" means living crickets, locusts, mealworms, flies and any other live insects which the Company may from time to time add to its product range; "Livestock" means any live animals (including reptiles) supplied by the Company to the Customer; "Terms" means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company;
(1.2) Any reference in these Terms 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.
(1.3) The headings in these Terms are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
(2.1) The Company shall sell and the Customer shall purchase the Goods in accordance with the Customer's order if accepted by the Company, subject to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such order is made or purported to be made, by the Customer.
(2.2) No variation to these Terms shall be binding unless agreed in writing between the authorised representatives of the Customer and the Company.
(2.3) The Company's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
(2.4) Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer's own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
(2.5) Subject to clause 2.6, no order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
(2.6) A consumer has the right to cancel a Contract for Goods other than Frozen Food or Live Food at any time up to the end of seven working days after the delivery of the Goods. To exercise the right of cancellation, the consumer must give written notice to the Company giving details of the Goods ordered and (where appropriate) their delivery. If the right of cancellation is exercised after the goods have been delivered the consumer will be responsible for returning the Goods to the Company at the consumers own cost and must take reasonable care to ensure the Goods are not damaged in the meantime or in transit.
(2.7) All Live Food Consignments are charged at their net weight or count on despatch.
(2.8) An order will not be accepted unless the Customer has been granted credit terms by the Company (and it is not in default of such credit terms) or the Customer pays for the order in cash upon placing the order. The Company may accept payment by cheque or postal order in advance or by authorised credit card.
(3.1) The price of the Goods shall be the Company's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company's published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Company's published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Customer, after which time they may be altered by the Company without giving notice to the Customer.
(3.2) The Company reserves the right, by giving written notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company, any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
(3.3) Any quotation for the cost of delivery of Goods shall apply to delivery of Consignments to addresses in mainland England, Scotland or Wales.
(3.4) The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Company, unless agreed otherwise.
(3.5) The cost of returnable containers will be charged to the Customer in addition to the Goods, but full credit will be given to the Customer provided they are returned undamaged to the Company before the due payment date.
4. TERMS OF PAYMENT
(4.1) Subject to any special terms agreed in Writing between the Customer and the Company:
(4.1.1) the Company may invoice the Customer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, in which event the Company shall be entitled to invoice the Customer for the price at any time after the Company has notified the Customer that the Goods are ready for collection or (as the case may be) the Company has tendered delivery of the Goods;
(4.1.2) the Customer shall pay the price of the Goods (without any deduction) upon presentation of the Company's invoice, and the Company shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract.
(4.2) If the Company has received partial payment for any Consignment, it reserves the right to despatch only such part of the Consignment that has been paid for.
(4.3) If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company may:
(4.3.1) cancel the contract or suspend any further deliveries to the Customer;
(4.3.2) appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and
(4.3.3) charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of three per cent per annum above Royal Bank of Scotland plc base rate from time to time, until payment in full is made.
(5.1) The Company may arrange delivery of any Consignment by courier (if the delivery address is mainland England, Scotland or Wales) or by first class Royal Mail post. For addresses in Northern Ireland and the Channel Islands deliveries can be sent by first class Royal Mail but at the "Customers own risk" replacements or refunds will not be given if the orders do not arrive. Alternatively Royal Mail Special Delivery can be requested. The Company cannot ship to any addresses outside the U.K.
(5.2) The Company uses packaging designed to ensure that Live Foods and Frozen Foods arrive in good condition. However, the Company may alter the packaging without notice at any time. The Company shall only deliver Frozen Foods without dry ice, if specifically requested by the Customer, and on the basis that the Company will not be liable for damage to or loss of Frozen Foods despatched in this way.
(5.3) If Goods are in stock, they will normally be despatched within 24 hours. Goods that are not held in stock, or are imported may be subject to delay. Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Company in writing.
(5.4) Consignments sent via Royal Mail may take up to four working days to deliver. No claim for lost deliveries will therefore be accepted until at least four working days have passed since despatch.
(5.5) The Customer is responsible for arranging for the Goods to be received at the address supplied to the Company. The Customer must notify the Company when the order is placed of specific alternate delivery instructions if the Customer will not be present to receive any Consignment.
(5.6) If a Consignment is delivered by private courier the Company does not accept liability for a missing delivery (or part delivery) unless the delivery sheet is altered by the Customer before signing for receipt, and a copy of the sheet is supplied to the Company by the Customer within 48 hours of signature. Otherwise, the Company must be informed of non-delivery within 2 days of the due date of despatch of the Consignment.
(5.7) The Company normally despatches Live Food on Mondays to Thursdays. The Company will only despatch Live Food on Fridays, or on days immediately preceding bank or public holidays or where the Consignment may be subject to delay due to industrial action if specifically requested by a Customer PROVIDING THAT the Company will not be liable for damage to or loss of Live Foods despatched on such days and further that the Customer pays a special delivery fee to be agreed with the Company before despatch.
(5.8) The Company does not accept liability for damage or loss of Live Foods or Frozen Foods in transit for deliveries outside of mainland England, Scotland or Wales unless the Customer agrees that the Company's representative should deliver the Live Foods and/or Frozen Foods personally using Company transport and shall pay a special delivery fee to be agreed with the Company at the time of placing an order. In such cases, the Customer shall be responsible for complying with all legislation and regulations governing the importation of Live Foods and/or Frozen Foods into the country of destination and pay all duties thereon.
(5.9) Where the Goods are to be delivered in instalments, each Consignment shall constitute a separate contract and failure by the Company to deliver any one or more of the Consignments in accordance with these Terms or any claim by the Customer in respect of any one or more Consignments shall not entitle the Customer to treat the Contract as a whole as repudiated.
(5.10) If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions (otherwise than by reason of the Company's fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
(5.10.1) refuse to deliver any further Consignments; and
(5.10.2) store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
(5.10.3) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
6. RISK AND PROPERTY
(6.1) Risk of damage to or loss of the Goods shall pass to the Customer at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
(6.2) Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Company to the Customer for which payment is then due.
(6.3) Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Company's fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company's property, but the Customer may resell or use the Goods in the ordinary course of its business.
(6.4) Until such time as the property in the Goods passes to the Customer, (and provided the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the goods are stored and repossess the Goods.
7. WARRANTIES AND LIABILITY
(7.1) Subject to the following provisions, the Company warrants that the Goods will be fit for any specific purpose notified to the Company in writing, and correspond with their specification at the time of delivery. Frozen Food shall be of satisfactory quality for a period of 1 month from delivery.
(7.2) The above warranty is given by the Company subject to the following conditions:
(7.2.1) The Company shall be under no liability in respect of any Goods arising from any specification or other details (including delivery details) supplied by the Customer;
(7.2.2) Live Foods are subject to shrinkage of up to 10% during transit and therefore no liability is accepted for shrinkage up to this figure;
(7.2.3) the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
(7.2.4) the above warranty does not extend to Goods not bred by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the breeder or manufacturer to the Company;
(7.2.5) the Company accepts no liability to the Customer in respect of any damage, destruction or loss howsoever caused by Live Foods after delivery to the Customer. The Customer shall be solely responsible for ensuring that the Goods are stored and used safely and appropriately. "Intrinsic nature of the goods" means that livefood is unpredictable in behaviour in any given circumstances and may not be totally exclusive of similar liveforms;
(7.2.6) upon receipt of Live Foods (except pre-packed tubs), the Customer must transfer the Goods into containers suitable for the storage of those Goods;
(7.2.7)"Livestock must be cared for by the Customer upon delivery in accordance with veterinary best practice".
(7.3) Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law;
(7.4) Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Terms.
(7.5) Except in respect of death or personal injury caused by the Company's negligence, or liability for defective products under the Consumer Protection Act 1987, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express term of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Customer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.
(7.6) The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company 's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company 's reasonable control. Without limiting the foregoing, adverse weather conditions, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party) shall be regarded as causes beyond the Company's reasonable control.
8. FAULTY GOODS
(8.1) "Any claim by the Customer that Live Foods arrived dead must be notified to the Company within 24 hours of delivery. Any claim by the Customer that Livestock arrived dead, damaged or otherwise in an unacceptable condition must be notified to the Company within 48 hours of delivery. Any claim by the Customer which is based on any defect in the quality or condition of any other Goods or their failure to correspond with the specification shall (whether or not delivery is refused by the Customer) be notified to the Company within 7 days from the date 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. The Customer must telephone the Company to obtain a return authorisation number which must be shown on the outside of the package containing returned Goods. All returned Goods must be accompanied by a copy of the delivery note and a note of the reason/cause for return, and be unused in their original packaging. If the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Live Foods or the other Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Consignment had been delivered in accordance with the Contract.
(8.2) Where any valid claim in respect of any of the Goods which is based on any defect in the quality of condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Terms, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company's sole discretion, refund to the Customer the price of the Goods (or a proportionate part of the price), but the Company shall have no further liability to the Customer.
(8.3) If the returned Goods are found not to be faulty, the Company reserves the right to charge an administration fee and return postage and packing.
(9.1) Any notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
(9.2) No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
(9.3) If any provision of these Terms is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
(9.4) A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
(9.5) The Company will take all reasonable precautions to keep the details of orders and payments secure, but unless the Company is negligent, the Company will not be liable for unauthorised access to information supplied.
(9.6) The Company will only use the information provided for the purpose of fulfilling orders and to notify Customers of products and offers that may be of interest from time to time. A Customer can correct any information, or ask for information to be deleted, by giving written notice to the Company.
(9.7) The Contract shall be governed by the laws of England, and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.