SAFAPOND LIMITED - 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;

    “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 for the supply of Goods (a “Quotation”) or whose written order for Goods is accepted by Safapond (an “Order”);

    “Goods” means those goods (including any instalment of the same) or other services which Safapond is to supply in accordance with these Conditions;

    “Safapond” means Safapond Limited (registered in England under no. 3644938);

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.L1‑022 The supply

2.1      Safapond supplies and the Customer purchases the Goods in accordance with any Quotation accepted by the Customer or Order accepted by Safapond 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.

2.3     Any advice or recommendation given by Safapond, its employees or agents to the Customer as to the use of the Goods which is not confirmed in writing by Safapond is acted upon at the Customer’s own risk, and accordingly Safapond 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 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.L1‑023 Orders and specifications

3.1     No Order is deemed accepted by Safapond unless confirmed in writing by an authorised representative of Safapond.  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 any necessary information relating to the Goods within a sufficient time to enable Safapond 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 in accordance with a specification submitted by the Customer, the Customer will indemnify Safapond for all loss, damages, costs and expenses incurred by Safapond in connection with any claim for infringement of any third party intellectual property rights resulting from Safapond’s use of the Customer’s specification.

3.5      Safapond 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’s specification, which do not materially affect their quality or performance.

3.6     An Order may not be cancelled by the Customer without Safapond’s written consent. The Customer will indemnify Safapond against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Safapond as a result of any cancellation of such Order.

4.L1‑024 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 is valid for 30 days only or such other time specified in the Quotation, after which time the said price may be altered by Safapond without notice.

4.2      Safapond may by giving notice to the Customer at any time before delivery, increase the Price to reflect any increase in the cost to Safapond 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 adequate information or instructions.

4.3     Save as otherwise agreed in writing, the Price is the factory ex works price.  Where Safapond agrees to deliver Goods it does so as the Customer’s agent and the Customer is liable to pay Safapond 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.L1‑025 Payment

5.1     Unless otherwise agreed in writing, Safapond may invoice the Customer for the price of Goods on or at any time 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 may invoice Customer for the price at any time after Safapond has notified the Customer that the Goods are ready for collection or (as the case may be) Safapond 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) in full within 30 days of the date of Safapond’s invoice. Safapond 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 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) as Safapond 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.L1‑026 Delivery

6.1      Delivery of the Goods is made by the Customer collecting them from Safapond’s premises after Safapond has notified the Customer that the same are ready for collection or, if some other place for delivery is agreed by Safapond, by Safapond 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 and although Safapond 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 giving reasonable notice to Customer.

6.3     Where the Goods are to be delivered in instalments, each delivery constitutes a separate contract and failure by Safapond 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 adequate instructions for delivery then, without prejudice to any other of its rights or remedies, Safapond 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.L1‑027 Risk and title

7.1     Risk in the Goods passes to the Customer:

    (a)  where the Goods are collected from Safapond’s premises by the Customer, when Safapond notifies the Customer that the same are available for collection; or

    (b)  where the Goods are delivered by Safapond to some other location, on delivery or, if the Customer fails to take delivery of the Goods, when Safapond 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 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 to the Customer for which payment is then due.

7.3     Until title in the Goods passes to the Customer:

(a)     the Customer will hold the same as Safapond’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.

(b)     Safapond may (unless the Goods have been resold) require the Customer to deliver up the same to Safapond and, if Customer fails to do so, Safapond 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, but if it does so all moneys owing by the Customer to Safapond become (without prejudice to any other right or remedy of Safapond) due and payable.

8.L1‑028       Warranties and liability

8.1      Safapond 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 [120] months from delivery. Safapond 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’s instructions or recommendations, misuse alteration or repair of the Goods without Safapond’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 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 of such defect or failure within [1] month of delivery. If delivery is not refused and the Customer does not notify Safapond accordingly then:

(a)     the Customer may not reject the Goods;

(b)     Safapond has no liability for such defect or failure, and

(c)     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 in accordance with these Conditions, Safapond 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’s negligence, Safapond 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, 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 in connection with the Contract shall not exceed the Price, save expressly provided in these Conditions.

8.5 Safapond’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 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 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 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.

9.L1‑029       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 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 is given full control of any related proceedings or negotiations;

    (b)  the Customer gives Safapond 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 may require the Customer to take such steps as Safapond may reasonably require to mitigate any such loss, or damage for which Safapond is liable to indemnify the Customer under this condition.

9.2       The Customer will:-

(a)     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;

(b)     ensure that any materials provided by it for use by Safapond in performing the Contract shall be without defect or fault;

(c)     comply with all reasonable requirements of Safapond relating to the provision of Goods including ensuring that it has in place at any site at which Safapond is perform services comprised within the Goods public liability insurance to a level and covering such risks as Safapond may approve;

(d)     keep confidential (to the extent that the same are not in the public domain) all drawings, specifications and other technical information provided by Safapond in connection with the Contract; and

(e)                indemnify Safapond against any liability, loss or damage resulting from any failure to comply with such requirements. 

10.L1‑030       Insolvency of Customer

10.1      Without prejudice to any its other rights or remedies, Safapond 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 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.L1‑032       General

11.1      Safapond 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 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.

Beams are made from anodised aluminium which does not rust. The grids themselves are made from UV-stabilised black plastic. The support line is water resistant.

All components have been thoroughly tested across a range of climatic conditions, all tests being totally successful. Fish and plants remain largely unaffected by the existence of the safety system. Safapond provide a 36 month guarantee on components.

The system is designed to last for years to come.

It will also help protect your koi from Heron attacks!

Safapond Ltd

Unit 6, Cornel Court

Forest Town

Mansfield

Notts NG19 0NF

Tel: 01623 428873

Mobile: 07970  943453  

 info@safapond.com

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