The Stickleback Fish Company Limited – Terms & Conditions
The customer’s attention is drawn in particular to the provisions of clause 9.
1.1 – Definitions. In these conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 1 1.6.
Contract: the contract between Stickleback Fish and the customer for the sale of the purchase of the goods in accordance with these conditions.
Customer: the person or firm who purchases the goods from Stickleback Fish.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the order:
Order: the customer’s order for the goods, as set out:
- in the customer’s written or emailed purchase order form; or
- in the customer’s written acceptance of Stickleback Fish’s quotation; or
- telephone or voicemail order made by the customer; as the case may be
Stickleback Fish: The Stickleback Fish Company Limited of Unit 4, Apex point, Travellers Lane, Welham Green, North Mymms, Hatfield, AL9 7HB (registered in England and Wales with company number 05476544).
1.2 – Construction. In these conditions, the following rules apply:
- A person includes a natural person, corporate or unincorporated body (whether or not having seperate legal personality).
- A reference to a party includes its personal representatives, successors or permitted assigns.
- A reference to a statute or statutory provision is a reference to such a statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- A reference to writing or written includes faxes and e-mails.
2. Basis of Contract
2.1 – These conditions apply to the contract to the exclusion of any other terms that the customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 – The order constitutes an offer by the customer to purchase the goods in accordance with these conditions. The customer is responsible for ensuring that the terms of the order are complete and accurate and meet the requirements of the customer.
2.3 – The order shall only be deemed to be accepted when:
- Stickleback Fish issues a written acceptance of the order; or
- On delivery of the goods in accordance with clause 4, at which point the contract shall come into existence.
2.4 – The contract constitutes the entire agreement between the parties. The customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Stickleback Fish which is not set out in the contract.
2.5 – Any samples, drawings, descriptive matter, or advertising produced by Stickleback Fish and any descriptions or illustrations contained in Stickleback Fish’s marketing material are produced for the sole purpose of giving an approximate idea of the goods described in them. They shall not form part of the contract or have any contractual force.
2.6 – A quotation for the goods given by Stickleback Fish shall not constitute an offer. A quotation shall only be valid for a period of 20 business days from its date of issue.
2.7 – Once a contract is created the customer shall not be entitled to cancel, vary and/or postpone the order without the prior written consent of Stickleback Fish subject to any such terms and conditions as Stickleback Fish may reasonably require including a full and continuing indemnity by the customer in favour of Stickleback Fish against all losses (including consequential loss), costs, damages, charges, expenses, interest, penalties and other sums, that Stickleback Fish may incur whether incurred directly or indirectly as a result of the cancellation, variation and/or postponement of the contract.
3.1 – The customer acknowledges and accepts that there is no guarantee that Stickleback Fish are able to supply the goods and any order is at all times subject to the availability of the relevant goods at that time.
3.2 – In the event that Stickleback Fish are unable to source any good(s) as part of an order, Stickleback Fish shall use reasonable endeavours to source as close an alternative product as is available for the customer to consider (alternative product). The alternative product shall be subject to the same delivery and acceptance provisions as set out in clauses 4 and 5 of these conditions.
4.1 – Stickleback Fish shall ensure that:
- each delivery of the goods is accompanied by a delivery note which shows the date of the order, all relevant customer and Stickleback Fish reference numbers, the price, the type and quantity of the goods (including the code number of the goods, where applicable), special storage instructions (ifany) and, if the order is being delivered by instalments, the outstanding balance of goods remaining to be delivered: and
- if Stickleback Fish requires the customer to return any packaging materials to Stickleback Fish, that fact is clearly stated on the delivery note. The customer shall make any such packaging materials available for collection at such times as Stickleback Fish shall reasonably request
4.2 – Delivery of the Goods shall take place and be deemed completed:
- Where Stickleback Fish are to deliver the goods to the customer at the location set out in the order or such other location as the parties may agree (delivery location) and there is a representative of the customer at the delivery location, on the completion of unloading of the goods at the delivery location: or
- Where Stickleback Fish are to deliver the goods to the customer at the delivery location and there is no representative of the customer at the delivery location, on the completion of unloading of the goods at the delivery location in accordance with the customer’s instructions: or
- Where it is agreed that the customer shall collect the Goods from Stickleback Fish’s premises or such other location as may be advised by Stickleback Fish prior to delivery (Stickleback’s Premises) within 3 business days of Stickleback Fish notifying the customer that the goods are ready
4.3 – Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Stickleback Fish shall not be liable for any delay in delivery of the goods that is caused by a Force Majeure Event or the customer’s failure to provide Stickleback Fish with adequate delivery instructions or any other instructions that are relevant to the supply of the goods.
4.4 – If Stickleback Fish fails to deliver the goods, its liability shall be limited to the costs and reasonable expenses incurred by the customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the goods. Stickleback Fish shall have no liability for any failure to deliver the goods to the extent that such failure is caused by a Force Majeure Event or the customer’s failure to provide Stickleback Fish with adequate delivery instructions or any other instructions that are relevant to the supply of the goods.
4.5 – If the customer fails to accept delivery of the goods in accordance with clause 4.2, then, except where such failure or delay is caused by a Force Majeure Event or Stickleback Fish’s failure to comply with its obligations under the contract:
- delivery of the goods shall be deemed to have been completed on the day on which Stickleback Fish notified the customer that the goods were ready; and
- where relevant, Stickleback Fish shall store the goods until delivery takes place, and charge the customer for all related costs and expenses (including insurance)
4.6 – The customer shall not be entitled to reject the goods if Stickleback Fish delivers up to and including 10% more or less than the quantity of goods ordered, but a pro rata adjustment shall be made to the order invoice on receipt of notice from the customer that the wrong quantity of goods was delivered.
4.7 – Stickleback Fish may deliver the goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the customer to cancel any other instalment.
5. Quality & Returns
5.1 – Stickleback Fish warrants that on delivery the goods shall:
- conform in all material respects with their description: and
- be of satisfactory quality (within the meaning of the Sale of Goods Act 1979)
5.2 – Subject to clause 5.3, if:
- the customer gives notice in writing to Stickleback Fish on the date of delivery in accordance with clause 4 that some or all of the goods do not comply with the warranty set out in clause 5. I, or that they do not wish to accept the Alternative Product supplied in accordance with clause 2:
- Stickleback Fish is given a reasonable opportunity of examining such goods; and
- the customer (if asked to do so by Stickleback Fish) returns such goods to Stickleback Fish’s place of business at Stickleback Fish’s cost or, at Stickleback Fish’s discretion, makes the goods available for collection by Stickleback Fish on the same date or the next calendar day following delivery under clause 4, Stickleback Fish shall, at its option, replace the defective goods, or refund the price of the defective goods in full. The customer acknowledges and understands that due to the type of goods, any claim or notice made by the customer after the date of delivery of the goods, in relation to the quality of the goods and/or the conformity of the goods with clause 5. I shall not be accepted by Stickleback Fish and they shall have no liability or obligation to consider or respond to such a claim or notice.
5.3 – Stickleback Fish shall not be liable for goods’ failure to comply with the warranty set out in clause 5.1, nor shall they be obliged to replace the defective goods, or consider a refund for the price of the goods in any of the following events:
- the customer makes any further use of such goods after giving notice in accordance with clause 5.2;
- the defect arises because the customer failed to follow Stickleback Fish’s oral or written instructions as to the storage, use and maintenance of the goods or (if there are none) good trade practice regarding the same;
- the customer alters such goods without the written consent of Stickleback Fish;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- the goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements
5.4 – In the event that there is any delay caused in the return of goods to Stickleback Fish under clause 5.2 due to the customers actions no refund or replacement shall be made by Stickleback Fish and Stickleback Fish shall be entitled to invoice for the full cost of the goods.
5.5 – Where any order made by the customer relates to live goods, the customer acknowledges and accepts that such orders are at the complete risk of the customer and that Stickleback Fish provide no guarantee or warranty that the goods shall be alive on delivery in accordance with clause 4. Stickleback Fish shall not accept any mortality claims relating to goods.
5.6 – Except as provided in this clause 5, Stickleback Fish shall have no liability to the customer in respect of the goods’ failure to comply with the warranty set out in clause 5.1.
5.7 – The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the contract.
5.8 – These conditions shall also apply to any replacement goods supplied by Stickleback Fish.
6. Title & Risk
6.1 – The risk in the goods shall pass to the customer on completion of delivery.
6.2 – Title to the goods shall not pass to the customer until Stickleback Fish has received payment in full (in cash or cleared funds) for:
- the goods; and
- any other goods or services that Stickleback Fish has supplied to the customer
6.3 – Until title to the goods has passed to the customer, the customer shall at its own cost:
- hold the goods on a fiduciary basis as Stickleback Fish’s bailee;
- store the goods separately from all other goods held by the customer so that they remain readily identifiable as Stickleback Fish’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the goods;
- maintain the goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- notify Stickleback Fish immediately if it becomes subject to any of the events listed in clause 8.2; and
- give Stickleback Fish such information relating to the goods as Stickleback Fish may require from time to time, but the customer may resell or use the goods in the ordinary course of its business.
6.4 – If before title to the goods passes to the customer the customer becomes subject to any of the events listed in clause 8.2, or Stickleback Fish reasonably believes that any such event is about to happen and notifies the customer accordingly, then, provided that the goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Stickleback Fish may have, Stickleback Fish may at any time require the customer to deliver up the goods and, if the customer fails to do so promptly, enter any premises of the customer or of any third party where the goods are stored in order to recover them.
7. Price & Payment
7.1 – The customer acknowledges and accepts that the price for the goods is subject to external market conditions outside of the control of Stickleback Fish which fluctuate constantly and shall therefore be Stickleback Fish’s price list as at the date of delivery. The price of the goods shall be the price set out in the order, or, if no price is quoted, the price set out in Stickleback Fish’s delivery notice supplied with the goods at the date of delivery in accordance with clause 4.1.
7.2 – Unless otherwise notified by Stickleback Fish the price of the goods is inclusive of the costs and charges of packaging, insurance and transport of the where a separate charge is agreed with the customer the charge shall be invoiced to the customer.
7.3 – The price of the goods is exclusive of amounts in respect of value added tax (VAT). The customer shall, on receipt of a valid VAT invoice from Stickleback Fish, pay to Stickleback Fish such additional amounts in respect of VAT as are chargeable on the supply of the goods.
7.4 – Stickleback Fish reserves the right to request full or part payment for the goods prior to delivery.
7.5 – Stickleback Fish may invoice the customer for the goods on or at any time after the completion of delivery.
7.6 – Subject to these conditions, where the customer is:
- On a “monthly account” (as notified by Stickleback Fish), they shall receive a monthly statement and invoice from Stickleback Fish confirming the cost of the orders supplied in the preceding calendar month and the customer shall pay the invoice in full and in cleared funds within 15 calendar days of the date of the monthly statement and invoice: or
- On “a weekly account” (as notified by Stickleback Fish), they shall receive a weekly statement and invoice from Stickleback Fish confirming the cost of the orders supplied in the preceding calendar week and the customer shall pay the invoice in full and in cleared funds within 7 calendar days of the date of the weekly statement and invoice: or
- Is on a “cash on delivery” account all payments shall be made at the time of delivery in accordance with these conditions
Where required all payments shall be made to the bank account nominated in writing by Stickleback Fish. Time of payment is of the essence.
7.7 – If the customer fails to make any payment due to Stickleback Fish under the contract by the due date for payment (due date), then the customer shall pay interest on the overdue amount at the rate of 4% per annum above The Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgement the customer shall pay the interest together with the overdue amount.
7.8 – If the customer makes payment of an invoice by way of cheque which, when presented to Stickleback Fish’s bank, is returned, represented or rejected then the customer shall pay the bank charge of l 15 which Stickleback Fish incur and the Customer shall pay the bank charge under this clause 8 together with the overdue amount.
7.9 – The customer shall pay all amounts due under the contract in full without any deduction or withholding except as required by law and the customer shall not be entitled to assert any credit, set-off or counterclaim against Stickleback Fish in order to justify withholding payment of any such amount in whole or in part. Stickleback Fish may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the customer against any amount payable by Stickleback Fish to the customer.
8. Customer’s Insolvency or Incapacity
8.1 – If the customer becomes subject to any of the events listed in clause 8.2, or Stickleback Fish reasonably believes that the customer is about to become subject to any of them and notifies the customer accordingly, then, without limiting any other right or remedy available to Stickleback Fish, Stickleback Fish may cancel or suspend all further deliveries under the contract or under any other contract between the customer and Stickleback Fish without incurring any liability to the customer, and all outstanding sums in respect of goods delivered to the customer shall become immediately due.
8.2 – For the purposes of clause 8.1, the relevant events are:
- the customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply:
- the customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors:
- (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the customer, other than for the sole purpose of a scheme for a solvent amalgamation of the customer with one or more other companies or the solvent reconstruction of the customer:
- (being an individual) the customer is the subject of a bankruptcy petition or order;
- a creditor or encumbrancer of the customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days:
- (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the customer:
- (being a company) a fioating charge holder over the customer’s assets has become entitled to appoint or has appointed an administrative receiver:
- a person becomes entitled to appoint a receiver over the customer’s assets or a receiver is appointed over the customer’s assets:
- any event occurs, or proceeding is taken, with respect to the customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(h) (inclusive):
- the customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
- the customer’s financial position deteriorates to such an extent that in Stickleback Fish’s opinion the customer’s capability to adequately fulfil its obligations under the contract has been placed in jeopardy; and
- (being an individual) the customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation
8.3 – Termination of the contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the contract shall continue in full force and effect.
9. Limitation of Liability
9.1 – Nothing in these conditions shall limit or exclude Stickleback Fish’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 12 of the Sale of Goods Act 1979
9.2 – Subject to clause 1:
- Stickleback Fish shall under no circumstances whatever be liable to the customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the contract; and
- Stickleback Fish’s total liability to the customer in respect of all other losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the goods
10. Force Majeure
Neither party shall be liable for any failure or delay in performing its obligations under the contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including availability of the goods, strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of Stickleback Fish’s subcontractors and/or suppliers.
11.1 – Assignment and subcontracting.
- Stickleback Fish may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract
- The customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or
- Obligations under the contract without the prior written consent of Stickleback Fish
11.2 – Notices.
- Any notice or other communication given to a party under or in connection with the contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail
- A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first class post or recorded delivery, at 10:00am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one business day after transmission
- The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
11.3 – Severance
- If any court or competent authority finds that any provision of the contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the contract shall not be affected
- If any invalid, unenforceable or illegal provision of the contract would be valid, enforceable and legal if some part of it were deleted and/or varied, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable
11.4 – Waiver. A waiver of any right or remedy under the contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.5 – Third party rights. A person who is not a party to the contract shall not have any rights under or in connection with it.
11.6 – Variation. Except as set out in these conditions, any variation to the contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Stickleback Fish.
11.7 – Governing law and jurisdiction. The contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.