Terms and Conditions
1. Interpretation
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, 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 12.4.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Delivery Location: has the meaning given in clause 4.4.
Description: any description of the Goods, set out in the Order or agreed in writing by the Customer and the Supplier.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's request for the Goods in accordance with the Quotation, as set out in the Customer's purchase order form or the Customer's written acceptance of the Supplier's Quotation as the case may be.
Price: has the meaning set out in clause 8.1.
Quantity: means the number of Goods set out in the Order.
Quotation: means the quotation provided by the Supplier to the Customer containing information about the proposed Order including but not limited to the Price and the type and Quantity of the Goods.
Supplier: Eden Wholesale Plants Ltd (registered in England and Wales with company number 14804218 with registered office Tree Farm Salford Road, Aspley Guise, Milton Keynes, England, MK17 8HZ).
Warranty Period: has the meaning given in clause 6.1.
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written excludes fax and email.
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 law, trade custom, practice or course of dealing.
2.2 The Quotation for the Goods given by the Supplier shall not constitute an offer. A Quotation shall only be valid for a period of 20 Business Days from its date of issue.
2.3 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions on the same terms as the Quotation. The Customer is responsible for ensuring that the terms of the Order and any applicable Description are complete and accurate.
2.4 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point and on which date the Contract shall come into existence.
2.5 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.6 Any samples, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
3. Goods
3.1 The Goods are described in the Supplier's catalogue as modified by any applicable Description.
3.2 The Supplier reserves the right to alter the Goods or Description if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. Delivery
4.1 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier 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 the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.2 The Supplier and the Customer agree that the Delivery Location may be at third party premises as directed or described by the Customer in the Order. The Customer shall be responsible for any actions taken by such third party for any obligation in these Conditions which is expressed to be an obligation of the Customer (such as taking delivery, storage and preservation of the Goods).
4.3 Only one of clauses 4.4 or 4.5 will apply for any one Order the relevant delivery option to be specified in the Quotation. Where there is no delivery option set out in the Quotation, clause 4.4 will apply by default.
4.4 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready and:
(a) the Supplier shall ensure that:
(i) each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and Quantity of the Goods (including the code number of the Goods, if any), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(ii) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
(b) Delivery is completed on the completion of unloading of the Goods at the Delivery Location. 4 (c) The Supplier 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 the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 Where the Customer and the Supplier have agreed that the Delivery Location is from the Supplier's premises the Customer must take delivery of the Goods on the day stated in the Order or within three Business Days of the Supplier notifying the Customer that the Goods are ready whichever is the later.
4.6 For the purposes of clauses 4.4 and 4.5 Delivery is completed on the completion of loading of the Goods at the Delivery Location.
4.7 If the Customer fails to take or accept (as required under the relevant delivery option) delivery of the Goods except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract in respect of the Goods delivery of the Goods shall be deemed to have been completed at midday on the day the Goods were ready for delivery at the Delivery Location.
4.8 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted (as required under the relevant delivery option) actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.9 The risk in the Goods shall pass to the Customer on completion of delivery.
5. Quantity
5.1 If the Supplier delivers fewer Goods than is set out in the Order (a Shortfall) the Customer may not reject the Goods delivered but shall promptly notify the Supplier as soon as reasonably possible with reasonable evidence of the Shortfall.
5.2 If the Supplier is satisfied, acting reasonably, of the evidence of Shortfall the Supplier may at its discretion either:
(a) Make up the Shortfall as soon as reasonably possible; or
(b) make a pro rata adjustment to the invoice for the Goods. 5
6. Quality
6.1 The Supplier warrants that on delivery, and for a period of 1 month from the date of delivery (Warranty Period), the Goods shall:
(a) conform with their Description; and
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2 Subject to clause 6.3, if:
(a) the Customer gives notice in writing to the Supplier during the Warranty Period promptly from the time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1; and
(b) the Supplier is given a reasonable opportunity of examining such Goods, the Supplier may, at its option, replace the defective Goods, or refund the price of the defective Goods.
6.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 6.1 if:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, use or preservation of the Goods or good horticultural trade practice regarding the same; or
(c) the defect arises as a result of negligence, or abnormal storage by the Customer contrary to accepted horticultural practice.
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.1.
6.5 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.
6.6 These Conditions shall apply to any replacement Goods supplied by the Supplier.
7. Title
7.1 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that 6 the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment.
7.2 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d); and
(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Customer: provided that the obligations in this clause 7.2 shall not prevent the Goods being planted if this necessary to preserve the Goods or allow the Customer to comply with any contractual obligation to its own customer.
7.3 If the Customer fails to pay the Price in accordance with the time for payment stated in the Contract the Supplier may require the Customer to deliver up all Goods in its possession that have not been resold or planted 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.
8. Price and payment
8.1 The Price shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
8.2 The Supplier may, by giving notice to the Customer at any time up to 10 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); 7
(b) any request by the Customer to change the Delivery Location, delivery date(s), quantities or types of Goods ordered, or the Description; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and (b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.4 The Customer shall pay each invoice submitted by the Supplier:
(a) On the date specified in the Contract or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
(c) time for payment shall be of the essence of the Contract.
8.5 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.5 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Limitation of liability
9.1 The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
9.2 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.3 Where the Supplier is in breach of the Warranty set out in clause 6 the Customer’s sole remedy shall be at the Supplier’s discretion either to replace the Goods with Goods of similar Description and quality or make a pro rata refund of the Price to the Customer.
9.4 If there is a Shortfall (as defined by clause 5) the Customer’s sole remedy shall be the remedy set out in clause 5.2.
9.5 Nothing in the Contract limits any liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any liability that legally cannot be limited.
9.6 Subject to clause 9.5, the Supplier's total liability to the Customer shall not exceed the Price.
9.7 Subject to clause 9.5, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
9.8 This clause 9 shall survive termination of the Contract.
10. Termination
10.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if: 9
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 15 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
10.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11. Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 10 days' written notice to the affected party.
12. General
12.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2 Confidentiality.
(a) Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12.3 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
12.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5 Waiver.
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
12.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 12.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.7 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the following addresses (or an address substituted in writing by the party to be served):
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by next working day delivery service, at 9.00 am on the second Business Day after posting; or 12
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when those business hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.8 Third party rights.
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.9 Governing law. The Contract, and any dispute or claim (including noncontractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
12.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.