HORTCONSULT LTD TERMS & CONDITIONS OF SALE AND DELIVERY
Section 1. General:
These Terms and Conditions of Sale and Delivery shall be applicable to all quotes and sales made by Hortconsult Ltd hereinafter to be referred to as the ‘Seller’. The ‘Buyer’ means the person or company who accepts a quotation from the Seller and whose order for the goods is accepted and confirmed by the Seller.
1.1 Varying agreements and conditions are only binding when they are confirmed in writing by letter or e-mail methods. All references made by the buyer to its own terms and conditions are hereby expressly rejected. Oral promises and agreements are only binding upon their written confirmation.
1.2 The terms 'goods' or 'seeds' as used in this document shall mean not only seeds, but also plants, parts of plants and any other form of genetic material of flower and vegetable varieties.
Section 2. Offers and Prices
2.1 Offers made by the Seller, also concerning tenders/quotes, will be valid for six weeks from the date the offer is made and confirmed in writing, subject to the goods being available.
2.2 Verbal promises by and arrangements with employees, representatives, agents and other intermediaries of the Seller are not binding unless they have been confirmed in writing by the Seller.
2.3 All prices stated by the Seller are in GBP£ STERLING and are exclusive of VAT, or any other levy or tax if applicable, unless it is explicitly stated otherwise in the offer.
2.4 Any offer made by the Seller is without commitment. If the Buyer accepts the offer, the Seller shall have the right to recall the offer within seven working days after confirmation that the offer has been accepted.
2.5 The Seller reserves the right to change its prices periodically. Each new price listing will invalidate the preceding one with regard to all orders placed albeit new or outstanding.
Section 3. Order placement
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless confirmed in writing.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order, including but not limited to quantity, quality, shipping and forwarding instructions, phyto-sanitary and all other certificate instructions, relating to the goods ordered to enable the Seller to perform the delivery in accordance with its terms.
3.3 If no shipping or forwarding instructions are given, the Seller will use its best judgement in selecting the most efficient route, with all costs paid by the Buyer.
3.4 At the Buyer request a special treatment (pelletizing, priming, coating, etc.) may be applied to the seeds. The costs involved will be charged to the Buyer. The Seller accepts no responsibility whatsoever for the effectiveness of such treatment or any damage, direct or consequential, which may result therefrom.
3.5 No order which has been confirmed by the Seller may be cancelled by the Buyer, except with the agreement in writing and on terms that the Buyer shall indemnify the Seller in full against all loss, costs, damages and other expenses incurred as a result of the cancellation.
3.6 All order shipments must be insured at the Buyer expense, unless otherwise instructed.
Section 4. Delivery
4.1 Delivery shall be Ex Works (EXW) as standard, with other ‘Incoterms’ applied if previously requested by the Buyer and agreed to by the Seller.
4.2 The Seller is permitted to deliver sold goods in parts. If the goods are delivered in parts, the Seller has the right to invoice each part separately.
4.3 The Buyer will be invoiced for the expenses of official certificates, licenses, declarations and other costs, including packaging.
4.4 Return shipments by the Buyer in part or in full are not accepted, unless previously agreed by the Seller. If a return is authorized by the Seller than all costs, including delivery will be paid by the Buyer.
Section 5. Forward orders
5.1 If the Seller is unable to supply forward orders due to any form of crop failure or germination stock problem, the Seller is not obliged to supply, but could offer an over-pack or pro rate to the quantity ordered or offer an equivalent variety.
5.2 The Buyer is not entitled to damages if the Seller is unable to supply an order.
Section 6. Retention of Title
6.1 Until the Buyer has paid the Sellers invoices in full, the Seller retains full ownership of all goods delivered. This retention of title also applies to any claims that the Seller may acquire against the Buyer due to the Buyer failure to fulfill one of its obligations towards the Seller.
6.2 The Buyer shall be permitted to sell or supply goods delivered to the Buyer under retention of ownership to third parties in the context of Buyer business activities under the original variety name indicated by the Seller. In the event of resale, the Buyer is obliged to demand a full retention of title from its Buyer.
6.3 The Buyer is not permitted to pledge the goods or to create any other right with regard to the goods.
Section 7. Payment
7.1 Payment must be received by the Seller within 30 days after the invoice date. At the end of that period, the Buyer will be in default; the Buyer will owe interest at a rate of 1% a month on the outstanding amount as from the date of default. If partial payments are agreed upon and Buyer fails in one term, the full remaining amount will fall due immediately and without further notice.
7.2 Buyer whose registered offices are located outside the United Kingdom shall bear all costs involved in the transfer of funds to the United Kingdom bank of the Seller from abroad. Bank cheques will be accepted only with a minimum value of GBP 200.
7.3 If the Buyer is liquidated, declared bankrupt or granted a suspension of payments, the Buyer payment obligations will fall due immediately and the Seller will be entitled to suspend or cancel any agreement with the Buyer, without prejudice to the Seller right to claim damages or any other legal action.
Section 8. Collection Costs
8.1 If the Buyer fails to perform one or more of its obligations, all costs of obtaining payment by intermediation of a third party for the debt collection, in and out of court will be for the Buyer account.
Section 9. Liability
9.1 The Seller is not liable for any claim of damage resulting from a shortcoming in the performance rendered, except in the case of intent and/or gross negligence on the part of the Seller and/or its employees.
9.2 The Buyer is required to limit as much as possible the damage with regard to the performances about which it files a complaint with the Seller and document any complaint in such a manner that it can be verified by the Seller or a third party.
9.3 In the unlikely event that Seller should appear to have delivered a product, which does not fulfill the given specifications, the Seller will be given the opportunity, to replace the delivered product by a product, which does fulfil the required specifications.
9.4 If the Seller is held liable on the basis of one or more conditions, such liability will be limited to the invoice value ex VAT of the variety under claim; the Seller will in no event be liable for any form of consequential damage and or loss by the Buyer or the Buyers customers.
Section 10. Use and Guarantee
10.1 Seller, or a third party on behalf of Seller, will always provide the Buyer to the best of their knowledge and ability, with all standard cultural information, however without liability for the Seller.
10.2 The Seller guarantees that the performances rendered will comply to the best of its ability with the relevant product specifications. However, the product specifications will not apply as a guarantee. If the goods delivered do not comply with the product specifications, the Buyer will be informed. The Seller furthermore does not guarantee that the performances rendered will comply with the purpose to which they are put by the Buyer. The Seller will rely on the information given to the Seller by a third party on products, which the Seller has purchased from a third party. The Seller can never be held liable for products, which have been supplied to the Seller by a third party.
10.3 If the Seller has specified a germination capacity, it is based only on reproducible laboratory tests. No direct relationship may be assumed between the specified germination capacity and the emergence of the seed at the Buyer. This specified germination capacity merely indicates the germination capacity at the time when and in the circumstances in which the test was performed. Emergence depends, among other things, including but not limited to the location, cultivation methods and climatic conditions at the Buyer premises.
10.4 Any and all guarantees on the part of the Seller will lapse if the Buyer processes the goods or has them processed, repackages the goods or has them repackaged, or uses the goods incorrectly.
Section 11. Defects; Complaint Periods
11.1 The Buyer must inspect the goods purchased upon delivery, or as soon as possible after delivery. In doing so, the Buyer must check whether the goods delivered comply with the confirmation, i.e.: whether the correct goods have been delivered; whether the quantity of the goods delivered corresponds with the agreement, whether the goods delivered meet the agreed quality requirements, or if none were agreed, the requirements that may be stipulated for normal use and or trading purposes.
11.2 If visible defects or deficiencies are established, the Buyer must inform the Seller accordingly in writing within five working days after delivery, specifying the lot number, delivery note and invoice details.
11.3 The Buyer must report any invisible defects to the Seller in writing within six weeks after delivery, specifying the batch, delivery note and/or invoice details.
11.4 Complaints must be described in such a manner that the Seller or a third party can verify them. For that purpose the Buyer must also keep records with regard to the use of the goods and, in the event of resale of the goods, with regard to its Buyers. If the Buyer does not file a complaint within the aforesaid period in point 11.3, the complaint will not be dealt with and its rights will expire.
11.5 In the event of a dispute between the parties concerning the germination capacity, varietal purity or physical purity, a (re)inspection may be performed at the request of either party by the OSTS (The official seed testing station of the United Kingdom, an ISTA station) part of NIAB having its registered office at, NIAB, Huntingdon Road, Cambridge, CB3 OLE, United Kingdom, for the account of the party at fault. The inspection will be performed on the basis of an approved sample. The outcome of this (re)inspection will be binding on both parties, without prejudice to the parties' right to submit disputes on the consequences of this outcome to the institutes referred to in section 18. APPLICABLE LAW
Section 12. Provision of Information
12.1 Information provided by the Seller in any form whatsoever is without commitment. Descriptions, recommendations and illustrations in brochures, leaflets or e-mails are based as closely as possible on experiences in tests and in practice. The Seller in no event accepts any liability, however, on the basis of such information for different results in the cultivated product. The Buyer itself must determine whether the goods are suitable for the intended growth and/or can be used in the local conditions.
12.2 In the information provided by the Seller, the term 'resistant' refers to the plant's ability to prevent or impede the development of a certain disease or certain forms of that disease; the term 'tolerant' refers to the plant's ability to endure a certain disease or harmful environmental factor, with limited harmful effects on growth and production; the term 'susceptible' refers to the plant's inability to impede or prevent the growth or development of a certain disease or harmful environmental factor.
Section 13. Force Majeure
13.1 Force majeure means circumstances that stand in the way of fulfilling the obligation and cannot be attributed to the Seller, if and in so far as these circumstances make performance impossible or unreasonably complicated, they include strikes, lock-outs or other official or unofficial strike action or civil commotion, riot, invasion, terrorist attack, or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; or fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster: or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; or a general lack of the necessary raw materials and other goods or services required to render the agreed performance, unforeseeable delays at sub-suppliers or other third parties on which the Seller is dependent.
13.2 The Seller will inform the Buyer as soon as possible if it is unable to deliver or to deliver in time due to an event of force majeure.
13.3 If the event of force majeure lasts longer than four months, both parties will be entitled to dissolve the agreement. In that case the Seller will not be required to pay any damages.
Section 14. Marketing material
14.1 Photographic and other marketing material supplied by the Seller may only be used by the Buyer as support and illustration material for goods purchased from the Seller. All marketing material shall remain the property of the Seller and shall be returned to the Seller by the Buyer at the Seller request. If the Buyer fails to comply with this request, the Seller shall charge the Buyer for the promotional material supplied to him.
Section 15. Sale; ban on multiplication; use of varietal name
15.1 The goods shall be supplied exclusively for the cultivation of amenity horticultural products. The Buyer shall be prohibited, however, from using the seeds received from the Seller for seed multiplication.
15.2 The goods delivered by the Seller may be sold by and delivered to a third party by the Buyer but only under the original variety name indicated by the Seller unless previously agreed in writing by the Seller.
Section 16. Intellectual property rights
16.1 The copyright, design right and all other intellectual property rights in any materials and other documents or items that the Seller prepare or supply to the Buyer in connection with the Goods will belong to us absolutely.
16.2 The Buyer may not use the materials, documents or other items detailed in clause 16.1 for any commercial purposes.
Section 17. Arbitration
17.1 Any dispute arising out of this agreement shall, if possible, be settled amicably and promptly by negotiation between the parties.
17.2 If not settled amicably, all disputes arising out of or in connection with this agreement shall be finally settled under Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules.
Section 18. Settlement of Disputes
18.1 In the event of a dispute the parties will, however, first try to reach a solution in consultation, or otherwise by means of mediation, before the parties submit the dispute to an arbitration tribunal or to the civil court.
18.2 Unless the parties have agreed on arbitration in consultation, any disputes will be settled by the civil court that is competent in first instance in the place where the Seller has its registered office, unless another court is competent pursuant to the applicable mandatory rules of the law chosen in Article 19.
18.3 The Seller will at all times have the right to summon the Buyer before the court that is competent by law or pursuant to the applicable international convention.
Section 19. Applicable Law
19.1 All agreements between the Seller and the Buyer are governed by the law of England.
19.2 If the Seller and the Buyer do not have their registered offices in the same country, the United Nations Convention on the International Sale of Goods (the Vienna Sales Convention) will also apply, in so far as it does not differ from these Terms and Conditions and in so far as it does not conflict with the rules of mandatory law of England.