Terms and Conditions of Sale
1. The following expressions in these Conditions shall mean respectively:-
“The Company” Joe’s GardenCo Ltd whose registered office is Temple Chambers, 16a Belvoir Rd, Coalville, Leicestershire LE67 3QE.
“Goods” materials products and/or services contracted for and/or supplied by the company from time to time.
“The Purchaser” the person company or body buying or offering to purchase Goods.
2. The following terms are the Company’s standard terms and conditions of sale. The Company contracts for the supply of Goods only on these terms. The Purchaser accepts that these terms shall govern relations between itself and the Company to the exclusion of any other terms including conditions, warranties and representations written or oral, express or implied even if contained in any of the Purchaser’s documents which purport to provide that the Purchaser’s own terms shall prevail.
QUOTATIONS AND ORDERS
3. Quotations are tendered without engagement and are subject to confirmation upon receipt of order. Quotations remain valued for a period of 30 days.
4. All verbal orders must be confirmed in writing within 10 days of the original instructions unless such requirement is waived by the Company in writing or by performance of the order.
5. Contracts, once accepted, cannot be varied or cancelled except with the written consent of both parties and then only on terms which fully indemnify the Company against any loss caused directly or indirectly by the variation or cancellation. The Company’s consent may only be given by a director thereof.
6. Representations concerning the Goods made by the Company’s employees and agents are not valid unless confirmed by the Company in writing. Any representation contained in any sales literature, catalogue, brochure, price list or advertisement shall not be construed to enlarge vary or override these Conditions. The Purchaser acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
7. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
8. The Company shall not be liable for any advise or recommendation given by it or its employees or agents to the Purchaser or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company. The same is followed or acted upon entirely at the Purchaser’s own risk.
9. The Company reserves the right to modify any of the Goods without prior notice provided that such modification shall not affect the form, fit, function or maintenance of the relevant Goods.
10. Goods offered “ex stock” are subject to prior sales.
11. All prices are ex works unless otherwise agreed and (unless expressly so stated) exclude VAT or other sales tax which the Purchaser shall be additionally liable to pay to the Company.
12. The Company reserves the right to amend the price of a contact between the date of acceptance of an order and final delivery of Goods if the Company considers such a course is necessary due to any factor beyond the control of the Company (such as but without limitation any foreign exchange, fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other cost of manufacture) or any change in delivery dates, qualities, quantities or specifications of the Goods which is requested by the Purchaser or any failure of the Purchaser to give the Company adequate information or instructions.
13. Delivery of the Goods shall be made by the Purchaser collecting the Goods at the Company’s premises at any time after the Company has notified the Purchaser that the Goods are ready for collection or, if some other place of delivery is agreed by the Company, by the Company delivering the Goods to that place.
14. Any times stated for delivery are estimates only and time shall not be of the essence of the contract save where the Company specifically so agrees in writing under the hand of a director. If the Company is for any reason whatsoever not ready to make delivery within
the time specified the Company shall not be liable for any loss or damage whatsoever sustained by the Purchaser.
15. The Goods may be delivered by the Company before the due delivery date upon giving reasonable notice to the Purchaser. The Company reserves the right to deliver up to Five per cent more or less than the quantity ordered without any adjustment in the price and the quantity so delivered shall be deemed to be the quantity ordered.
16. When it is necessary for the Purchaser to supply any containers, packaging, labels, identifications or particulars in respect of the Goods or do any other act to enable the Company to effect delivery of the Goods the same must be furnished or performed within such time as is reasonably necessary to enable the Company to deliver the Goods in accordance with the Contract.
17. Where the Goods are to be delivered by instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Purchaser in respect of any one or more instalments shall not entitle the Purchaser to treat the contact as a whole as repudiated.
18. If the Purchaser fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery the Company may (without prejudice to any other right or remedy available to the Company):-
18.1 Store the Goods until actual, delivery and charge the Purchaser for the reasonable costs (including insurance) of storage; or
18.2 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Purchaser for the excess over the price under the contract or charge the Purchaser for any shortfall below the price under the contact.
19. The Company may request the Purchaser to deposit with the Company a sum equivalent to 50% of the contract price with or in advance of order. If such sum is not received in due time the Company shall cease to be under a liability to supply the Goods in accordance with the Contract. Any deposit received shall be placed in a stockholder account in the name of the Company and any interest earned thereon shall (subject to tax) belong and be payable to the Purchaser.
20. Subject to any special terms agreed in writing between the Company and the Purchaser, the Company may invoice the Purchaser for the price of the Goods on or at any time after the Goods have been made available for collection or delivered to the Purchaser or to any third party on its behalf. Where delivery of the Goods is extended over a period of more than 7 days, the Company may request progress payments in accordance with the amount of work done and/or Goods delivered and the Purchaser agrees to make such payments on demand.
21. The Company may invoice for partial deliveries of Goods if such partial delivery is deemed by the Company to be necessary or expedient.
22. Credit terms are only granted subject to satisfactory trade references and the acceptance of each account by the insurance company underwriting the Company’s trade debtors. Unless otherwise stated by the Company either in its quotation or correspondence where credit terms have been agreed terms of payment are strictly net cash payable during the month following despatch of all or any Goods pursuant to a contract. Payment on the due date of all sums due by the Purchaser to the Company under any contract shall be of the essence of the contract.
23. If the Purchaser does not maintain an account with the Company the Purchaser must pay with the order or otherwise before delivery the price of Goods and, where appropriate, the cost of carriage freight and insurance.
24. Where the Purchaser:-
24.1 is overdue with any payment owed to the Company; or
24.2 shall have failed to take delivery of the Goods; or
24.3 makes default in or commits any breach of its other obligations to the Company hereunder; or
24.4 becomes bankrupt insolvent or has a petition presented in respect of an administration order or winding-up order in respect of it or has a receiver appointed of its assets or execution or distress levied upon its assets or under the national law of its own country suffers the equivalent of any of them, or takes any step with a view to entering into a voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986); or
24.5 ceases or threatens to cease to trade, or if the Company shall reasonably doubt the solvency of the Purchaser; then (without prejudice to any other right or remedy available to it) the Company reserves the right to stop manufacture, delivery or performance under any contract and performance by the Company will only recommence upon payment in full by the Purchaser of all outstanding amounts due on due completion of the Purchaser’s obligations hereunder. If the Company exercises its said rights any Goods to be delivered to a Purchaser following default shall be paid for on pro forma invoice before or at the time of despatch of the Goods and payment will become due on receipt of such pro forma invoice. The Company shall not be liable for loss of any nature suffered by a Purchaser as a result of the application of this condition nor shall it be a reason for the cancellation by the Purchaser of this or any other contract which shall at the Company’s option remain in full force and effect. The Purchaser shall be liable to pay the costs and expenses of the Company incurred as a direct result of the occurrence of any event specified in sub-clauses 24.1 to 24.5 above.
25. The Company may charge interest at a rate of 5 per cent per annum above the base rate from time to time of the Company’s bankers on any overdue payments or in respect of any delivery not taken by the Purchaser.
26. Notwithstanding that credit may have been given to the Purchaser under the contract, the Company shall in its discretion be entitled to retain possession of the Goods or any of them until payment has been received from the Purchaser in full. Without prejudice to any other right which the Company may have, the Company shall be entitled to exercise a general lien or right of retention on all Goods in the Company’s possession which are or are intended to become the Purchaser’s property in regard to all monies (including all debts damages and/or other sums) due to the Company under any contract whatsoever between the Company and the Purchaser. Pursuant to such lien or right the Company shall be entitled without notice to the Purchaser to sell all or any such Goods in any manner and to keep the proceeds in diminution of such monies and of all costs and expenses incurred in effecting such sale.
27. Payment shall be made at a nominated branch of the Company’s bankers in the U.K. in sterling or at such other place and in such other currency as the Company may direct.
PROPERTY AND RISK IN GOODS
28. 28.1 Risk in the Goods shall pass to the Purchaser immediately on delivery to the Purchaser or into custody on the Purchaser’s behalf whichever is the sooner.
28.2 Notwithstanding delivery, the Goods shall remain the absolute property of the Company (which reserves the right to dispose of them) until the Company has received the full price for the Goods and the full price for any other Goods for which payment is due from the Purchaser on or before payment of the price of the Goods.
28.3 Until property in the Goods passes to the Purchaser the relationship between the Company and the Purchaser shall be that of bailor and bailee and the Purchaser shall store the Goods in such a way that they are readily identifiable as the property of the Company.
28.4 If before the property in the Goods passes to the Purchaser:-
28.4.1 the Goods are altered or other goods become attached to the Goods or if any part of the Goods is replaced such other goods or replacement parts shall acceded to and form part of the Goods and such attachment and placement shall not affect the Company’s title as absolute owner of the Goods;
28.4.2 the Goods are sold by the Purchaser, such sales or sales shall be deemed to be on behalf of the Company, but without imposing any liability on the Company to the sub-purchaser, and the Purchaser shall hold such part of the proceeds of sale or rights arising therefrom against the sub-purchaser as represents the sum due to the Company for such Goods as trustee for the Company and the Purchaser shall keep such part of the proceeds of such sale separate from its other monies and account to the Company accordingly.
28.5 If payment of the price of the Goods or any part of it is overdue or if it appears to the Company that the Purchaser is or may be insolvent, the Company may require the Purchaser to deliver up the Goods to the Company and, if the Purchaser fails to do so forthwith, the Purchaser shall permit the Company to recover and resell the Goods and by its servants or agents enter upon the Purchaser’s premises (or such other the premises where the Goods are stored or situated) for that purpose.
28.6 The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company but if the Purchaser does so or purports to do so, all monies owing by the Purchaser to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
DAMAGE IN TRANSIT
29. The Company will only accept liability for:-
29.1 damage to the Goods caused in transit if the same is externally visible and is notified to the Company and the carrier (if not delivered by the Company) within three days of receipt of Goods by the Purchaser;
29.2 damage to the Goods caused in transit which is not externally visible or any actual or apparent discrepancy between any delivery note and items delivered, if the same is notified to the Company and the carrier (if not delivered by the Company) within three days of receipt of the Goods by the Purchaser;
29.3 non arrival, if the same is notified to the Company within a reasonable period from the day that the Company informed the Purchaser that the Goods or the relevant consignment thereof were due to arrive.
Where the Company accepts responsibility under this clause, it may, at its sole option, repair or replace (as the case may be) those of the Goods which are proved to the Company’s satisfaction to have been lost or damaged prior to delivery to the Purchaser.
30. The Company shall not be under any obligation to replace (although it may do so at its option) Goods destroyed damaged sunk in transit or detained by the Crowns’ enemies or (in the case where Goods are obtained by the Company from works abroad) for the total or partial suspension of deliveries which may be occasioned by any circumstances attributable to war revolution or civil unrest, nor shall the Company be responsible for any damaged caused to the Purchaser by the non-delivery of such Goods.
31. The Company shall be relieved of its obligations under any contract to the extent to which the fulfilment of such obligations is prevented, frustrated or impeded as a consequence wholly or partially by any cause beyond the Company’s control including Act of God, war, invasion, act of foreign enemy, hostilities (whether war has been declared or not) civil war, rebellion, revolution, insurrection or military or usurped power or any such event or by any statute rules regulations orders or requisitions issued by any government, council or duly constituted authority or from strikes, lock outs or breakdown of plant.
32. Packing cases where required are charged extra, but are credited in full when returned carriage paid to the Company’s works in good condition. Small packages are dispatched by post carrier or train at consignees expense.
33. The Goods shall correspond in all material aspects with the prototype produced by the Company from plans, specifications or general descriptions produced by the Buyer.
If any Goods supplied by the Company do not so conform, subject to any tolerances stated by the company.
the Company shall free of charge repair or replace the defective Goods and shall deliver the repaired or replacement Goods to the original point of delivery (but otherwise in accordance with and subject to these conditions of sale).
the Company may at its absolute discretion either refund or give credit for the price of the defective portion of the Goods.
34. The Company accepts no responsibility where materials supplied by the Purchaser or through its offices or from sources dictated by the Purchaser shall be defective or in any unsatisfactory condition and the Purchaser shall indemnify the Company against any loss suffered by the Company as a result of such defects or condition.
35. The Purchaser shall forthwith indemnify the Company on a full indemnity basis against all or any liability cost or expense of whatsoever nature incurred by the Company due to an alleged or actual infringement of any intellectual property right or otherwise arising out of Goods manufactured or services provided by the Company to the Purchaser’s order and in accordance with any samples, designs, specifications and/or instructions given by the Purchaser to the Company.
36. The Company shall be entitled to sub-contract all or any of its obligations hereunder.
37. All descriptive and forward specifications drawings and other particulars submitted with the Company’s tender are approximate only. The descriptions and illustrations contained in the Company’s catalogues price list and other documentation are intended merely to present a general idea of the Goods described therein and none of these shall form part of a contract. Drawings and all details thereon are private and confidential to the Company and all intellectual property in the Goods and the drawings vest in and belong to the Company unless the Company and the Purchaser otherwise agree prior to the date of contract and subject at all times to the overriding rights in any such intellectual property vested in any third party. Drawings are supplied under the express condition that they are not reproduced nor communicated to any other person in whole or part nor may the information contained therein be used directly or indirectly in any way detrimental to the interests of the Company without the written consent of the Company.
38. Where the Company or its authorised agents are to carry out work or operations upon the Purchaser’s premises or other premises at the direction of the Purchaser, the Purchaser shall ensure that such premises and any machinery involved and all other arrangements affecting the work or operations are ready by the time scheduled for the Company to enter upon the premises to commence such work or operations. The Purchaser undertakes that there will be no delay to the works or operations or the state and condition thereof for which the Company is not responsible.
39. Any condition hereof that is hereafter found invalid or unenforceable in whole or in part for any reason shall whenever allowed by the context be deemed replaced by such valid and enforceable clause covenant or provision (if any) whose contents are as close as permissible to those of the invalid or unenforceable clause covenant or provision. If such replacement is not possible, the offending condition or part thereof shall be severed herefrom and such severance shall not otherwise affect or be deemed to affect the remainder (if any) of such condition or otherwise of any remaining clauses of these terms and conditions of sale.
40. Any waiver, forbearance or failure by the Company in insisting in any one or more incidences upon the performance of these conditions shall not be construed as a waiver ore relinquishment of the Company’s right to future performance of such condition and the Purchaser’s obligations in respect of such future performance shall continue in full force and effect.
NO SET OFF
41. Any payment to be made by the Purchaser to the Company shall be made in full without any set off or deduction therefrom or any counterclaim or claim to a lien thereover howsoever the same may arise.
LAW OF CONTRACT
42. These conditions and any contract hereunder shall be governed by and construed under English law and the Company and the Purchaser submit to the exclusive jurisdiction of the English Courts in respect of any dispute claim or matter arising under such a contract or in regard to these conditions.
43. Any notice or document required or permitted to be given to or served on one party hereto by another party shall be in writing and shall be given or served by delivering or despatching the same by one of the methods set out below to its registered office if a company and (if not) to the party’s last known address. Provided that where necessary the despatch of such notice or document has been properly pre-paid a notice or document so given or served shall conclusively be deemed to have been received at the time set out alongside the respective manner of service namely:-
43.1 by hand on the recipient or an authorised officer thereof - at the time of such service:
43.2 by first class post - at the commencement of the first business day next commencing more than 24 hours after despatch;
43.3 by telex telecopier facsimile transmission or other electronic means of written communication - at the commencement of the first business day next commencing more than 48 hours after despatch;
43.4 abroad by first class airmail post - at the commencement of the first business day next commencing more than 72 hours after despatch.