1.
Interpretation
1.1
In these Conditions:
“
Buyer” means the person whose order for the Goods is accepted by the Seller. “Goods” means the
Goods (including any placement of the Goods or any parts for them) which the Seller is to supply in
accordance with these Conditions. “Seller” means BHGS Limited. “Conditions” means the standard
terms and Conditions of sale set out in this document and (unless the context otherwise requires)
includes any special terms and Conditions agreed in Writing between the Buyer and the Seller.
“
Contract” means the Contract for the purchase and sale of the Goods. “Writing” includes telex, cable,
facsimile transmission and comparable means of communications.
1.2
Any 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.
1.3
The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.
Basis of the sale
2.1
The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written order of
the Buyer which is accepted by the Seller subject to these Conditions which shall govern the Contract to
the exclusion of any other terms and Conditions subject to which any such order is made or purported
to be made by the Buyer.
2.2
No variation to these Conditions shall be binding unless agreed in Writing between the authorised
representatives of the Buyer and the Seller.
2.3
The Seller’s employees or agents are not authorised to make any representations concerning the
Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges
that it does not rely on and waives any claim for breach of any such representations which are not so
confirmed.
2.4
Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its
employees or agents as to the storage application or use of the Goods which is not confirmed in Writing
by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall
not be liable for any such advice or recommendation which is not so confirmed.
2.5 2.5.1
all seed sold by the Supplier complies with legal standards (including those applicable by virtue
of EEC directives or regulations) in force at the time of delivery.
2.5.2
all written material supplied by or on behalf of the Seller (including without prejudice to the
generality of the foregoing the Sellers and its suppliers catalogues) concerning varieties, varietal
characteristics, periods of maturity or fitness or performance of any seed is given for general guidance
only. The Buyer is responsible for:-
(
a) the use, mixing and application of any Goods.
(
b) satisfying himself (other than by reliance on the Seller) that any Goods (including seeds) are of a
variety and performance satisfactory for his requirements.
2.5.3
the Seller take all reasonable precautions to ensure that all seeds are free of genetic and physical
contamination but do not accept responsibility for such contamination if it arises from factors outside
their control.
2.5.4
the Seller give no warranty that any seeds are free from loose smut.
2.6
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 Seller shall be subject to
correction without any liability on the part of the Seller.
3.
Orders and specifications
3.1
No order admitted by the Buyer shall be deemed to be accepted by the Seller unless and until
confirmed in Writing by the Seller’s authorised representative.
3.2
The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order
(
including any applicable specification) submitted by the Buyer and for giving the Seller any necessary
information relating to the Goods within a sufficient time to enable the Seller to perform the Contract
in accordance with its terms.
3.3
The quantity, quality and description of the Goods shall be those set out in the Buyer’s order (if
accepted by the Seller).
3.4
The Seller reserves the right to make any changes in the specification of the Goods which are
required to conform to any applicable safety or other statutory requirements (including EEC Regulations
or Directives).
3.5
No order which has been accepted by the Seller may be cancelled by the Buyer except with the
agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against
all loss (including loss of profit), costs (including the cost of all labour and materials used), damages,
charges and expenses incurred by the Seller as a result of cancellation.
4.
Price of the Goods
4.1
The price of the Goods shall be the price specified in the Seller’s acceptance of the Buyers order.
4.2
The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase
the price of Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the
control of the Seller (such as without limitation any foreign fluctuation, currency regulation, alteration
of duties, significant increase in the costs of labour, materials or other costs of manufacture) any change
in delivery dates, quantities or specifications for the Goods which is requested by the Buyer or any delay
caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information
or instructions.
4.3
The price is exclusive of any applicable Value Added Tax which the Buyer shall be additionally liable
to pay the Seller.
4.4
The cost of pallets and returnable containers will be charged to the Buyer in addition to the price
of Goods but full credit will be given to the Buyer provided they are returned undamaged to the Seller
before the due payment date.
5.
Terms of payment
5.1
Subject to any special terms agreed in Writing between the Buyer and the Seller the Seller shall be
entitled to invoice the Buyer for the price of the Goods or at any time after delivery of the Goods unless
the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods in
which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has
notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered
delivery of the Goods.
5.2
The Buyer shall pay the price of the Goods within Twenty-eight days of the date of the Seller’s invoice
notwithstanding that delivery may not have taken place and the property in the Goods has not passed to
the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment
will be issued only upon request.
5.3
If the Buyer fails to make any payment on the due date then without prejudice to any other right or
remedy available to the Seller the Seller shall be entitled to:-
5.3.1
cancel the Contract or suspend any further deliveries to the Buyer
5.3.2
appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under
nay other Contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any
purported appropriation by the Buyer) and
5.3.3
charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate
of Three percent per annum above Bank 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.
Delivery
6.1
Any rates quoted for delivery of the Goods are approximate only and the Seller shall not be liable
for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence
unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of
the quoted delivery date upon giving reasonable notice to the Buyer.
6.2
Where delivery of the Goods is to be made by the Seller in bulk the Seller reserves the right to deliver
up to Ten percent more or Ten percent less than the quantity ordered without any adjustment in the price
and the quantity so delivered shall be deemed to be the quantity ordered.
6.3
Where the Goods are to be delivered in instalments each delivery shall constitute a separate
Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these
Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer
to treat the Contract as a whole as repudiated.
6.4
If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s
reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer the Seller’s liability
shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar
Goods to replace those not delivered over the price of Goods.
6.5
If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions
at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable
control or by reason of the Seller’s fault) then without prejudice to any other right or remedy available
to the Seller the Seller may:-
6.5.1
store the Goods until actual delivery and charge the Buyer for the reasonable costs (including) of
storage of
6.5.2
sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and
selling expenses) account to the Buyer for the excess over the price under the Contract or charge the
Buyer for any shortfall below the price under the Contract.
7.
Risk and property
7.1
Risk of damage or loss of the Goods shall pass to the Buyer at the time of delivery or if the Buyer
wrongfully fails to take delivery of the Goods the time when the Seller has tendered delivery of the
Goods.
7.2
Notwithstanding delivery and the passing of risk in the Goods or any other provision of these
Conditions the property in the Goods shall not pass to the Buyer until the Seller has received in cash or
cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the
Seller to the Buyer for which payment is then due.
7.3
Until such time as the property in the Goods passes to the Buyer the Buyer shall hold the Goods as
the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and
third parties and property stored protected and insured and identified as the Seller’s property. Until that
time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business but shall
account to the Seller for the proceeds of sale or otherwise of the Goods whether tangible or intangible
including insurance proceeds and shall keep all such proceeds separate from any moneys or property of
the Buyer and third parties and in the case of tangible proceeds property stored protected and insured.
7.4
Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still
in existence and have not been re-sold) the Seller shall be entitled at any time to require the Buyer to
deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of
the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5
The Buyer 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 Seller but if the Buyer does so all moneys owing
by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith
become due and payable.
8.
Warranties and liability
8.1
Subject as expressly provided in these Conditions and except where the Goods are sold to a person
dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties,
Conditions or other terms implied by statute or common law are excluded to the fullest extent permitted
by law.
8.2
Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions
(
Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these
Conditions.
8.3
Any claim by the Buyer which is based on any defect in the quality or Condition of the Goods shall
(
whether or not delivery is refused by the Buyer) be notified to the Seller within Twenty Four Hours 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. If delivery is not refused and the Buyer does not notify
the Seller accordingly the Buyer shall not be entitled to reject the Goods and the Seller shall have no
liability for such defect or failure and the Buyer shall be bound to pay the price as if the Goods had been
delivered in accordance with the Contract.
8.4
Where any valid claim in respect of any of the Goods which is based on any defect in the quality or
Condition of the Goods or their failure to meet specification is notified to the Seller in accordance with
these Conditions the Seller shall be entitled to replace the Goods (or the part in question) free of charge
or at the Seller’s sole discretion refund to the Buyer the price of the Goods (or a proportionate part of
the price) but the Seller shall have no further liability to the Buyer whether arising directly or indirectly
from any such defect or failure.
8.5
Except in respect of death or personal injury caused by the Seller’s negligence the Seller shall not
be liable to the Buyer by reason of any representation or any implied warranty Condition or other term
or any duty at common law or under the express terms of the Contract for any consequential loss or
damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential
compensation whatsoever (and whether caused by the negligence of the Seller or its employees or
agents or otherwise) which arise out of or in conjunction with the supply of the Goods or their use or
resale by the Buyer except as expressly provided in these Conditions.
8.6
The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of
any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods
if the delay or failure was due in any cause beyond the Seller’s reasonable control. Without prejudice to
the generality of the foregoing the following shall be regarded as causes beyond the Seller’s reasonable
control:-
8.6.1
act of God, explosion, flood, tempest, fire or accident
8.6.2
war or threat of war, sabotage, insurrection, civil disturbance or requisition
8.6.3
acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any
governmental, parliamentary or local authority
8.6.4
import or export regulations or embargos
8.6.5
strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the
Seller or of a third party)
8.6.6
difficulties in obtaining raw materials, labour, fuel, parts or machinery
8.6.7
power failure or breakdown in machinery
9.
Insolvency of Buyer
9.1
This Clause applies if:-
9.1.1
the Buyer makes any voluntary arrangement with its creditors or becomes subject to an
administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into
liquidation (otherwise than for the purposes of amalgamation or reconstruction) or
9.1.2
an encumbrancer takes possession or a receiver is appointed of any of the property or assets of
the Buyer or
9.1.3
the Buyer ceases or threatens to cease to carry on business or
9.1.4
the Seller reasonably apprehends that any of the events mentioned above is about to occur in
relation to the Buyer and notifies the Buyer accordingly
9.2
If this Clause applies then without prejudice to any other right or remedy available to the Seller
the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract
without any liability to the Buyer and if the Goods have been delivered but not paid for the price shall
become immediately due and payable notwithstanding any previous agreement to the contrary.
10.
General
10.1
Any notice required or permitted to be given by either party to the other under these Conditions
shall be in Writing addressed to the other party at its registered office or principal place of business or
such other address as may at the relevant time have been notified pursuant to this provision to the party
giving the notice.
10.2
No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver
of any subsequent breach of the same or any other provision.
10.3
If any provision of these Conditions is held by any 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 on question shall not be affected thereby.
10.4
Any dispute arising under or in connection with these Conditions or the Sale of the Goods shall
be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on
the application of either party by the President for the time being of the Royal institute of Chartered
Surveyors.
10.5
The Contract shall be governed by the laws of England.
