1. In these conditions the following terms shall have the following meanings:
“Company” means Boningale Ltd (“the Company”)
“Customer” means the non-domestic consumer customer of the Company
“Contract” means any contract for the sale of Goods and/or services by the Company to the Customer
“Goods” means the Goods and or Services that the Customer agrees to buy from the Company
2. Quotations by the Company shall be open for acceptance within 30 days of the date of the quotation and shall in any event be subject to availability.
EXISTENCE OF CONTRACT
3. No Contract shall come into existence until the customer’s order (In writing) is accepted by the Company’s written Order Acknowledgement.
3.1 These conditions shall be incorporated in the Contract to the exclusion of any terms or conditions stipulated or referred to by the customer. These are the only terms and conditions on which the Company trades and no other terms or conditions, whether written or oral, are capable of incorporation herein.
4. The prices for the goods are ex-nursery and exclude packing, insurance and carriage, VAT, and any other taxes or duties.
4.1 Prices invoiced are calculated in respect of the quantity of goods actually delivered irrespective of the quantity in respect of which any quotation was issued.
4.2 The Company shall have the right [in respect of any uncompleted portion of the Contract] to adjust its prices for any increase in the price of any materials, labour, transport, changes in work or delivery schedules or quantities or any other costs of any kind arising for any reason after the date of the Contract.
4.3 Small orders or orders with a total order value of less than £250.00 will be subject to a minimum order surcharge of no less than £30.00.
4.4 The Company has an absolute discretion to make a delivery charge for any goods ordered.
5. All invoices are payable without discount or set-off of any kind in the quoted currency within 30 days of the invoice month end and in no circumstances shall the customer be entitled to make any deduction or withhold payment for any reason at all, unless otherwise agreed in writing.
5.1 If the customer fails to pay the invoice price by the due date the customer shall not be allowed any discount given in that invoice or in any other way agreed and shall pay interest on any overdue amount from the date of which payment was due to that on which it is made (whether before or after judgement) on a daily basis at a rate of % p.a. over the base rate from time to time quoted by the HSBC Bank plc and reimburse to the Company all costs and expenses (including legal costs) incurred in the collection of any overdue amount.
6. For the purpose of section 12 of the Sale of Goods Act 1979 the Company shall transfer only such title or rights in respect of the goods as the Company has and if the goods are purchased from a third party shall transfer only such title or rights as that party had and has transferred to the Company.
6.1 Notwithstanding the earlier passing of risk, title in the goods shall remain with the Company and shall not pass to the customer until the amount due under the invoice for them (including interest and costs) has been paid in full.
6.2 The Company may maintain an action for the price of any goods notwithstanding that title in them has not passed to the customer.
RISK, DELIVERY AND PERFORMANCE
7. The Contract shall be satisfied when the Company makes the goods available to the Customer or any agent of the customer or any carrier (who shall be the customer’s agent whoever pays its charges) at the Customer’s premises or other delivery point agreed by the Company.
7.1 Risk in the goods passes when they are put aside for the customer.
7.2 Any dates quoted by the Company for the delivery of the goods are approximate only and shall not form part of the Contract and the customer acknowledges that in the performance expected of the Company no regard has been paid to any quoted delivery dates, unless otherwise agreed in writing.
7.3 The Customer shall be responsible for providing unobstructed access to a clear and safe site for the purpose of off-loading.
7.4 Where appropriate equipment and/or its operator are unavailable the Company shall be under no obligation to attempt to off-load.
7.5 The Company shall not be liable for any penalty, loss, injury, damage or expense arising from any delay or failure in delivery or performance from any cause at all nor shall any such delay or failure entitle the customer to refuse to accept any delivery or performance of or repudiate the Contract.
7.6 Where the Company delivers goods to the Customer in returnable containers, the containers must be empty when made available for collection. The Company has an absolute discretion to either not collect containers which contain rubbish or waste material, including packaging and pots, or to collect and charge the Customer for disposal of the contents, at a minimum rate of £10.00 per pallet.
8. Any claim for non-delivery of any goods shall be notified verbally by the Customer to the Company within 1 working day of the date of delivery and subsequently confirmed in writing within 5 working days thereafter.
8.1 Any claim that any goods have been delivered damaged, are not of the correct quantity or do not comply with their description shall be notified verbally by the Customer to the Company within 1 working day of the date of delivery and subsequently confirmed in writing within 5 working days thereafter.
8.2 Any alleged defect shall be notified by the Customer to the Company verbally within 1 working day of the delivery of the goods or in the case of any defect which is not reasonably apparent on inspection verbally within 2 working days of the date of delivery and subsequently confirmed in writing within 5 working days thereafter.
SCOPE OF CONTRACT
9. Unless agreed otherwise in writing the Company shall under no circumstances have any liability of whatever kind for:
9.1 Any defects resulting from weather, accident, failure to tend, improper use by the customer or use by the customer except in accordance with the instructions or advice of the Company or the manufacturer of the goods, or neglect or from any instructions or materials provided by the customer;
9.2 The suitability of any goods for any particular purpose or use under specific conditions, whether or not the purpose or conditions were known or communicated to the Company;
9.3 Any substitution by the Company of any materials or goods not forming part of any specification of the goods agreed in writing by the Company;
9.4 Any descriptions, illustrations, specifications, figures as to performance, drawings and particulars of weights and dimensions submitted by the Company contained in the Company’s catalogues, price lists or elsewhere since they are merely intended to represent a general idea of the goods and not to form part of the Contract or be treated as representations;
9.5 Any technical information, recommendations, statements or advice furnished by the Company, its servants or agents not given in writing in response to a specific written request from the customer before the Contract is made: or
9.6 Any variations in the quantities or dimensions of any goods or changes of their specifications or substitution of any type or species, if the variation or substitution does not materially impact the characteristics of the goods, and the substituted materials or components are of a quality equal or superior to those originally specified.
9.7 Where the Customer in the exercise of its discretion to withhold or delay indefinitely the delivery of any goods the Company incurs additional costs for storage and/or husbandry the Company may so charge the Customer.
EXTENT OF LIABILITY
10. The Company shall have no liability to the customer for any loss or damage of any nature arising from any breach of any express or implied warranty or condition of the Contract or any negligence, breach of statutory or other duty on the part of the Company or in any other way out of or in connection with the performance or purported performance of or failure to perform the Contract except:
• for death or personal injury resulting from the Company’s negligence
• as expressly stated in these conditions.
11. The Company may sub-contract the performance of this Contract in whole or in part.
11.1 The Company may at its discretion suspend or terminate the supply of any goods if the customer fails to make any payment when and as due or otherwise defaults in any of its obligations under the Contract or any other agreement with the Company or becomes insolvent, has an administrative receiver appointed of its business or is compulsorily or voluntarily wound up or the Company bona fide believes that any of those events may occur, and in case of termination may forfeit any deposit paid.
11.2 If the goods are grown in accordance with any design or specification provided or made by the customer the customer shall compensate the Company in full on demand for all claims, expenses and liabilities of any nature in connection with them, including any claim, whether actual or alleged, that the design or specification infringes the rights of any third party or falls within the ambit of the Plant Varieties and Seeds Act 1964 as may be amended from time to time.
11.3 Except for any which is expressly agreed to be included in the goods all tools, patterns, materials, drawings, specifications and other data provided by the Company shall remain its property and all technical information, patentable or unpatentab1e, copyright and registered designs arising from the execution of any orders shall become the property of the Company.
12. Orders for goods which have to be grown or acquired especially for the customer, or which put aside especially for the Customer, may in the Company’s absolute discretion be charged in full unless written notice of cancellation is received no later than the date on which the Company puts aside the goods for the customer or the latest date on which the Company must place an order on a third party to fulfil the customer’s delivery date requirements, providing that such steps have not been taken at the date of that notice.
12.1 Orders for stock items may be cancelled by written notice at any time before the goods are allocated to the Contract but if a cancellation notice is received after the goods have been allocated to the Contract then a charge of 50% of order value will payable by the customer.
13. The Company shall not be liable for any act or omission arising which shall render performance of the contract impossible or shall in any way have the effect of frustrating the common cause where such an act or omission is beyond the control of either the Company or the Customer or was not reasonably foreseeable by either one or both of them. Such act or omission shall have the effect of automatically terminating the contract, save where the Customer has ordered stock seasonal goods:
13.1 Which unless expressly otherwise agreed in writing by both the Company and the Customer, shall be accepted by the Company as being expressly required for delivery during the relevant season.
LAW AND JURISDICTION
14. This contract shall be interpreted in accordance with the laws of England and Wales and the customer consents to the exclusive jurisdiction of the High Court of England and Wales in all matters regarding it except to the extent that the Company invokes the jurisdiction of the courts of any other country pursuant to the Brussels Convention, or alternatively elects to have any matter referred to an arbitrator in which case failing agreement between the Company and the Customer on the appointment of an arbitrator either one of them may apply to the Director General for the time being of The Horticultural Trades Association who shall make such an appointment and the decision of the arbitrator shall bind the parties to the same extent as an Order of the Court.
15. Service of Notices.
Any notice given under this Contract shall be in writing and may be served personally,
By registered or recorded delivery mail, or by electronic transmission,
A notice shall be deemed to have been served,
If it was served in person, at the time of service,
If it was served by registered or recorded post, the day after posting,
If it was served by electronic transmission, at the time of transmission.