1.1 These conditions (“the conditions”) shall apply to all contracts for the sale of goods by TAMAR NURSERIES LTD (“the Company”) to the exclusion of all other terms and conditions, including any terms or conditions which any buyer (“the Buyer”) may purport to apply under any purchase order, confirmation of order or similar document.
1.2 All orders for goods shall be deemed to be an offer by the Buyer to purchase goods pursuant to these conditions.
1.3 Acceptance of delivery of the goods shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.
1.4 Any variation to these conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company.
2.1 The price shall be the Company’s quoted price exclusive of VAT which will be due at the rate ruling on the date of the Company’s invoice.
2.2 Payment of the price and VAT shall be due within 30 days of the date of the invoice. Provided that no other payments are due from the Buyer to the Company the Buyer shall be entitled to deduct prompt payment discount of two and a half per cent of the price for payment made within 14 days of the Company’s invoice.
2.3 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of two and a half per cent per month and shall accrue at such a rate as well as before any judgment.
2.4 In the event that the Buyer shall cancel the order prior to delivery the Buyer shall pay fifty per cent of the price and VAT within seven days of the date of the Company’s invoice.
3.1 The Company warrants that the goods will at the time of delivery correspond to the description given by the Company. All other warranties, conditions or terms relating to fitness for purpose merchant ability or conditions of the goods and whether express or implied by statute or common law or otherwise are excluded.
3.2 The Company will not be liable (either as a result of negligence on its part or otherwise) for any damages, losses, costs or expenses incurred by the Buyer as a consequence of any seed, seedling, plant, shrub or tree supplied: either (1) exceeding or failing to achieve the spread or height normally expected of that species of cultivar. or (2) failing to grow due to natural conditions or soil conditions which would normally be expected to be suitable for it. or (3) failing to exhibit the flowers, fruit or foliage or other characteristics in accordance with the habit normally expected of that species or cultivar.
4.1 Delivery of goods should be made to the Buyer’s address on the date specified by the Company when the goods are to be delivered. The Buyer shall make all arrangements necessary to take delivery of the goods whenever they are intended for delivery.
4.2 The Company shall not be liable for any loss or damage whatever due to failure by the Company (whether as a result of negligence on its part or otherwise) to deliver the goods (or any of them) promptly or at all.
4.3 Notwithstanding that the Company may have delayed or failed to deliver the goods (or any of them) promptly the Buyer shall be bound to accept delivery and pay for the goods in full provided that the delivery shall be rendered at any time within 3 months of the date fixed for delivery.
5.1 The Buyer shall be deemed to have accepted the goods seven days after delivery to the Buyer.
5.2 After acceptance the Buyer shall not be entitled to reject goods which are not in accordance with the contract.
5.3 If the Buyer properly rejects any of the goods which are not in accordance with the contract, the Buyer shall nevertheless pay the full price for such goods unless the Buyer promptly gives notice of rejection to the Company and that at the Buyer’s cost, returns such goods to the Company before the date when payment for the price is due.
6.1 The goods shall be at the Buyer’s risk as from delivery.
6.2 In spite of the delivery having been made, property in the goods shall not pass from the Company until: 6.2.1 the Buyer shall have paid the price plus VAT in full: and 6.2.2 no other sums whatever shall be due from the Buyer to the Company.
6.3 Until property or goods passes to the Buyer in accordance with clause 6.2, the Buyer shall hold the goods and each of them on a fiduciary basis as bailee for the Company. The Buyer shall store and maintain the goods (at no cost to the Company), separately from all other goods in its possession, and marked in such a way that they are clearly identified as the Company’s property.
6.4 Notwithstanding that the goods (or any of them) remain the property of the Company the Buyer may sell or use the goods in the ordinary course of the Buyer’s business at full market value for the account of the Company. Any such sale or dealing shall be a sale or use of the Company’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings until property and the goods passes from the Company the entire proceeds of sale or otherwise of the goods shall be held in trust for the company and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Company’s money.
6.5 The Company shall be entitled to recover the price plus VAT not withstanding that property and any of the goods has not passed from the Company.
6.6 Until such time as the property in the goods passes from the Company the Buyer shall upon request deliver up such of the goods as have not ceased to be existence or re-sold to the Company. If the Buyer fails to do so the Company may enter upon any premises owned, occupied or controlled by the Buyer where the goods are situated and repossess the goods. On making such request the rights of the Buyer under clause 6.4 shall cease.
6.7 The Buyer shall not pledge or in any way charge by way of security for any indebted-ness any of the goods which are the property of the Company. Without prejudice to the other rights of the Company, if the Buyer does so all sums whatever owing by the Buyer to the Company shall forthwith become due and payable.
6.8 The Buyer shall insure and keep insured the goods to the full price against “all risks” to the reasonable satisfaction of the Company until the date that property and goods passes from the Company and shall whenever requested by the Company produce a copy of the policy of insurance. Without prejudice to the other rights of the Company, if the Buyer fails to do so all sums whatever owing by the Buyer to the Company shall forthwith become due and payable.
6.9 The Buyer shall promptly deliver the prescribed particulars of this contract to the registrar in accordance with the Companies Act 1985 Part Xll as amended. Without prejudice to the other rights of the company, if the Buyer fails to do so all the sums whatever owing by the Buyer to the Company shall forthwith become due and payable.
7.1 Where the Buyer rejects any goods, then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such goods or the failure by the Company to supply goods which conform to the contract of sale.
7.2 Where the Buyer accepts or has been deemed to have accepted any goods then the Company shall have no liability whatever to the Buyer in respect of those goods.
8.1 If the Buyer fails to make payment in accordance with this Contract of Sale or commits any other breach of Contract of Sale or if any distress or execution should be levied upon any of the Buyers goods, if the Buyer offers to make any arrangements creditors or commits an act of bankruptcy or if any partition of bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or is being a limited company if any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver administrator, administrative receiver or manager shall be appointed over the whole or part of the Buyers business or assets or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the goods shall become payable immediately. The Company may in its absolute discretion and without prejudice to any other rights which it may have.
8.2 Suspend all future deliveries of goods to the Buyer and/or terminate the contract without liability upon its part; and/or
8.3 Exercise any of its rights pursuant to clause 6.
9.1 The Company shall not be liable for any default due to any weather circumstances war,
strike, lock out, industrial action, fire, flood, drought, tempest or other event beyond
reasonable control of the Company.
9.2 The Company shall be under no liability whatever to the Buyer for any indirect loss
and/or expense (including loss of profit) suffered by the buyer arising out of breach by the
Company of this contract.
9.3 In the event of any breach of this contract by the Company the remedies of the Buyer shall
be limited to damages. Under no circumstances shall the liability of the Company exceed
the price of the goods.
10 This contract is subject to the law of England and Wales.