1.1 In these Conditions the following terms shall have the following meanings:
|“Customer”||the person who accepts a quotation given by the Supplier for the supply of the Goods and/or Services or whose order for the Goods and/or Services is accepted by the Supplier|
|“Conditions”||the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in Writing between the Customer and the Supplier. Seed potatoes are sold subject to the terms referred to in clause 3.2 of these Terms and Conditions.|
|“Contract”||the contract for the purchase and sale of the Goods and/or the Services|
|“Farm Saved Seed”||seed planted on a farmer’s own holding using material harvested from his own holding|
|“Goods”||the goods (including any instalment of the goods or any part of them) described in the quotation given by the Supplier to the Customer or the order from the Customer accepted by the Supplier, which the Supplier is to supply in accordance with these Conditions.|
|“Output Products”||has the meaning given to it at clause 7.5.|
|“Protected Variety”||a variety granted plant breeders’ rights under the Plant Varieties Act 1997 or Regulation (EC) No 2100/94.|
|“Quantity”||the quantity stated to be despatched by the Supplier save in respect of “as grown seed” sold by vehicle or container load to an agreed variation of plus or minus 10% by weight.|
|“Supplier”||Limagrain UK Limited, a company registered in England with company number 1305690.|
|“Writing”||includes fax transmission, electronic mail (e-mail) and comparable means of communication.|
Any reference in these Conditions to any provision of a statute or statutory instrument 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.
1.4 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
2.1 The Supplier shall sell and the Customer shall purchase the Goods and/or Services in accordance with any written quotation or oral quotation of the Supplier which is accepted by the Customer or any written order or oral order of the Customer which is accepted by the Supplier in writing, subject in every case to these Conditions which shall, subject to any variation in accordance with condition 2.2, govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Customer and the Supplier.
2.3 The Supplier’s employees or agents are not authorised to make any representations concerning the Goods and/or Services unless confirmed by the Supplier in Writing. In entering into the Contract the Customer acknowledges that it does not rely on and waives any claim for breach of any representations which are not so confirmed.
2.4 Any advice or recommendation given by the Supplier or its employees or agents to the Customer or its employees or agents with regard to the storage, application or use of the Goods and/or the output of the Services which is not confirmed in Writing by the Supplier is followed or acted upon entirely at the Customer’s own risk and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 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 Supplier shall be subject to correction without any liability on the part of the Supplier.
2.6 The Contract shall be formed upon the Customer’s acceptance of any written quotation or verbal quotation of the Supplier, or any written order or verbal order of the Customer which is accepted by the Supplier in writing.
3.1 Where the Goods are seeds sold by the Supplier that are certified or standard seeds the Goods shall comply at the time of delivery with the UK Seeds Regulations and the minimum standards of applicable EU Seeds Regulations in force at the time of supply unless otherwise stated.
3.2 All seed potatoes sold by the Supplier are unless otherwise stated sold subject to the British Potato Trade Association Terms and Conditions of Sale For Seed Potatoes (English version) in force at the time of sale (a copy of which terms can be obtained from the Supplier on request).
4.1 All contracts for the sale of Goods are conditional upon goods of the same or an equivalent description to those ordered by the Customer being available to the Supplier for sale to the Customer. In the event of such goods not being available to the Supplier and subject to Clause 4.6 below the Supplier may rescind this Contract without being liable to the Customer for any loss whatsoever.
4.2 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in Writing by the Supplier or by delivery of the Goods (and/or supply of the Services as the case may be) by the Supplier.
4.3 The Customer shall be responsible to the Supplier for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving the Supplier any necessary information relating to the Goods and or the Services or their supply within a sufficient time to enable the Supplier to perform the Contract in accordance with its terms.
4.4 The quantity, quality and description of and any specification for the Goods and/or the Services shall be those set out in the Supplier’s written or verbal quotation (if accepted by the Customer) or the Customer’s written or oral order (if accepted by the Supplier in Writing).
4.5 No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in Writing of the Supplier and on terms that the Customer shall indemnify the Supplier in full against all loss (including consequential loss and loss of profit) and costs (including the cost of cancellation of any orders placed by the Supplier in order to fulfil the contract, transportation and warehousing costs), damages charges and expenses incurred by the Supplier as a result of such cancellation.
4.6 Where the Supplier and the Customer have agreed that Goods may be delivered in instalments each instalment shall be deemed to be a separate Contract and no failure of or delay in delivery of any instalment nor any defect in the Goods supplied in any individual instalment shall entitle the Customer to treat the Contract as repudiated with regard to any other instalment nor entitle him to defer payment for any other instalment.
4.7 In relation to Contracts for the sale of grass seed the Supplier reserves the right to alter the composition of grass seed mixtures supplied in the event of a shortage of supplies of any seed type forming a component part of a mixture ordered by a Customer to enable supply to the Customer to be completed, but shall not alter the composition of any mixture to an extent that would render it a substantially different type to that ordered.
5.1 The price of the Goods and/or the Services shall be the price agreed by the Supplier and the Customer or the Supplier’s quoted price or, where no price has been agreed or quoted (or a quoted price is no longer valid), the price listed in the Supplier’s published price list current at the date of acceptance of the order.
5.2 The Supplier reserves the right by giving notice to the Customer at any time before delivery, to increase the price of the Goods and/or the Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the reasonable control of the Supplier including without limitation, any increase in commodity prices, any increase in the price charged to the Supplier for the Goods, any foreign exchange 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 Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
5.3 The price is exclusive of any applicable value added tax, which the Customer shall be liable to pay to the Supplier in addition to the price.
6.1 The Customer shall pay the price of the Goods and/or the Services (less any discount to which the Customer is entitled, but without any other deduction) within 28 days of the date of the Supplier’s invoice, notwithstanding that delivery (or supply in the case of Services) may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract.
6.2 Payment shall not be deemed to have been received by the Supplier until the Supplier has received cleared funds.
6.3 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
6.3.1 cancel the Contract or suspend any further deliveries to the Customer;
6.3.2 charge the Customer interest on a daily basis on the amount unpaid at the rate of 4 per cent per annum above HSBC base lending rate from time to time in force until payment in full is received by the Supplier.
6.4 The Supplier may appropriate any payment made by the Customer to the Supplier to such of the Goods as the Supplier thinks fit despite any purported appropriation by the Customer.
7.1 Delivery of the Goods (and/or the supply of the Services as the case may be) shall occur:
7.1.1 in respect of Goods to be collected by or on behalf of the Customer when the Goods are loaded onto a vehicle for transport to the Customer or at the Customer’s direction at any time after the Supplier has notified the Customer that the Goods are ready for collection;
7.1.2 in respect of Goods to be delivered by the Supplier or at the Supplier’s direction when the Goods are offloaded at the place of delivery;
7.1.3 in respect of the supply of the Services, at any time after the Supplier has notified the Customer that the Services have been completed.
7.2 Any dates quoted for delivery of the Goods and/or the supply of the Services are approximate only and the Supplier shall not be liable for any delay in delivery of the Goods and/or supply of the Services however caused. Time for delivery and/or supply shall not be of the essence unless previously agreed by the Supplier in Writing. The Goods may be delivered (and/or the Services may be supplied) by the Supplier in advance of the quoted delivery and/or supply date upon giving reasonable notice to the Customer.
7.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Supplier to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
7.4 If the Supplier fails to deliver the Goods and/or supply the Services for any reason other than a cause beyond the Supplier’s reasonable control or the Customer’s fault any liability of the Supplier to the Customer shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar Goods and/or Services to replace those not delivered or supplied over the price of the Goods and/or Services.
7.5 If the Customer fails to take delivery of the Goods (or of any output products to which the Services have been applied to (the “Output Products”)) after 10 days or fails to give the Supplier adequate delivery instructions at the time stated for delivery or supply (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Supplier’s fault) then without prejudice to any other right or remedy available to the Supplier, the Supplier may:
7.5.1 store the Goods (and/or the Output Products referred to above) until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage and any wasted delivery costs; or
7.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Customer for any shortfall below the price under the Contract.
and the Customer shall reimburse the Supplier all other costs which in the Supplier’s reasonable opinion were wasted as a result of the Customer’s failure to take delivery or give adequate delivery instructions including (without limitation) the cost of wasted packaging.
8.1 Risk of damage to or loss of the Goods shall pass to the Customer upon delivery save in the case of Goods retained in stock by the Supplier at the Customer’s request where risk of damage to or loss of the Goods shall pass when the Goods are appropriated to the Customer.
8.2 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions, property in the Goods shall not pass to the Customer until the Supplier has received payment in full of all sums due to it in respect of:
8.2.1 the Goods; and
8.2.2 all other sums which are or which become due to the Supplier from the Customer on any account.
8.3 Until such time as the property in the Goods passes to the Customer, the Customer shall
8.3.1 hold the Goods as the Supplier’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Supplier’s property
8.3.2 be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Supplier 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 moneys or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
8.4 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), the Supplier shall be entitled at any time to require the Customer to deliver up the Goods to the Supplier and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
8.5 The Customer 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 Supplier, but if the Customer does so all moneys owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
9.1 Subject to the conditions set out below the Supplier warrants that the Goods will in all material respects be to the standard described in clause 3 (where appropriate) and will correspond with their description. The Supplier warrants that the Services will be supplied with reasonable skill and care.
9.2 The Supplier shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods (and/or the Services) has not been paid and the due date for payment has passed.
9.3 Subject as expressly provided in these Conditions, and all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.4 All and any claims by the Customer based on:
9.4.1 any defect in the quality or condition of the Goods (or their failure to correspond with specification); and/or
9.4.2 any failure of the Services to be supplied in accordance with the warranty at clause 9.1 above
shall (whether or not delivery or supply is refused by the Customer) be notified in Writing to the Supplier within 7 days of the time when the Customer discovers or ought to have discovered the defect or failure and where the Goods are seed in any event no later than the end of the earliest growing season in which seed could have been sown following delivery. The Customer shall permit the Supplier to investigate matters relevant to such notification before any remainder of the Goods and/or Services supplied are rejected, used or returned. If the Customer does not notify the Supplier accordingly, the Customer shall not be entitled to reject the Goods and/or the Services and the Supplier shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods and/or the Services had been supplied in accordance with the Contract.
9.5 Any claim arising from the observation of a growing crop shall be notified to the Supplier within 7 days of its discovery by the Customer. The Customer shall allow the Supplier immediate access to inspect the crop and sample any unsown seeds.
9.6 In no case will the Supplier accept any claim arising from the use of seeds in any other than the first growing season after delivery.
9.7 Notwithstanding the terms of the warranty set out in clause 9.1 above the Supplier shall not be liable to the Purchaser for any variation in description or specification arising out of any local or climatic conditions. The Supplier does not warrant the fitness of the Goods for any particular purpose even though that purpose may be known and no such warranty is to be implied from the description under which the Goods are sold.
9.8 The Supplier makes no warranty that the Goods sold (or Output Products supplied) are free from latent defect and accepts no responsibility whatsoever for crop germination or performance or in respect of mutants generated during reproduction.
9.9 Where a valid claim in respect of a breach of the warranty given under clause 9.1 which is based on any defect in the quality or condition of the Goods or their failure to meet specification (or in the case of the Services, which is based on the failure of the Services to be supplied with reasonable skill and care) is notified to the Supplier in accordance with these Conditions, the Supplier shall be entitled to replace the Goods (or the part in question) and/or re-supply the Services (or the part in question) free of charge or at the Supplier’s sole discretion refund to the Customer the price of the Goods and/or Services (or a proportionate part of the price) but the Supplier shall have no further liability to the Customer.
9.10 Except in respect of any matters in which the Supplier’s liability may not by law be restricted or excluded (including, without limitation, for fraud and for death or personal injury caused by the Supplier’s negligence), the Supplier’s total liability in respect of any contractual breach or representation, statement or tortious act or omission arising under or in connection with the Contract (and whether caused by the negligence of the Supplier, its employees or agents or otherwise) (a “Default”) shall not exceed the total sums paid or payable by the Customer to the Supplier in respect of the quantities of Goods and/or Services to which the Default relates.
9.11 The Supplier shall have no liability to the Customer for any consequential indirect or special loss or damage (including, without limitation, loss of profits, loss of business, loss of reputation and loss of goodwill), loss of profits (and whether caused by the negligence of the Supplier, its employees or agents or otherwise) which arise out of or in connection with Contract, the supply of the Goods or their use or resale by the Customer and/or the supply of the Services and the Output Products or the use or resale by the Customer of the Output Products.
9.12 The Supplier shall not be liable to the Customer or be deemed to be in breach of contract by reason of any delay in performing or any failure to perform any of the Supplier’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Supplier’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as a non-exhaustive list of causes beyond the Supplier’s reasonable control:
9.12.1 act of God, explosion, flood, tempest, fire or accident;
9.12.2 war or threat of war, terrorist activity, sabotage, insurrection, civil disturbance or requisition;
9.12.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
9.12.4 import or export regulations or embargoes;
9.12.5 strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of the Supplier or of a third party);9.12.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery; either by the Supplier or third party manufacturer or supplier; and
9.12.7 power failure or breakdown in machinery.
9.13 Where the Goods supplied are seeds of conventional varieties they have been bred from parent plants which have not been genetically modified. However where production of seed is carried out in natural conditions where there is free circulation of pollen it is not possible to prevent the occurrence of adventitious genetically modified organisms (GMO). Accordingly, the Supplier gives no guarantee that the Goods are free of genetically modified organisms and accepts no liability for any damage whatsoever arising from the occurrence of adventitious traces of genetically modified organisms.
9.14 Where the Supplier supplies in the UK seeds treated with product not registered for application in the UK but which was applied outside the UK the Supplier confirms that such product was applied in accordance with instructions provided by the manufacturer but the Supplier accepts no liability whatsoever arising out of the supply purchase and use of seeds which have been so treated and imported which are purchased entirely at the Customer’s own risk.
10.1 If the Supplier is found liable in respect of any claim made against it for infringement of any letters patent, copyright, registered design trade mark or other intellectual property rights of any other person which may arise as a result of the Supplier carrying out instructions given by the Customer, the Customer hereby agrees to indemnify and keep indemnified the Supplier from and against all or any such claim and against all costs (including legal costs) damages losses (including losses of profit) and demands arising in respect of any such claim.
10.2 The Customer shall indemnify the Supplier in respect of any liability incurred by the Supplier as a result of any damage or injury whatsoever to any person or to any property and against all actions suits claims costs, (including legal costs) charges or expenses arising in connection with the Goods whether caused by the negligence of the Supplier its servants or agents or not except to the extent that the Supplier is liable under these Conditions.
10.3 In the event of any breach of the terms of any contract for the sale of the Goods the Customer shall indemnify and keep indemnified the Supplier against all losses (including losses of profit) costs (including legal costs) claims damages or other injury or the like which the Supplier incurs as a result of the Customer’s breach.
11.1 If the Customer purchasing Goods being seeds of a Protected Variety is a British Society of Plant Breeders Limited (BSPB) Sub-licensee, the Customer shall upon request by the Supplier or by BSPB provide BSPB with the name and address of any person to whom the Customer has sold any seeds of the Protected Variety together with details of the crop species the name and quantity of the Protected Variety the seed certification numbers and the dates of all relevant transactions.
11.2 If the Customer sells seeds of a Protected Variety purchased from the Supplier to any third party, the Customer shall ensure that such sale is subject to a term in the form of Clause 11.1 above.
11.3 If the Customer purchases seeds of a Protected Variety (save vining pea varieties) which are sown on the Customer’s own holding and the Customer sows Farm Saved Seed the Customer agrees only to use such Farm Saved Seed on the same holding and shall not sell on or make-over such Farm Saved Seed.
11.4 If the Customer purchases seeds of a Protected Variety of vining peas the Customer agrees not to use such seed for multiplication or to use any Farm Saved Seed without first obtaining a sub-licence from BSPB and the Customer irrevocably undertakes that if seed purchased is to be used for the purposes of multiplication it has first obtained such a sub-licence.
11.5 If the Customer purchases seeds of a Protected Variety the Customer shall pay to BSPB all royalties that fall due to the Supplier for each planting year.
12.1 Where the Supplier supplies seeds to the Customer expressly for trial purposes such seeds are for experimental use only and it is a condition of supply of such seeds that they shall not be multiplied for resowing nor used for plant breeding nor offered for resale.
12.2 Seed supplied for trials purposes shall remain the Suppliers property and shall only be used for trial purposes. Material produced directly or indirectly from trials seed shall become the Suppliers property. Trials seed is supplied on the understanding that at the conclusion of such as are undertaken the Customer will destroy any unused seed and material grown on the Suppliers behalf.
12.3 The Customer agrees that the Supplier may visit trials by prior arrangement and that the Customer will provide to the Supplier all data and results arising out of such trials as are undertaken
13.1 This clause applies if:
13.1.1 the Customer 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
13.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
13.1.3 the Customer ceases, or threatens to cease, to carry on business; or 13.1.4 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly; or
13.1.5 the Supplier reasonably apprehends that any of the Customers obligations under this agreement may not be met; or
13.1.6 any similar or analogous event to the events noted at clauses 13.1.1 to 13.1.4 occur in any jurisdiction.
13.2 If this clause applies then without prejudice to any other rights or remedy available to the Supplier the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer 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. Nothing in this clause 13.2 affects the operation of clauses 8.2, 8.3, 8.4 and 8.5.
14.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
14.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 14 shall (subject to any special terms agreed in Writing between the Customer and the Supplier) apply notwithstanding any other provision of these Conditions.
14.3 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
14.4 Unless otherwise agreed in Writing between the Customer and the Supplier, the Goods shall be delivered ex works as defined in Incoterms and the Supplier shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
15.1 Any dispute (other than a claim for an unpaid debt) shall be referred to arbitration as follows:
15.1.1 if the Customer is a member of the National Farmers Union in England and Wales or a member of the National Farmers Union of Scotland (together referred to as “the NFU”) the dispute shall be referred to arbitration under the rules for the conduct of arbitration jointly agreed between the NFU and BSPB;
15.1.2 if the Customer is based in the UK and does not fall within clause 15.1.1, the dispute shall be referred to arbitration in accordance with the arbitration rules of BSPB; and
15.1.3 in every other case, the dispute shall be dealt with in accordance with section XXV (arbitration) of the International Seed Federation’s Rules and Usages for the Trade in Seeds for Sowing Purposes, published in July 2007.
16.1 Each party to the Contract shall keep strictly confidential all information concerning the business and affairs of the other obtained from the other either pursuant to the Contract or prior to and in contemplation of it, shall use the same exclusively for the purposes of the Contract, and shall disclose the same only to those of its directors and employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of the Contract.
16.2 The obligations of clause 16.1 above shall survive the expiry or termination of the Contract but shall not apply to any information which:-
16.2.1 the recipient can demonstrate was already in its possession and at its free disposal prior to receipt under the circumstances mentioned at clause 16.1 above;
16.2.2 is subsequently disclosed to the recipient without any obligation of confidence by a third party who has not derived it directly or indirectly from the disclosing party; or
16.2.3 enters the public domain through no act or default of the recipient, its agents or employees.
17.1 The Supplier may perform any of its obligations or exercise any of its rights hereunder by itself or through any group company, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Supplier.
17.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that 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.
17.3 No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
17.4 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 in question shall not be affected thereby.
17.5 The Contract shall be governed by the laws of England and the parties hereby agree to submit any dispute to the non-exclusive jurisdiction of the English courts.