Terms and Conditions of Sale

Version: October 2022

The Customer’s attention is drawn in particular to the provisions of clause 10, which limit the Company’s liability to the Customer.

1 DEFINITIONS

1.1  In these Conditions, the following definitions apply:

1.1.1. ‘Acceptance Period’ means 7 days from the date of an Order Confirmation is sent by the Company to the Customer (or such later date as the Company agrees);

1.1.2. ‘Company’ means Earley Ornamentals Limited (company number 06968765), trading as Earley Ornamentals, whose registered office is at York Road, Thirsk, North Yorkshire, YO7 3AA;

1.1.3. ‘Conditions’ means the terms and conditions of sale set out in this document;

1.1.4. ‘Contract’ means the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with the Order Confirmation and these Conditions;

1.1.5. ‘Customer’ means the person, firm or company named in the Order Confirmation who agrees to purchase the Goods from the Company;

1.1.6. ‘Goods’ means the plants and seeds or any other goods which the Company is to supply to the Customer as set out in the Order Confirmation;

1.1.7. ‘Order Confirmation’ means the order confirmation sent by the Company to the Customer setting out details of:

1.1.7.1. the Goods,

1.1.7.2. the price,

1.1.7.3. payment terms,

1.1.7.4. any packaging, insurance and transport charges,

1.1.7.5. the delivery address,

1.1.7.6. the lead time for production of the Goods,

1.1.7.7. the Warranty Period for the Goods, and

1.1.7.8. any special limits to liability;

1.1.8. ‘Warranty Period’ means the period of one month from the date the Goods are delivered or such other period as is specified in the Order Confirmation.

2. BASIS OF CONTRACT

2.1. Subject to the variations provided for in these Conditions the supply of the Goods will proceed as follows:

2.1.1. the Company receives an order or an enquiry from the Customer;

2.1.2. the Company sends an Order Confirmation together with a copy of the Conditions to the Customer;

2.1.3. the Customer notifies the Company that it accepts the terms set out in the Order Confirmation;

2.1.4. the Company notifies the Customer when the Goods will be available for delivery;

2.1.5. the Customer accepts the Goods on the delivery date specified by the Company;

2.1.6. the Company sends an invoice to the Customer;

2.1.7. the Customer pays the Company’s invoice.

2.2. A legally binding Contract shall come into existence when the Customer notifies the Company that it accepts the terms set out in the Order Confirmation before the end of the Acceptance Period unless the Company withdraws the Order Confirmation.

2.3. The Customer is responsible for ensuring that the terms of the Order Confirmation are complete and accurate.

2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade custom, practice or course of dealing.

2.5. Any samples, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures website, social media or other marketing/sales communications are produced for the sole purpose of giving an approximate idea of the Goods referred to in them and are provided for general guidance only.  They shall not form part of the Contract nor have any contractual force.

2.6. No representations about the Goods by the Company or its staff not included in the Order Confirmation will form part of the Contract nor have any contractual force.

2.7. The Contract does not include the provision of any certificates of plant health unless stated in the Order Confirmation.  If not so stated the Company will provide certificates of plant health for plants delivered if requested by the Customer.

2.8. If there is a conflict between any of the terms contained in the Order Confirmation and these Conditions the terms in the Order Confirmation shall prevail.

2.9.No variation of the Contract shall have effect unless it is signed by a director of the Company and a duly authorised representative of the Customer.

3. CHANGES

3.1. The Company reserves the right to cancel or amend the Contract if required by:

3.1.1. any applicable statutory or regulatory requirements; or

3.1.2. shortfalls in expected crop production or processing results.

3.2. If the Company amends the Contract in accordance with clause 3.1 it may substitute what in the opinion of the Company is the nearest equivalent to any Goods not available.

4. PRICE

4.1. The price of the Goods shall be the price set out in the Order Confirmation.

4.2. The Company reserves the right by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the costs to the Company which is due to:

4.2.1. any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

4.2.2. any request by the Customer which the Company accepts to change the quantities or types of Goods ordered, or their delivery date(s); or

4.2.3. any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.

4.3. All prices, unless otherwise stated in the Order Confirmation, exclude:

4.3.1. amounts in respect of value added tax (“VAT”), which the Customer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice;

4.3.2. the costs of pallets and returnable containers used to deliver the Goods;

4.3.3. the costs of packaging, insurance and delivering the Goods;

4.3.4. any costs of storing and redelivering the Goods if the Company is unable to deliver the Goods in accordance with the Contract; and

4.3.5. any royalties which become due in respect of the Goods to plant breeders under the Plant Varieties and Seeds Act 1964 between the date of the Order Confirmation and the date of delivery.

4.4 If any changes to the price in the Order Confirmation are due under clause 4.2 or 4.3 which are not included in the original invoice the Company may submit a supplemental invoice.

5. TERMS OF PAYMENT

5.1. The Company shall send an invoice for total price of the Goods plus VAT and any packaging, insurance and transport charges identified on the Order Confirmation to the Customer after the Goods have been delivered.

5.2. The Company’s invoice must be paid in full within 30 days of receipt unless:

5.2.1. stated otherwise on the Order Confirmation in which case the invoice must be paid in the instalments and on the dates stated; or

5.2.2. the Customer has a credit account in which case all invoices must be paid not later than 30 days after the end of the month in which the Goods are delivered.

5.3. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).

5.4. The time for payment for the sums invoiced by the Company shall be of the essence. In the event of default in payment by the Customer the Company shall be entitled at its discretion, without prejudice to any other right or remedy, to:

5.4.1. suspend all further deliveries on any Contract and any other contracts between the Company and the Customer until full payment of any outstanding amount has been made;

5.4.2. claim interest pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 after as well as before judgement until full payment of any outstanding amount has been made; or

5.4.3. charge the costs and expenses of recovering all overdue amounts.

6. DELIVERY

6.1. Delivery dates shown in the Company’s catalogues and marketing communications or on its website are for general guidance only.  The Company will specify an estimated delivery date in the Order Confirmation but due to the nature of the Goods this is not guaranteed.  Time of delivery is not of the essence.

6.2. The Company will:

6.2.1. notify the Customer of the delivery date for the Goods; and

6.2.2. arrange for the delivery of the Goods to the delivery address on the Order Confirmation on the delivery date notified to the Customer by the Company if possible but this is not guaranteed.

6.3. Delivery may be in more than one instalment.

6.4. Except for credit account customers the Company will not deliver any of the Goods if any sums owed to the Company by the Customer are outstanding.

6.5. No allowance will be credited for Goods collected from the Company’s premises by the Customer.

6.6. The Company will select the method of delivery with due regard to urgency and cost.

6.7. Delivery shall in every case be dependent upon prompt receipt of all necessary information final instructions or approvals from the Customer.

6.8. The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery but shall be under no obligation to do so.  When delivery is postponed otherwise than due to default by the Company the Customer shall pay all costs and expenses incurred by the Company in connection with such postponement including (but not limited to) a charge of 15% of the total value of the Contract for transportation and/or storage or restocking occasioned thereby.

6.9. Goods supplied in accordance with these Conditions cannot be returned without the Company’s prior written authorisation.  Duly authorised returns shall be sent to the Company’s premises at the Customer’s expense and the Company shall be entitled to apply a 15% handling charge in respect of those Goods returned.

6.10. Unless otherwise expressly agreed any packaging supplied by the Company is intended to be only sufficient to protect the Goods for all normal conditions of transit and for the normal period of transit only.

6.11. The Customer must ensure that the delivery location is safe and can accept delivery of the Goods and that the Customer makes available sufficient and suitably skilled personnel and appropriate equipment to unload the Goods safely.  The Company reserves the right to postpone delivery of any Goods if it considers that the Customer has failed to provide a safe delivery location and sufficient and suitable assistance to enable delivery to be completed.  If the Company is unable to safely deliver the Goods, the Customer shall be responsible for the costs of re-delivery together with associated costs as set out in clause 6.8 above.

6.12. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by an event beyond the Company’s reasonable control or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or the Customer’s failure to comply with clause 6.11.

7. RISK AND TITLE

7.1. Risk shall pass to the Customer so that the Customer is responsible for all loss and damage or deterioration to the Goods at the time when the Goods or a relevant part thereof are unloaded at the place of delivery or if the Customer wrongfully fails to take delivery at the time the Company tendered delivery of the Goods.

7.2. Title in the Goods or any part thereof supplied hereunder shall not pass to the Customer until payment has been made in full and cleared funds received for:

7.2.1. the total of the Company’s invoices relating to the Contract, and

7.2.2. all overdue sums due under any other contract between the Company and the Customer.

7.3. Before title for any Goods has passed to the Customer:

7.3.1. the Company shall have the right to recover or resell the Goods or any of them and may enter upon the Customer’s premises by its employees or agents for that purpose;

7.3.2. the Customer shall take all reasonable precautions to protect the Goods from damage or loss arising from any cause and shall indicate that the Goods are the property of the Company; and

7.3.3. the Customer shall keep the Goods insured in the amount of the price at which the Goods are sold to the Customer against all insurable risks and if the Goods are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for the Company.

8. SHORTAGES AND DELIVERY DAMAGE APPARENT ON INSPECTION

8.1. No liability will be accepted regarding claims or complaints as to shortages or transport damage unless notified to the Company by telephone within 2 working days and confirmed in writing within 7 days after the Goods have been delivered.

8..2. If it is agreed by the Company that the Goods are damaged or a shortage is apparent, the Goods will be replaced free of charge or at the option of the Company, allowed for credit, provided that such credit shall not exceed the value of the relevant Goods as invoiced and provided that the Customer shall, if required by the Company, return any damaged Goods at the Company’s expense (subject to the Company’s prior approval) in the same condition as they were supplied.

8.3. It is agreed by the Customer that if on delivery any the Goods are damaged or less than the quantity ordered, the Customer shall not be entitled to reject the Goods but if the Customer provides the Company with photographic or other suitable evidence the Company will allow credit for the damaged or missing Goods, provided that:

8.3.1. such credit shall not exceed the value of the relevant Goods as invoiced; and

8.3.2. the Customer shall, if required by the Company, return any damaged Goods at the Company’s expense in the same condition as they were delivered.

9. GOODS WARRANTIES

9.1. The Company warrants that on delivery and throughout the Warranty Period, the Goods shall:

9.1.1. conform in all material respects with their description;

9.1.2. be free of notifiable pests and diseases;

9.1.3. (if applicable) comply with the current UK seeds regulations; and

9.1.4. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

9.2. Subject to clause 9.3, if:

9.2.1. the Customer gives notice in writing to the Company during the Warranty Period within 7 days after the discovery that some or all of the Goods do not comply with the warranty set out in clause 9.1;

9.2.2. the Company is given a reasonable opportunity of examining such Goods, including but not limited to being given the opportunity to conduct site visit(s); and

9.2.3. the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost,

9.2.4. the Company shall, at its option, replace the defective Goods, or refund the price of the defective Goods (including any return delivery costs incurred by the Customer) in full.

9.3. The Company shall not be liable for the Goods failure to comply with the warranty set out in clause 9.1 the defect arises as a result of:

9.3.1. the nature and natural lifetime of the Goods;

9.3.2. Customer’s failure to follow the Company’s oral or written instructions as to the storage, planting, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

9.3.3.wilful damage, negligence, or abnormal storage or working conditions; or

9.3.4. adverse weather conditions;

9.3.5. contamination, pest damage or disease following delivery;

9.3.6. any treatment applied to the Goods by the Customer.

9.4. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

9.5. These Conditions shall apply to any replacement Goods supplied by the Company.  Unless otherwise stated in this clause 9, the Warranty Period for replacement Goods shall be the balance remaining of the Warranty Period for the relevant original Goods which have been replaced.

10. LIMITATIONS OF LIABILITY

10.1. The Company shall not be responsible for any loss, injury or damage suffered as a result of a failure on the part of the Customer or any third party to use, handle or deal with the Goods in a safe and proper manner and in accordance with all applicable regulations and all procedures recommended by the Company.

10.2. No representation is made nor warranty given by the Company as to the suitability or fitness of the Goods for any particular purpose or location, and the Customer shall be responsible for ascertaining whether the Goods are suitable or fit for the Customer’s purpose, taking into account weather conditions and the Company shall be under no liability for any loss damage expense or liability incurred by the Customer or any third party as a result of the Goods not being suitable for a particular use.

10.3. Nothing in these Conditions shall limit or exclude the Company’s liability for:

10.3.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

10.3.2. fraud or fraudulent misrepresentation;

10.3.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;

10.3.4. any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

10.4. Subject to clause 10.3 the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

10.4.1. any indirect or consequential loss arising under or in connection with the Contract;

10.4.2. loss or damage to persons or property (other than the Goods);

10.4.3. pure economic loss;

10.4.4. loss of profits;

10.4.5. loss of business; and

10.4.6. depletion of goodwill.

10.5. The Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount stated in the Order Confirmation or if none the price of the Goods supplied.

10.6. The Customer acknowledges, agrees and recognises that the limitation of liability contained in this clause is reasonable in that the prices quoted by the Company are dependent upon such limitation being incorporated in the Contract.  The Customer is responsible for making its own arrangements for the insurance of any additional losses.

11. FORCE MAJEURE

11.1. If the Company is prevented (directly or indirectly) from making delivery of any Goods by reason of force majeure (as hereinafter defined) the Company shall be under no liability whatsoever to the Customer.

11.2. The following shall be regarded as force majeure: Act of God, explosion, flood, tempest, fire, accident, epidemics and pandemics, war, threat of war, sabotage, insurrection, civil disturbance, government requisition, acts, restrictions, regulations, bye-laws, prohibitions, or measures of any kind, on the part of any governmental, parliamentary, or local authority; import or export regulations, or embargoes, strikes, lock-outs, or other industrial actions, or trade disputes, shortages of raw materials, labour, fuel or parts of machinery, power failure, unavailability of the use of public or private telecommunications networks and any other cause whatsoever beyond the Company’s reasonable control.

12. INDEMNITY

12.1. The Customer shall indemnify the Company in full on demand against any costs, charges, losses or expenses including legal fees which the Company may sustain or incur because of any failure by the Customer promptly and properly to perform its obligations hereunder.

12.2. The Customer shall indemnify the Company against any damages, losses, costs, claims or expenses suffered or incurred by the Company in respect of any claim brought against the Company by any third party for any loss injury or damage wholly or partly caused by the Goods.

13. TERMINATION

13.1. The Company shall be entitled without prejudice to its other rights and remedies, either to terminate the Contract or any other contract with the Customer or to suspend any further deliveries under the Contract or any other such contract if the Customer:

13.1.1. fails to make any payment by the due date;

13.1.2. fails to take delivery of any Goods under the Contract on a delivery date notified by the Company;

13.1.3. is in material breach of the Contract;

131.1.4. makes any voluntary arrangement with its creditors;

13.1.5. (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);

13.1.6. an encumbrancer takes possession or a receiver is appointed, of any of the property or assets of the Customer;

13.1.7. ceases, or threatens to cease, to carry on business; or

13.1.8. the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

13.2. If the Contract is terminated then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to suspend any further deliveries under the Contract without affecting the Customer’s liability to pay any sums due to the Company.

14. CANCELLATION

14.1. The Company may (but is not obliged to) agree to cancellation of a Contract on condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage resulting to the Company by reason of such cancellation shall be paid forthwith by the Customer to the Company.

15. GENERAL

15.1. No waiver by the Company 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 of this or any other contract.

15.2. If any of the provisions 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.

15.3. The Customer shall not assign or transfer any of its rights benefits or obligations under the Contract (save with the prior written consent of the Company).

15.4. The Contract shall be governed by and construed in all respects in accordance with English Law, and the Customer hereby submits for all purposes of and in connection with the Contract, to the non-exclusive jurisdiction of the English Courts.

15.5. Any notice or other communication to be given under the Contract shall be in the English language and may be delivered in writing by hand or sent by pre-paid first-class post or email to the party to be served at that party’s registered office or last-known trading address and (in relation to the Company) marked for the attention of the managing director.

15.6. A notice shall be deemed to have been served, if by hand when delivered, if by email when transmitted, and if by first class post 48 hours after posting.

15.7. The clause headings are for reference purposes only, and do not limit or otherwise affect the interpretation of these Conditions.

15.8. Each of the provisions contained in these Conditions shall be construed as separate and severable.

15.9. 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 but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

15.10. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

15.11. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.