GENERAL DEFINITIONS AND APPLICATION
1. The following words herein after referred to in these Conditions shall have the following meaning: 'the seller' - refers to Hamer Flower Seeds Ltd. t/a Florensis Ltd.
'the buyer' - refers to the party entering into the contract of purchase with Hamer Flower Seeds Ltd. t/a Florensis Ltd.: 'the goods' - refers to all goods the subject of the contract between the Seller and the Buyer.
GENERAL CONDITIONS OF SALE
2.1. These conditions modify and restrict certain obligations implied by law and limit the extent of liability for breach of contract and/or negligence. The placing of an order constitutes an acceptance of all our terms and conditions of sale by the buyer. Therefore they should be carefully considered and any explanation necessary sought before ordering. If the buyer is not prepared to accept such terms and conditions the goods must be returned to us forthwith (and in any case within 48 hours).
2.2. These conditions supersede any and all prior representations, agreements, statements and understandings whether in oral or in written form.
2.3. Nothing in this catalogue shall constitute an offer to sell and the seller reserves the right to refuse any offer constituted by an order or otherwise.
2.4. These conditions are to apply in conjunction with terms of business mentioned in this catalogue or elsewhere and in the case of any conflict these conditions shall prevail.
FORCE MAJEURE
3. The seller shall not be responsible for any delay in delivery of the goods or any part thereof and for any failure in the performance of any of its obligations caused by factors outside its control.
THIRD PARTIES
4. The buyer shall not make any admission offer promise of payment of indemnity for any claim which is or might be brought by a third party (orders and contracts taken by salesmen or representatives are not binding to us unless we have stated so in writing) against the seller without the written consent of the seller and any breach of this provision shall (without prejudice to any other right or remedy of the seller) extinguish any claim which the buyer might otherwise have against the seller on any ground whatsoever. The buyer will indemnify the seller against all proceeding costs and claims made by third parties in respect of the goods sold to the buyer by the seller.
TITLE AND RISK
5. For the purpose of Section 12 of Sale of Goods Act 1979 the seller shall transfer any such title or rights in respect of the goods as the seller 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 seller. Not withstanding the earlier passing of risk (which shall unless otherwise agreed be on delivery) title in the goods shall remain with the seller and shall not pass to the buyer until the amount due under the invoice or any other relevant costs have been paid in full. Until title passes the buyer shall hold the goods as bail for the seller and shall store or mark them so that they can at all times be identified as the property of the seller. The seller shall be entitled at any time before title passes to repossess (without being liable for any damage caused by so doing) and use or sell all or any of the goods and so terminate (without any liability to the buyer) the buyer's right to use, sell or otherwise deal in them and for that purpose or determining what if any goods are held by the buyer and inspecting them to enter any premises of the buyer. Until title passes the entire proceeds of sale of the goods shall be held in trust for the seller and shall not be mingled with other monies or paid into any overdrawn bank account and shall be at all times identifiable as the seller's money. The seller shall be entitled to maintain action for the price of any goods not withstanding that title in them has not passed to they buyer. Nothing in these conditions shall constitute a bill of sale or other security so as to require registration.
EXTENT OF LIABILITY
6.1. The seller shall have no liability to the buyer (other than liability for death of personal injury resulting from the seller's negligence) for any loss or damage of any nature arising from any breach of any express or implied warranty or condition or of any negligence, breach of statutory or other duty on the part of the seller or arising in any other way out of or in connection with the performance or purported performance of or failure to perform any contract except in accordance with this condition.
6.2. The seller shall at its option replace with similar goods or repair any defective goods, allow the buyer credit for their invoice value or to the extent that the goods are not of the seller's manufacture or growth, assign to the buyer (so far as the seller is able to do) any warranties given by the manufacturer of the goods to the seller.
6.3. Where the seller is liable in accordance with this condition in respect of only some or part of the goods the contract shall remain in full force and effect in respect of the other or other parts of the goods and no set offer or other claim shall be made by the buyer against or in respect of such other or other parts of the goods
6.4. In no circumstances shall the liability of the seller to the buyer exceed the invoice value of the goods. The price of such seeds/plants would be much greater if a more extensive liability were required to be undertaken. In accepting the seeds/plants upon these conditions the Buyer acknowledges that the limitation of the seller's liability is fair and reasonable.
ARBITRATION
7. Any dispute under this contract shall be referred to arbitration in accordance with the rules of the British Association of Grain, Seed, Feed and Agricultural Merchants Ltd (BASAM) and with the rules of the United Kingdom Agricultural Supply Trade Association Ltd. (UK ASTA).
INSOLVENCY
8.1. If the buyer (a) has a receiver or liquidator or administrator appointed in respect of any property or business undertaking (b) announces that the buyer has ceased or is ceasing to trade (c) fails to make any payment when due or suspends payment (d) notifies any creditor that the buyer is unable to meet debts or that he is about to suspend payment of any debts (e) calls or holds a meeting of creditors (f) commits an act of bankruptcy or is adjudicated bankrupt or has an administration order made (g) being a limited company enters into liquidation (other than for the purpose of re-construction or amalgamation) (h) enters into any arrangement or composition with or for the benefit of creditors or (i) suffers any distress or execution to be levied upon the buyer's goods then notwithstanding any previous arrangement for deferred payments all sums payable by the buyer to us shall immediately become due and we shall have the right (without prejudice to any other right or remedy available to us) to cancel or suspend further deliveries under the contract.
8.2. On the exercise of any rights or remedies we shall not be liable to pay any compensation to the buyer.
LAW AND CONSTRUCTION
9.1. The contract shall be governed by English law and the buyer consents to the exclusive jurisdiction of the English Courts in all matters regarding the contract except to the extent that the seller invokes the jurisdiction of the courts of any other country.
9.2. The headings of conditions are for convenience or reference only and shall not affect their interpretation.
9.3. If any part of these conditions be found to be unreasonable, invalid or unlawful under any enactment or rule of law pertaining thereto the court or other competent tribunal shall have the power to strike out or override that part whether it be an entire condition or conditions or some part or parts thereof and enforce these conditions as if the unreasonable invalid or unlawful part or parts aforesaid had not been included.
PLANT VARIETIES AND SEED ACT 1964
(with subsequent amendments)
10.1 The price of any variety which becomes the subject of a grant of plant breeder's rights under the Plant Varieties and Seeds Act will be adjusted to include the cost of any royalty payable to the owner of the rights. If, in the case of a variety which is already the subject of plant breeder's rights, there is any change in the rate of royalty the price will be adjusted accordingly.
10.2 The varieties protected in this fashion shall be designated by the seller by ® or P
BREEDER'S RIGHTS OR CONTRACTURAL PROTECTION OF ORIGINAL VARIETIES DUTIES OF 'THE BUYER'
11.1 The buyer shall not in any way effect multiplication or propagation of plant varieties obtained from the seller in violation of the provisions in applicable legislation on plant variety rights and/or this licence agreement. Consequently the buyer shall not dispose of plants or parts thereof in violation thereof.
11.2 The buyer shall clearly make known on disposal and in advertisements that commercial propagation or multiplication is only allowed with the seller's consent.
11.3 The source material supplied may be used by the buyer only for the cultivation of finished ornamental varieties at the business of the buyer.
11.4 The finished product, originating from source material supplied to the buyer, must be sold by the buyer under the appropriate (variety) name and if applicable trade name.
11.5 Should the buyer discover a mutant in a protected variety, the buyer must inform the holder of the grower’s rights of this immediately by registered letter.
11.6 The buyer shall at the written request of the holder of the grower’s rights within a period of 2 (two) months from receipt of a request to that effect release trial material to the holder of grower’s rights.
11.7 The buyer is aware that the finder of a mutant in the protected variety requires permission from the grower(s) of the "maternal strain to exploit the mutant".
11.8 The buyer is specifically aware that the finder of a mutant requires permission from the holder of the grower’s right with respect to the "maternal strain" to carry out the following procedures with the material of the variety, including material harvested (consequently also flowers, plants and parts of plants, specifically:
a) produce or duplicate (propagate);
b) condition for the purpose of propagation;
c) tender for sale;
d) sell or merchandise in any other way;
e) export and/or import;
f) hold in stock for the purposes stipulated under a) to and including e) above.
CONTROL
11.9 The seller or a representative authorised by the seller shall be entitled to verify the observance of this licence agreement, including inspecting the stock of plants and plant material covered by the licence
11.10 The buyer agrees to offer reasonable and necessary assistance and to give all relevant information for the performance of the control. The control shall not be more exhaustive than is necessary to verify observance of the terms of sale.
11.11 The seller or a representative authorised by the seller shall not, as part of the control, demand information of a commercial nature, and the seller guarantees the confidentiality of any information that may come to his knowledge in connection with such control visits, or any information received otherwise.
11.12 Violations will result in an immediate penalty of 40 pence (sterling) per illegally propagated cutting. This penalty does not affect the legal rights of the seller to claim real damages from the transgressor.
COMPLAINTS
12.1. No complaints under the terms of the above guaranteed and Conditions of Sale shall be considered unless clear proof can be given that the product grown and alleged to have performed unsatisfactorily was in fact the product supplied by the seller and that it was grown on suitably prepared ground, treated carefully and correctly throughout and subject only to such conditions as were likely to produce a favourable crop.
12.2. All seeds are offered and sold for production of consumer crops and not for reproduction of seed.
12.3. No responsibility whatsoever will be accepted by us for any seed crops produced.
DELIVERY
13. The seller may at its discretion deliver the goods by instalments in any sequence and each instalment shall be deemed to be the subject of a separate contract and no default or failure by the seller in respect of any one or more instalments shall vitiate the contract in respect of goods previously delivered or undelivered goods.
TERMS OF PAYMENT
14.1. Goods are invoiced net and accounts will be regarded as overdue if unpaid after 30 days from date of invoice.
14.2. Interest at the rate of 2% per month may be charged on overdue accounts (as well after as before any judgement).
14.3. We reserve the right to withhold deliveries under the contract until all outstanding payments under any contract have been received by us.
14.4. If any cheque is returned by the bank after presentation or representation of it for payment any bank charges incurred by us together with a handling charge shall be reimbursed to us by the buyer.
NON-PAYMENT
15. The seller may withhold deliveries until any outstanding payments under any contract with him by the buyer have been received and may sell or otherwise despose of all goods the subject of any such contract whether appropriated to it or not in respect of any such payments.
CREDIT ACCOUNTS
16. To open a credit account please request an application form from head office or your area sales representative. Orders cannot be executed until the application has been approved. A completed and approved credit application form is required before any order for a new account can be dispatched.
PRICE
17.1. All goods are sold at prices current at the date of contract notwithstanding anything in our catalogue.
17.2. Value added tax at the rate or rates for the time being in force in respect of the goods shall be payable by the buyer in addition to the price.
17.3. We shall be entitled to adjust the price of the goods whether before or after the making of the contract in the event of any variation in the cost to us of supplying the goods or any part thereof by reason of (a) any increase in the cost of the goods required by us for the completion of the contract; (b) any increase in any royalty payable under the Plant Varieties and Seeds Act 1964 or any statutory modification or re-enactment therof for the time being in force (c) any other matter beyond our control including (but not limited to ) fluctuations in exchange rates between monetary currencies or the action of any government or other authority anywhere in the world or any labour problems.
17.4. All prices are subject to alteration without notice.
FLUCTUATIONS IN CURRENCY
18. Where the goods are of foreign origin we reserve the right to adjust the price payable by the customer on any sale as to reflect any alteration in the value of the £ sterling in terms of the currency of origin of the goods between date of sale and that of issue of the invoice for the goods sold. At all times we reserve the right to alter prices without prior notice in the event of the imposition or increase in any tariff or import levy.
CLAIMS NOTIFICATION
19.1. Any claim for non-delivery of any goods shall be notified in writing by the buyer to the seller within 14 days of the date of the relevant invoice.
19.2. 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 by the buyer to the seller by telephone or otherwise within 24 hours of their delivery and confirmed in writing within 7 days of such notification.
19.3. Any alleged defect shall be notified by the buyer to the seller within 7 days of the delivery of the goods or in the case of any defect which is not reasonably apparent on inspection within 7 days of the date upon which the defect might reasonably have been expected to come or actually did come to the notice of the buyer whichever be the sooner.
19.4. Any claim under this condition must be in writing and must contain full details of the claim.
19.5. The seller shall be afforded reasonable opportunity and facilities to investigate any claims made under this condition and the buyer shall if so requested in writing by the seller promptly return any goods, the subject of any claim and any packing, securely packed and carriage paid to the seller for examination.
DISCLAIMER
20. All information given in our catalogue or otherwise provided by us, by any agent or representative on our behalf, relating to varieties, varital characteristics or periods of maturity or otherwise relating to the performance of seeds or plants, is given in good faith and is for general guidance only and therefore does not constitute the guarantee of a successful crop. Cultural details are based on typical North European conditions. This may vary in different parts of the country. The manufacturer of any product and government regulations concerning that product i.e. chemicals must be referred to before use. Although great care is taken to ensure information given is correct the seller cannot be held responsible for the consequences of the use of any product mentioned or for any crop damage or loss resulting from information given herein.
CONDITIONS OF SALE FOR SEED
AVAILABILITY
21.In the event of market shortage the seller may apportion available supplies at its discretion. The sale of imported seed is subject to availability from the seller's usual supplier and if such seed is not available from other sources at a price no greater than that contracted for by the seller with its usual supplier the seller may treat the buyer's order as cancelled without liability to either party.
STANDARDS
22. All seeds comply with EEC Rules and Standards where applicable and are guaranteed to comply when delivered with the current UK seeds regulations. Any information however given by or on behalf of the seller relating to the performance of seed shall not constitute a warranty or other representations and the buyer is to satisfy himself that seed ordered is of a variety and performance satisfactory for the buyer's requirements.
LATENT DEFECTS
23. (Diseases of plants can be transmitted by the wind, by animals or by human agencies and may be seed borne or soil borne). The seller believes seeds sold by it to be free from latent defect but it is not a condition of sale nor does the seller warrant that any seed so sold is so free and the seller shall not be responsible for the resultant crop.
SEED TREATMENT
24. Where any treatment (chemical or other and including pelleting) is applied to seed the seller's liability shall be limited to such treatment's being carried out in the correct manner and/or in accordance with the instructions given by the manufacturer of the means of treatment. The seller accepts no responsibility for the effectiveness of such treatment or any damage, direct or consequential which may result therefrom. If so desired by the seller the purity and germination percentages of any seed shall be deemed to be based on tests made before any such treatment.
RETURNED SEED
25. Credit for goods returned shall be at the entire discretion of the seller and will not be accepted unless seed is returned with the seller's prior permission and with seals unbroken in the original packaging and undamaged within seven days of delivery quoting original invoice number and subject to payment of the handling charge stipulated when giving any such permission.
ONDITIONS OF SALE FOR YOUNG PLANTS AND SEEDLINGS
AVAILABILITY
26.1. Orders are accepted subject to plants being available from the seller's own stock at the time delivery is due. The seller may substitute what in the seller's opinion is the nearest equivalent of any variety not available unless the buyer specifically prohibits this when ordering.
26.2. All items are offered subject to availability, confirmation of order does not constitute guarantee of delivery. All orders are accepted on these conditions.
26.3. If no suitable substitute is available any relevant contract will be deemed to be cancelled without any liability on either party's part and in that case if payment for the goods has already been made we will credit the value of them to the buyer's account.
WARRANTIES
27. Every effort is made to ensure that the seller's stock is of the highest quality, true to name and free from pest and disease but plants are sold without warranty, express or implied, as to description, quality, productivity or freedom from pest and disease.
CANCELLATIONS
28. 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 material used), damages, charges and expenses incurred by the Seller as a result of cancellation.
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