Terms & Conditions of Sale
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
the period from 9.00 am to 5.00 pm on any Business Day.
has the meaning given "in "clause 2.2"."
these terms and conditions as amended from time to time in accordance with clause 14.8.
the contract between the Supplier and the Customer for the supply of Goods in accordance with these Conditions.
the person or firm who purchases the Goods from the Supplier.
has the meaning given in clause 4.1.
"Force Majeure Event":
has the meaning given to it in clause 13
the goods (or any part of them) set out in the Order.
"Intellectual Property Rights":
patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
the Customer's order for the supply of Goods as set out in the Customer's purchase order form or overleaf, as the case may be.
Farm and Garden Machinery Limited registered in England and Wales with company number 02513826.
(i) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(ii) A reference to a party includes its personal representatives, successors and permitted assigns.
(iii) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(iv) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(v) A reference to writing or written excludes fax but not email.
Basis of contract
- The Order constitutes an offer by the Customer to purchase Goods in accordance with these Conditions.
- The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order or dispatches the Goods (whichever is the earlier) at which point and on which date the Contract shall come into existence (Commencement Date).
- Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract nor have any contractual force.
- 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 law, trade custom, practice or course of dealing.
- The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
- The Goods are described in the Supplier's catalogue as modified by any applicable Goods Specification.
- The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
Delivery of Goods
- The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree ("Delivery Location") at any time after the Supplier notifies the Customer that the Goods are ready.
- Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.
- Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
- delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
- the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
- If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
- The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
- The Customer may only reject Goods if notice of rejection is given to the Supplier, in the case of a defect that is apparent on normal visual inspection, within three Business Days of delivery and, in the case of a latent defect, within a reasonable time of the latent defect becoming apparent and then only if none of the events listed in clause 5.3 apply. If the Customer fails to give notice of rejection in accordance with this clause, it shall be deemed to have accepted the Goods.
Quality of Goods
- The Customer acknowledges that the Supplier is a distributor and that the Supplier gives no warranty as to the description, quality, materials, workmanship or fitness for purpose of the Goods. All such warranties are excluded to the fullest extent permitted by law.
- In the event that the Customer rejects the Goods by notice given to the Supplier pursuant to the terms of clause 4.8 above, the Supplier will use reasonable endeavours to assist the Customer in pursuing its claim under any relevant manufacturer’s warranty and to obtain repair or replacement of the defective Goods.
The Supplier shall not be liable to provide any such assistance to the Customer if:
- the Customer makes any further use of such Goods after giving a notice in accordance with clause 4.8;
- the defect arises because the Customer failed to follow the Supplier's or manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
- the Customer alters or repairs such Goods without the written consent of the Supplier;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
- the Goods differ from their description or any applicable Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
- Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods.
- These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
Title and risk
- The risk in the Goods shall pass to the Customer on completion of delivery.
Title to the Goods shall not pass to the Customer until the earlier of:
- the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
- the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
Until title to the Goods has passed to the Customer, the Customer shall:
- store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
- notify the Supplier immediately if it becomes subject to any of the events listed in clause 11.1(a) to clause 11.1 (c); and
give the Supplier such information as the Supplier may reasonably require from time to time relating to:
- the Goods; and
- the ongoing financial position of the Customer.
Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
- it does so as principal and not as the Supplier's agent; and
- title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
At any time before title to the Goods passes to the Customer, the Supplier may:
- by notice in writing, terminate the Customer's right under clause 6.5 to resell the Goods or use them in the ordinary course of its business; and
- require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
Charges and payment
The price for Goods:
- shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list as at the date of delivery; and
- shall be inclusive of carriage unless otherwise stated, except where the Customer requests special delivery arrangements in which event the Supplier reserves the right to adjust the price to reflect the increased cost of delivery. Whilst there is no minimum order requirement all prices are based on orders for the minimum value agreed between the Supplier and the Customer. The Supplier will charge for carriage for any order received for less than the agreed minimum order value and will invoice the Customer accordingly.
- The price for Goods:
The Supplier reserves the right to increase the price of the Goods by giving notice to the Customer at any time before delivery to reflect any increase in the cost of the Goods to the Supplier that is due to:
- any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
- any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
- In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery.
The Customer shall pay each invoice submitted by the Supplier:
- on or before the last day of the month following the month of Delivery (or deemed delivery); and
- in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
- All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time ("VAT"). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the
- If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.5 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
- All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.1 No warranty is given by the Supplier that the Goods do not infringe any Intellectual Property.
- The following definition applies in this clause 9: "Data Protection Legislation": all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
- Both parties will comply with all applicable requirements of the Data Protection Legislation.
Limitation of liability
- The Supplier has obtained insurance cover in respect of certain aspects of its own legal liability for individual claims. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
- References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- Subject to clause 10.3, the Supplier's total liability to the Customer shall not exceed the sum paid by the Customer in respect of Goods actually supplied by the Supplier.
The following types of loss are wholly excluded:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential loss.
- 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.
- This clause 10 shall survive termination of the Contract.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
- the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
- Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
- Without affecting any other right or remedy available to it, the Supplier may suspend all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to either of the events listed in clause 11.1(a) to clause11.1(c), or the Supplier reasonably believes that the Customer is about to become subject to either of them.
- Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
Consequences of termination
On termination of the Contract:
- the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- the Customer shall return all of the Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
- Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
- Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
- On termination of the Contract:
- Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for four weeks, the party not affected may terminate the Contract by giving seven days' written notice to the affected party.
Assignment and other dealings
- The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
- The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- sent by email to the address notified to the Supplier or the Customer as the case may be from time to time.
Any notice shall be deemed to have been received:
- if delivered by hand, at the time the notice is left at the proper address;
- if sent by next working day delivery service, at 9.00 am on the second Business Day after posting; or
- if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 14.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
- Except as set out in clause 5, waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
- A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
- No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
- The Contract constitutes the entire agreement between the parties.
- Each party acknowledges that in entering into the Contract it does not rely on 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.
Third party rights.
- The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
- Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
- Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
- Assignment and other dealings