Terms and conditions effective from1st November 2006. This offer cancels all previous offers DEFINITIONS In these Terms:
Buyermeans the person who accepts Elsoms quotation for the sale of goods or whose order for goods is accepted by Elsoms.
Contractmeans the contract for the sale and purchase of goods.
Elsomsmeans Elsoms Seeds Ltd of Pinchbeck Road Spalding Lincolnshire PE11 1QG.
Termsmeans the standard terms and conditions of sale as set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between the Buyer and Elsoms.
JURISDICTION Unless otherwise specifically agreed in writing English law shall govern the construction of the Terms and any dispute whichmay arise in relation to them.
PRICES These prices have been based on the latest costs at time of going to press and offers are subject to out-turn of our or our suppliers crops and/or being unsold and without engagements. Prices are for net weights, bags free and non-returnable unless otherwise stated. All prices quoted by letter or verbally by HeadOffice personnel or our authorised representatives are subject to alteration without notice.We also reserve the right to alter prices by reason of the imposition of or alteration of any tax, duty, levy or other statutory or E.U. charge at the point of application in accordance with the regulations relating to the aforementioned charges.
FLUCTUATIONS IN THE £ If the goods which are the subjectmatter of this offer are of foreign origin we reserve the right to adjust the price payable by you so as to reflect any alteration in the value of the £ sterling in terms of currency of the country of origin of the goods between the date of sale and the date of invoice.
CARRIAGE The prices are, unless otherwise stated, inclusive of packing and delivery, carriage paid home in England, Scotland, Wales or f.o.b. English ports. Special delivery e.g. 1st CLASS POST etc. will be charged to the Buyer.
SUBSTITUTIONS If we are unable to supply the variety or treatment ordered we will usually send the nearest available, unless instructed to the contrary.
OUR INFORMATION All information whether contained in our literature or given by our staff is for general guidance only. Variation in local or climatic conditions can render such information inaccurate. Buyers are therefore advised that any such information given to themdoes not constitute a representation by us as to thesematters and should not be relied on as such. Buyers should satisfy themselves that any seeds which they order are of a variety and performance satisfactory for their requirements and order such seeds at their own risk.
SEED QUALITY Seeds sold by us are guaranteed to comply at the time of delivery with the UK Seeds Regulations currently in force. All germination figures quoted are laboratory tests as defined by the ISTA and/or E.U. Regulations and are not the figures that can be expected to grow in the field. If certificates of conformity are required, please request these at time of ordering.
REPRODUCTION OF SEED With the exception of our Basic and Elite grade cereal seed, all seeds are offered and sold for the production of consumer crops and not for reproduction of seed. Unless otherwise stated by us, no liability whatsoever can be accepted for any seed crops produced.
LATENT DEFECT Disease of plants can be transmitted by the wind, by insect, by animals or by human agencies andmay be seed borne or soil borne.We believe the seed hereby sold to be free fromlatent defect, but it is not a condition of sale nor do we warrant that any seed sold by us shall be free fromsuch defect and we will not be responsible in any way for the resultant crop.
BUYER SPECIFIED UNTREATED SEED If a Buyer specifically requests that seed should not have a chemical treatment where this is normally offered or advised in our Catalogue or Guide then we accept no liability for any damage, direct or consequential, whichmay result therefrom.
SEED TREATMENT AT BUYER’S REQUEST Where at the Buyer’s request any treatment whether chemical or otherwise is applied to the seed, Elsoms accepts no responsibility for the effectiveness of such treatment or any damage direct or consequential whichmay result therefrom.
Buyersmay request that seed is treated in accordance with a specific off-label approval (SOLA). SOLA’s are uses for which approval has been sought by individuals or organisations other than themanufacturers. The Notices of Approval are published by DEFRA and are widely available fromADAS or NFU offices. Buyersmust first obtain a copy of the relevant Notice of Approval and comply strictly with the conditions laid down therein. Although approved, off-label uses are not endorsed bymanufacturers and such treatments aremade entirely at the risk of the Buyer.
DAMAGE, DELAY or LOSS IN TRANSIT Please advise us immediately and, on receipt of goods, inspect carefully. If there is any sign of damage, sign “Damaged in Transit” and indicate then that a claimwill bemade.
In the case of goods actually delivered damaged, Elsomsmust notify the carrier within 10 days of delivery. Buyers are, therefore, requested to notify immediately by phone of any case of goods received damaged and confirmby return first class mail so that the necessary claimcan be made. In cases of non-arrival of goods, within fourteen days of despatch, advise the Carriers and us. This gives us the time to lodge a complaint within the time limit of 28 days.
FORCE MAJEURE Should the fulfilment of any Contract or order be prevented or delayed by Act of God, action by any Government, blockade, revolution, prohibition of export or import, riot, civil commotion, strikes, lockouts, forcemajeure, failure of crops, breakdown ofmachinery, power failure, fuel shortage, loss and/or detention at sea or any other contingency beyond our control, we will not be responsible for any loss and/or damage occasioned thereby. Should any of the goods be rendered unfit for delivery by reason of any of the above acts the Contract so far as it relates to those goods shall be deemed to be cancelled.
DELIVERY Each delivery or consignment shall stand as a separate contract.
PAYMENT Cheques, postal orders, etc., should bemade payable to ELSOMS SEEDS LTD. and crossed/& Co./. After 28 days all accounts are due at full invoice price. Interest will be charged on overdue accounts at a rate of 1.25%permonth calculated on the outstanding balance. All accounts are payable at Spalding, Lincs.We reserve the right to require payment at any time and the goods are sold subject to this express condition.
NON-PAYMENT Elsoms reserve the right to withhold deliveries until all and any outstanding payments due fromthe Buyer under any Contract with us have been received and reserve a lien upon–and the right to sell or otherwise dispose of–all goods the subject of any Contract whether appropriated to it or not in respect of any such payments.
OWNERSHIP AND RISK (a) Until paid for in full, all goods supplied by Elsoms, remain Elsoms property.
(b) Risk passes to the Buyer on delivery of the goods.
Conditions regarding ownership and risk do not affect Elsoms contractual rights and all goods suppliedmust be paid for in accordance with the contract.
INSOLVENCY (i) If the Buyer:
(a) Has a Receiver or Liquidator appointed to any of its property or business undertaking; or
(b) Announces that he is ceasing to Trade (other than for declared legitimate reasons such as retirement, whilst continuing to honour all existing contracts); or
(c) Fails tomake a payment as due, suspends payment and/or notifies any of his creditors that he is unable tomeet debts or that he is about to suspend payment of his debts; or
(d) Convenes, calls or holds ameeting of creditors; or
(e) Being an individual or a firmbecomes bankrupt ormakes any composition or scheme of arrangement with his creditors; or
(f ) Being a body corporate convenes, calls or holds ameeting for the purpose of going into liquidation (other than for the purpose of reconstruction or amalgamation) by the making of an order or the passing of a resolution for winding-up or becomes subject to an administration order; or
(g) The other party being a partnership–any of the above events occurs with respect to the partnership or to any partner therein; then:
– notwithstanding any previous arrangement with Elsoms for deferred payments, the full or full remaining price for any goods delivered by Elsoms shall become immediately due to it; and Elsoms shall have the right without prejudice to any other rights and remedies available to it, to cancel and/or suspend or to refuse to accept any further deliveries and/or to terminate the Contract at any time after becoming aware of any of the above circumstances providing that
– when exercising any of the above rights, Elsoms shall informthe Buyer of its intention to exercise such rights in writing within 28 days after the relevant occurrence.
(ii)Whenever any of these rights are exercised by Elsoms, Elsoms will not be liable to pay any compensation to the Buyer.
COMPLAINTS No complaint under the Terms can be considered unless clear proof can be given that the seed grown and alleged to have performed unsatisfactorily was in fact the seed supplied by us and that it was sown on suitably prepared ground treated carefully and correctly throughout and subject only to such conditions as were likely to produce a favourable crop.
ARBITRATION Any dispute under this Contract shall be referred to arbitration in accordance with the arbitration rules of the British Society of Plant Breeders Ltd, current at the date of the referral, which have been drawn up in consultation with and approved by the National Farmers’ Union of England andWales, the National Farmer’s Union of Scotland and the Ulster Farmers’ Union. All parties shall inmaking this Contract be deemed to have knowledge of such rules and to have elected to be bound thereby.
Copies of the arbitration rules can be obtained fromBritish Society of Plant Breeders Ltd,Woolpack Chambers, 16 Market Street, Ely, Cambridgeshire, CB7 4ND or can be seen on our website.
ACCEPTANCE OF TERMS The giving or sending of an order to us constitutes an acceptance of the Terms by the Buyer who, if he/she does not accept the Termsmust return the goods forthwith.
LIMITATION OF LIABILITY In the event of any goods supplied by us not complying with the terms of the Contract or of any goods proving defective (whether as regards purity or germination or otherwise) we will at our option replace the goods free of charge to the Buyer or will refund all paymentsmade to us by the Buyer in respect of the defective goods and this will be the limit and the sole extent of our obligation. Save as set out in this clause above we hereby exclude all liability whatsoever (whether based on negligence by us or our employees, suppliers, sub-contractors or agents or otherwise) for any loss expense or damage whether direct or consequential arising in any way whatsoever in connection with any goods supplied by us whether due to any failure in the performance of or any defect in any such goods or otherwise howsoever. In accordance with the established customof the seed and horticultural trade any express or implied condition statement or warranty statutory or otherwise whatsoever not expressly stated in the Terms is excluded. The price of all goods sold by us is based upon the foregoing limitations upon our liability and would bemuch greater if a more extensive liability were required to be undertaken by us. In accepting the goods upon these conditions the Buyer acknowledges that the limitation of Elsoms liability is fair and reasonable.
GENERAL If any provision of the Terms is held by a Court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Terms and the remainder of the provision in question shall not be affected.
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 The parties acknowledge that it is not their intention that any third party shall be entitled to enforce any termof the Contract whichmay confer a benefit on that third party whether any such entitlement would, but for this provision, arise under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
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