Conditions of Sale of Hawkesmill Nurseries Co Limited

Your attention is drawn in particular to the provision of clause 7.

  1. DEFINITIONS
    In these conditions:
    1. "we"us"our" means or is a reference to Hawkesmill Nurseries Co. Limited (company number 1303304) and "you" or "your" means or is a reference to the person who accepts our quotation for the supply of goods or services by us or whose order for supply of goods of services we accept
    2. References to "goods" means the goods (including any instalment of the goods or any part of them) which we are to supply you in accordance with these conditions
    3. References to "services" means the services which we are to supply in accordance with these conditions in connection with the goods
    4. References to "contract" means the contract for the sale and purchase of the goods or the supply of the services
  2. CONDITIONS APPLICABLE
    1. These conditions shall apply to all contracts for the supply of goods or services by us to you to the exclusion of all other terms and conditions including any terms or conditions which you purport to apply under any purchase order confirmation of order or similar document.
    2. All orders for goods or services shall be deemed to be an offer by you to purchase goods or services pursuant to these conditions. You are responsible for ensuring that the terms of the order are complete and accurate.
    3. Acceptance of delivery of the goods or the supply of services shall be deemed conclusive evidence of your acceptance of these conditions
    4. Any variation of these conditions (including any special terms and conditions agreed between us and you) shall be inapplicable unless agreed in writing by us
    5. The Contract constitutes the entire agreement between the parties. You acknowledge that you have not relied on any statement, promise or representation made or given by you or on behalf of us which is not set out in the contract.
    6. We reserve the right to amend the specification of the goods, services and/or the contract if required by any applicable statutory or regulatory requirement
  3. PRICE
    1. The price of the goods or the services shall be the price we quote or confirm to you in writing
    2. All prices quoted are valid for 28 days only or until earlier acceptance by you after which time they may be altered by us without giving notice to you.
    3. We reserve the right by giving notice to you at any time before delivery to increase the price of the goods or services to reflect any increase in the cost to us which is due to any factor beyond our control (such as without limitation any foreign exchange fluctuation currency regulation alteration of duties significant increase in the cost of labour materials or other costs of manufacture) any change in delivery dates quantities or specifications for the goods or services which you request or any delay caused by instructions given by you or your failure to give us adequate information or instructions
    4. Unless otherwise stated under the terms of any quotation or in our price list and unless otherwise agreed in writing between you and us all prices are given by us on an ex-works basis and where we agree to deliver any goods otherwise than at our premises you will be liable to pay in addition our charges for transport packaging and insurance
    5. The price is exclusive of any applicable Value Added Tax which you shall be additionally liable to pay to us
    6. The price is exclusive of any charges, handling fees or similar liabilities incurred by us as a result of you paying by debit card or credit card, which you shall be additionally liable to pay to us
    7. The cost of pallets and returnable containers will be charged to you in addition to the price of the goods but full credit will be given to you provided they are returned undamaged to us before the due payment date
  4. PAYMENT
    1. We shall be entitled to invoice you for the price of the goods and services on or at any time after delivery or supply of goods or services unless the goods are to be collected by you or you wrongfully fail to take delivery of the goods or wrongfully prevent the supply of services by us in which event we shall be entitled to invoice you for the price at any time after we have notified you that the goods are ready for collection or (as the case may be) we have tendered delivery of the goods or the supply of the services
    2. You shall pay the price of the goods and the services (without making any deduction set off or counterclaim) within 28 days of the date of our invoice and we shall be entitled to recover the price notwithstanding that delivery of the goods or the supply of services may not have taken place and the property in the goods have not been passed to you
    3. The time for payment of the price shall be of the essence of the contract
    4. If you fail to make any payment on the due date then without prejudice to any other right or remedy available to us
      we shall be entitled to:
      1. cancel the contract or suspend any further deliveries to you;
      2. appropriate any payments made by you to such of the goods or services (or the goods or services supplied under any other contract between you and us) as we may think fit (notwithstanding any purported appropriation by you); and
      3. we may charge you interest (both before and after any judgement) on the amount unpaid at the rate of 2.5% per month above the base rate of the Bank of England until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest)
    5. In any case where goods are to be delivered by instalments delivery of each instalment shall for the purposes of payment constitute a separate contract
    6. Any payment you make to us by debit card or credit card may be subject to an additional charge which will be invoiced to you and for which shall be liable
  5. DELIVERY
    1. Delivery of goods shall be made by you collecting them at our premises at any time after we have notified you that the goods are ready for collection or if some other place for delivery is agreed by us delivering the goods to that place
    2. Any dates quoted for delivery of the goods or the supply of services are approximate only and we shall not be liable for any delay in delivery of the goods or the supply of services however caused. Time for delivery shall not be of the essence of the contract unless previously agreed by us in writing. The goods or services may be delivered or supplied by us in advance of the quoted delivery or supply date upon our giving reasonable notice to you
    3. Where delivery of the goods is to be made by us in bulk we reserve the right to deliver up to 5% more or 5% less than the quantity ordered without any adjustment in the price and the quantity so delivered shall be deemed to be the quantity ordered
    4. Where goods are to be delivered in instalments each delivery, shall constitute a separate contract and failure by us to deliver any one or more of the instalments in accordance with these conditions or any claim by you in respect of any one or more instalments shall not entitle you to treat the contract as a whole as repudiated
    5. If we fail to deliver the goods (or any instalment) or fail to supply the services for any reason other than due to a cause beyond our reasonable control or your fault and we are accordingly liable to you our liability shall be limited to the duress (if any) of the cost to you (in the cheapest available market) of similar goods or services to replace those not delivered or supplied over the price of the goods and the services
    6. If within 5 working days of us notifying you that the goods are ready you fail to take delivery of the goods, or fail to give us adequate delivery instructions to allow is to deliver the goods within five working days of them being ready (otherwise than by reason of any cause beyond your reasonable control or by reason of our fault), then without prejudice to any other right or remedy available to us we may:
      1. store the goods until the actual delivery and charge you all reasonable related costs and expenses (including insurance) of storage; or
      2. sell the goods at the best price readily obtainable and (after deducting reasonable storage and selling expenses) account to you for the excess over the price under the contract or charge you for any shortfall below the price under the contract
    7. It is your responsibility to ensure that we are provided with safe and adequate means of access to the place of delivery and that our contractors’ vehicles are off-loaded in a manner required by us or our contractors within a reasonable time and that if requested by us or our contractors assistance is provided to unload delivery vehicles. If you fail to comply with these responsibilities we may at our discretion deem that you have failed to take delivery of the goods or levy a charge for any excess standing time
  6. RISK AND PROPERTY
    1. Risk of damage to or loss of the goods shall pass to you:
      1. in the case of goods to be delivered at our premises at the time when we notify you that the goods are available for collection, or
      2. in the case of goods to be delivered otherwise than at our premises at the time of delivery or if you wrongfully fail to take delivery of the goods the time when we have tendered delivery of the goods
    2. In spite of delivery and the passing of risk in the goods the property in the goods shall not pass to you until:
      1. you have paid the price plus VAT (and any other applicable charges) in full; and
      2. no other sums whatever shall be due from you to us
    3. Until such time as the property in the goods passes to you, you shall hold the goods and each of them on fiduciary basis as bailee for us. You must store the goods (at no cost to us) separately from all other goods in your possession and marked in such a way that they are clearly identified as our property (but you shall be entitled to resell or use the goods in the ordinary course of your business) and you must maintain the goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery
    4. Until such a time as the property in the goods passes to you we shall be entitled at any time to require you to deliver up to us such of the goods as have not ceased to be in existence or resold. If you fail to do this immediately we shall have the right to enter your premises or the premises of any third party where the goods are stored and repossess the goods
    5. You shall not pledge or in any way charge by way of security for any indebtedness any of the goods which remain our property and if you do so all monies owing by you to us shall (without prejudice to any other right or remedy we may have) become due and payable immediately
  7. WARRANTIES AND LIABILITY
    1. Subject to the conditions set out below we warrant that the goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 6 months from the date of delivery or such longer period as we may confirm in writing and that the services will be performed by appropriately qualified and trained personnel with due care and diligence
    2. The above warranty at clause 7.1. is given by us subject to the following conditions:
      1. We shall be under no liability in respect of any defect in the goods or services arising from any brochure, design or specification supplied by you
      2. We shall be under no liability in respect of any defect arising from fair wear and tear wilful damage negligence abnormal working conditions failure to follow our instructions (whether oral or in writing) misuse or alteration or repair of the goods without our approval
      3. We shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the goods and services has not been paid by the due date for payment
      4. The above warranty does not extend to parts materials or equipment not manufactured by us in respect of which you shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to us
    3. Nothing in these conditions shall limit of exclude our liability for:
      1. death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
      2. fraud or fraudulent misrepresentation;
      3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
      4. defective products under the Consumer Protection Act 1987
    4. Subject to clause 7.3.:
      1. we shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the contract; and
      2. our total liability to you in respect of all other loses 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 price of the goods or services supplied to you under the relevant contract.
    5. If the goods and services are supplied to you as a consumer (as defined by the Enterprise Act 2002) your statutory rights are not affected by these conditions
    6. If you make a claim based on any defect or the quality or condition of the goods or services or their failure to correspond with specification you must (whether or not you refuse delivery) notify us within 7 days from the date of delivery or supply or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If you do not give us notification within the specified time and you do not allow us a reasonable opportunity of examining such goods you will not be entitled to reject the goods or services and we shall not be liable for such defect or failure and you will be bound to pay the price as if the goods and services had been delivered in accordance with the contract
    7. If you make a claim based on a shortage in the goods supplied you must notify us within 7 days from the date of delivery or if sooner within the time limit specified in the conditions of the carrier of the goods for the notification of claims. If you do not give us notification within the time specified you will not be entitled to reject the goods and we shall have no liability for short delivery and you will be bound to pay the price as if the goods had been delivered in accordance with the contract
    8. Where any valid claim in respect of any of the goods or services which is based on any defect in the quality, quantity or condition of the goods or services or their failure to meet specification is notified to us in accordance with these conditions we shall be entitled to replace the goods (or the part in question) or effect repairs free of charge or at our sole discretion refund to you the price of the goods or services (or a proportionate part of the price) but we shall have no further liability to you
    9. We shall not be liable to you for any failure or delay in performing our obligations under the contract to the extent that such failure or delay is caused by a “Force Majeure Event”. A Force Majeure Event means any event beyond our reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving our own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, natural or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors
    10. You must at all times:
      1. comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;
      2. comply with our anti-corruption and bribery policy;
      3. not engage in any activity, practice or conduct which would constitute an offence under section 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; and
      4. promptly report to us any request or demand for any undue financial or other advantage of any kind received by, or offered to you, in connection with the performance of the contract
  8. INTELLECTUAL PROPERTY
    1. All goods sold in retail packaging may be resold by you only in the packaging supplied by us and in no circumstances may be trademark other than those applied by us to be marked on or applied in relation to the goods
    2. No right or licence is granted under the contract to you under any patent trademark copyright registered design or other intellectual property right except the right to use or resell the goods
    3. The specification and design of the goods (including the copyright design right or other intellectual property in them) shall remain our property. Where you have supplied to us any designs or specification for the manufacture of the goods you warrant to us that use of those designs or specifications for the manufacture processing assembly or supply of the goods shall not infringe the rights of any third party and you will indemnify us in relation to any claim arising out of breach of this warranty
  9. SURPLUS GOODS
    1. If you purchase goods based on any estimate we have given as to the quantity you may require unless we have otherwise agreed in writing we shall be under no obligation to retain take back or give credit for any goods which you have purchased surplus to you actual requirements
    2. You are solely responsible for the accuracy of the quantities of goods purchased and we shall be under no obligation to retain take back or give credit for goods purchased in excess of your requirements. If in our absolute discretion we do agree to the return of any excess goods we shall do so on the basis that no precedent or course of dealing is established and we reserve the right to make a handling charge to cover our costs
  10. INSOLVENCY
    1. This clause applies if:
      1. you make any voluntary arrangement with your creditors or (if you are an individual or firm) you become bankrupt or (if you are a company) you become subject to an administration order or you go into liquidation (otherwise than for the purposes of amalgamation or reconstruction:; or
      2. an incumbrancer takes possession or a receiver is appointed of any of your property or assets; or
      3. you cease or threaten to cease to carry on business; or
      4. we reasonably apprehend that any of the events mentioned above is about to occur in relation to you and we notify you accordingly
    2. If this clause applies then without prejudice to any other right or remedy available to us we shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to you and if the goods have been delivered but not paid for the price shall become immediately due and payable due and payable in spite of any previous agreement or arrangement to the contrary
  11. GOVERNING LAW/MISCELLANEOUS
    1. The contract is subject to the laws of England and Wales
    2. All disputes arising out of this contract shall be subject to the exclusive jurisdiction of the courts of England and Wales
    3. A person who is not a party to the contract shall not have any rights under or in connection with it
    4. Notices:
      1. Any notice or other communication given to a party under or in connection with the contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, or fax
      2. A notice or other communication shall be deemed to have been received if delivered personally, when left at the address referred to in clause 11.4(a); if sent by pre-paid first class post or recorded delivery, at (9.00am on the second working day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, one working day after transmission
      3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
    5. Severance:
      1. If any court or competent authority finds that any provision of the contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the contract shall not be affected
      2. If any invalid, unenforceable or illegal provision of the contract would be valid, enforceable and legal if some part of it were deleted the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable
    6. A waiver of any right or remedy under the contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such a right or remedy shall preclude or restrict the further exercise of that or any other right or remedy
    7. Assignment and subcontracting
      1. We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights or obligations under the contract
      2. You may not assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the contract without our prior written consent
Contact Hawkesmill

Contact Us

Address:
Honiley Road
Fen End
Nr Kenilworth
Warwickshire
CV8 1NQ

Tel: 01676 532334
Fax: 01676 535088

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