EU Plants Ltd. SALES_T

EU PLANTS LIMITED - SALES TERMS AND CONDITIONS

1. DEFINITIONS

EU Plants: EU Plants Limited (company number 05168121) whose registered office is at Millets Farm, Garford, Abingdon, Oxfordshire, OX13 5PD, UK;

Conditions: these terms and conditions of sale of the Goods;

Confirmation: EU Plants’ written acceptance of an Order showing agreed terms of a sale transaction to which these Conditions apply;

Contract: the contract for the supply of Goods under these Conditions as confirmed and set out in a Confirmation;

Customer: a person who purchases Goods from EU Plants;

Goods: the plants and related goods that are set out in the Order;

Law: laws and regulations applicable to the Goods and the sale of the Goods in force from time to time; and

Order: the Customer’s oral, written, faxed or email form of proposal or offer submitted to EU Plants to supply certain quantities of Goods (terms of which may be varied by EU Plants in a Confirmation).

2. SALE AND PURCHASE

2.1. 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.

2.2. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. No Contract for a supply of Goods shall come into existence until EU Plants confirms the terms in a Confirmation.

2.3. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of EU Plants which is not set out in the Contract.

3. SUPPLY OF GOODS

3.1. EU Plants will use reasonable endeavours to supply the Goods but any delivery times stated in the Contract shall not be of the essence.

3.2. Unless otherwise stated in the Confirmation, the Customer shall collect the Goods at its own expense from EU Plants' premises or such other location as may be advised by EU Plants prior to delivery within 3 business days of EU Plants notifying the Customer that the Goods are ready. If EU Plants requires the Customer to return any packaging materials to EU Plants, that fact shall be clearly stated on the Confirmation or delivery note. The Customer shall make any such packaging materials available for collection at such times as EU Plants shall reasonably request. Returns of packaging materials shall be at EU Plants' expense.

3.3. If EU Plants fails to deliver the Goods, its liability shall be limited to the reasonable 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 (which means those events set out in clause 8.1) or the Customer's failure to provide EU Plants with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.4. Unless otherwise stated in the Confirmation, risk in the Goods passes to the Customer on the Goods leaving the gates of EU Plants’ premises irrespective of who is responsible for organising delivery or collection of the Goods.

3.5. Title of the Goods shall not pass to the Customer until EU Plants has received in full in cleared funds all sums due to it in respect of:

(a) the Goods under the Contract; and

(b) all other sums which are or which become due to EU Plants from the Customer.

3.6. Until title of the Goods has passed to the Customer, the Customer shall:

(a) hold the Goods on a fiduciary basis as EU Plants’ bailee;

(b) store the Goods separately from all other goods held by the Customer so they remain readily identifiable as EU Plants’ property;

(d) maintain the Goods in satisfactory condition and insure them on EU Plants’ behalf for their full price against all risks; and

(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 7.3.

3.7. Subject to clause 3.6, the Customer may use the Goods in the ordinary course of its business before title in the Goods has passed to the Customer.

3.8. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.3, or EU Plants reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold and without limiting any other right or remedy EU Plants may have, EU Plants may at any time require the Customer to deliver up the Goods 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.

3.9. On termination of the Contract, howsoever caused, EU Plants’ (but not the Customer's) rights contained in this clause 3 shall remain in effect.

4. PRICES AND PAYMENT

4.1. The prices to be paid by the Customer to EU Plants for any particular sales of Goods detailed in a Confirmation shall be contained within that Confirmation. Only prices expressly agreed by EU Plants shall apply.

4.2. The price of the Goods is inclusive of the costs and charges of packaging of the Goods.

4.3. EU Plants is entitled to invoice the Customer aggregating various Contracts.

4.4. The Customer shall pay the full amount due without deductions, counterclaim or set off invoiced to it by EU Plants in pounds sterling within 30 days of the date of EU Plants’ invoice.

4.5. If the Customer fails to pay EU Plants any sum due pursuant to the Contract, the Customer shall be liable to pay interest to EU Plants on such sum from the due date for payment at the annual rate under the Late Payment of Commercial Debts (Interest) Act 1998.

5. WARRANTIES

5.1. Except insofar as such exclusion is not permitted by Law, it is agreed that all terms implied by Law shall be excluded.

5.2. EU Plants warrants that on delivery:

(a) the Goods will materially comply with their description and quantity expressed in the Confirmation;

(b) the Goods are of reasonably satisfactory quality and fit for purpose; and

5.3. EU Plants accepts no liability for any latent defects in the Goods (being any disease, damage, pest or defect not discoverable by reasonable inspection on delivery) nor from any failure of the Goods to grow or crop.

5.4. Subject to clauses 5 and 6 of these Conditions, if:

(a) the Customer gives notice in writing to EU Plants within a reasonable time of discovery that some or all of the Goods do not comply with the warranties set out in clause 5.2;

(b) the Customer has paid to EU Plants all monies payable under relevant Contracts on or by the dates for payment specified therein;

(c) the Customer makes no use of the Goods in question after he discovers or ought reasonably to have discovered that some or all of the Goods do not comply with the warranties set out in clause 5.2;

(d) the Goods have not been subject to misuse, neglect, incorrect storage or damage by the Customer or any third party;

(e) EU Plants is given a reasonable opportunity to examine the Goods; and

(f) the Customer (if asked to do so by EU Plants) returns the Goods in question to EU Plants’ place of business at the Customer's cost,

then EU Plants shall, at its option, either replace the defective Goods as soon as reasonably practicable, or take back the Goods in question and refund the invoice value of the appropriate part of the consignment of Goods in question as described in the Confirmation.

5.5. Given the nature of the Goods it is reasonable that time shall be of the essence for claims made in respect of the quality of the Goods. The Customer shall report in writing (providing full details of the nature of the claim) for loss, damage or failed delivery of any Goods to EU Plants within 72 hours of receipt of the Goods (or in the case of failed delivery, within 72 hours of the delivery time stated on the Confirmation). All claims made thereafter shall be void and EU Plants shall have no liability for claims not notified to EU Plants within this time limit.

5.6. These Conditions shall apply to any replacement Goods supplied by EU Plants.

6. LIABILITY

6.1. Subject to clause 6.3 the total aggregate liability of EU Plants to the Customer arising out of or in connection (howsoever caused or arising) with the supply of Goods under the Contract (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) shall not exceed the invoice value of the consignment in question as described in the Confirmation.

6.2. Notwithstanding any other provision of this Agreement, but subject to clause 6.3, EU Plants shall not be liable to the Customer arising out of or in connection with Contracts accepted and supplied by EU Plants for:

(a) any loss of or damage to the following (whether such loss or damage is direct or indirect): (i) profit; (ii) revenue; (iii) savings; (iv) use; (v) contract; (vi) goodwill, or (vii) business; or

(b) any indirect or consequential financial loss or damage, in each case howsoever arising.

6.3. Nothing in this Agreement shall limit or exclude any party’s liability for fraud or death or personal injury caused by negligence, or any matter in respect of which it would be unlawful for EU Plants to exclude or restrict liability.

7. TERMINATION AND EFFECTS

7.1. Either party may give notice in writing terminating the Contract with immediate effect if the other party commits any material breach of any of these Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of the other party being notified of the breach.

7.2. If the Customer becomes subject to any of the events listed in clause 7.3, or EU Plants reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to EU Plants, EU Plants may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and EU Plants without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

7.3. For the purposes of clause 7.2, the relevant events are:

(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;

(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

(g) (being a company) the holder of a qualifying charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;

(h) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;

(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.3(a) to clause 7.3(h) (inclusive);

(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;

(k) the Customer's financial position deteriorates to such an extent that in EU Plants’ opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

8. FORCE MAJEURE

8.1. EU Plants’ obligations shall be suspended whilst it is prevented from compliance by any cause beyond its reasonable control including but not limited to strikes, labour disputes, act of God, war, riot, adverse weather conditions, civil commotion, malicious damage, contamination, excessive crop pests, crop disease, epidemics, compliance with any Law or regulation, interference by civil or military authorities, accident, breakdown of machinery and computer and telecoms systems, unlawful interference with computer and telecoms systems or cyber attacks, fire, flood, storm, natural disasters or extreme adverse weather conditions, difficulty or increased expense in obtaining workmen or materials or default of suppliers or subcontractors.

9. GENERAL

9.1. The Confirmation contains the entire understanding between the parties with respect to the subject matter of this Agreement.

9.2. No amendment of a Contract shall be effective unless in writing signed by a duly authorised representative of each of the parties.

9.3. The Customer shall not transfer any part of the Contract or its rights, nor sub-contract any or all of its obligations.

9.4. The failure of a party to exercise or enforce any right under the Contract shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of it at any time.

9.5. If any part of the Contract becomes invalid, illegal or unenforceable, the parties shall negotiate to agree the terms of a mutually satisfactory provision to be substituted for such part which as nearly as possible validly gives effect to their intentions as expressed in these Conditions or the Confirmation of a particular Contract.

9.6. Any notice 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.

9.7. A person who is not a party to a Contract has no right to enforce any term of it.

9.8. This Agreement shall be governed by and construed in accordance with English law and each party hereby irrevocably submits to the exclusive jurisdiction of the Courts of England and Wales.

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