Whittal Seeds Ltd (The Seller)

1 Conditions applicable

• These conditions shall apply to the sale of goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order confirmation of order or similar document.
• All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these conditions.
• Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.
• Any variation to these conditions (including any special terms and conditions agreed between the parties shall be inapplicable unless agreed by the Seller.

2. Product standard

2.1 All seed sold by the Seller shall comply at the time of delivery with either the UK Seeds Regulation currently in force or the minimum standards of the relevant European Union Seeds Directives unless otherwise stated.

2.2 Any advice given by employees or agents of the Seller are approximations and given for general guidance only. Variations in climate conditions could render such advice inaccurate. The Buyer is advised that any such information does not constitute a representation by the Seller and should not be relied on as such. The Seller does not give any warranty that the Goods are fit for the Buyer’s purpose (whether or not that purpose has been made known to the Seller) and the Buyer must satisfy itself that any Goods ordered are of a variety and performance (including, but not limited to, purity) satisfactory for its requirements.

2.3 Where specially treated or tested Goods are offered, the Seller warrants only that the treatment or testing to the specification quoted has been carried out, but gives no warranty or representation as to the effects or implications of such treatments or testings. In the case of pelleted Goods the Seller relies on the expertise of the pelleter and can offer no guarantee beyond what the Seller receives from the pelleter.

2.4 Where the Goods have been treated with a liquid or powder to control pests and disease, or have been fumigated or pelleted, the purity and germination results may be based on tests made before or after the treatment.

3 Availability of Goods

3.1 orders are accepted by the Seller subject to Goods of the contract description being available to the Seller at the time delivery is required as to which the Seller accepts no obligation. If the Seller’s production contracts with third parties do not produce sufficient quantities of Goods of the contract description to meet the Seller’s requirements, the Seller shall not be under any obligation to purchase Goods from alternative sources of supply.

3.2 if the Seller has insufficient Goods of the contract description available to meet all its requirements, the Seller shall be entitled to allocate such Goods as are available to it in such quantities and to such Buyer or Buyers as it shall in its absolute discretion determine, or in the case of a grass mixture, to alter the contents of such mixture.

3.3 The Buyer shall pay pro-rata for any partial delivery of the Goods ordered. If the Seller in unable to deliver any Goods to the Buyer the contract for the sale thereof shall terminate without any further liability on either party. The Seller shall use all reasonable endeavours to notify the Buyer at the earliest opportunity of any shortages or non-availability of Goods.

3.4 Quotations for mixtures of seed are given in the belief that the varieties stated are freely available in good quality and at reasonable cost. The Seller reserves the right to substitute comparable alternative varieties if in its judgement it is desirable or necessary to do so. Any such changes will be shown either on the packaging or the invoice.

4 Price and Payment

4.1 All prices are quoted exclusive of value added tax.

4.2 The Seller reserves the right to increase the price to reflect the imposition of or increase in any tariff or tax and in the case of imported Goods any variation of exchange rates after the date of acceptance unless otherwise agreed in writing.

4.3 Payment for the Goods shall be made in full by the Buyer within twenty-eight days of despatch unless agreed in writing.

4.4 If payment is not made in full by the due date, the Seller reserves the right to charge interest on the price or part unpaid thereof from the date until paid in full at a rate of two per cent per annum above the base lending rate of Barclays.Bank plc. Alternatively, the Seller reserves the right to collect any credit charges due on late payments, where these are included on the related invoices.

4.5 The Seller reserves the right to cancel any order or suspend delivery if in the Seller’s sole opinion it considers that any of the Buyer’s obligations may not be met and the Seller reserves the right to require immediate payment at any time.

4.6 Any sums due to the Seller will become immediately due and payable if the Buyer being an individual shall die or commit an act of bankruptcy or make any arrangement or composition with his creditors or being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a received administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if any petition for the appointment of an administrator is presented against the Buyer or if the Buyer shall suffer any analogous proceedings under foreign law.

5 Delivery and Risk

5.1 Delivery dates are approximate only and time shall not be of the essences unless agreed in writing.

5.2.1 The Goods shall be delivered to the Buyer at the address specified by the Buyer. The risk in the Goods shall pass to the Buyer upon such delivery taking place.

5.2.2 Unless otherwise agreed the Seller shall arrange for carriage of the Goods to the Buyer’s address. The costs of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer and shall be due on the date for payment of the price. The carrier shall be deemed to be the Buyer’s agent.

5.3.1 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with these conditions.

5.3.2 No failure of or delay in delivery of any instalment nor any defect in the Goods the subject thereof shall entitle the Buyer to treat the Sale Contract as repudiated.

5.4.1 Unless otherwise agreed in writing pallets, shall be returned or paid for within twenty-eight days. Alternatively in case of delivery on pallets, suitable pallets may be exchanged at the time of delivery.

5.4.2 The Buyer shall indemnify the Seller against all losses resulting from non-payment for or non-return of pallets.

6 Title

6.1 In spite of delivery having been made, the ownership of the Goods shall not pass from the Seller until:

6.1.1 the Buyer has paid the price plus VAT in full and:

6.1.2 no other sums whatever shall be due from the Buyer or the Seller.

6.2 Until ownership of the Goods passes to the Buyer in accordance with clause 6.1 the Buyer shall hold the Goods on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other Goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.

6.3 The Seller shall be entitled to recover the price plus VAT notwithstanding that ownership of any Goods has not passed from the Seller.

6.4 Until such time as ownership in the Goods passes from the Seller shall upon request deliver up such of the Goods as have not ceased to be in existence or re-sold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and re-possess the Goods.

6.5 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.

7 Force majeure

The Seller will not be responsible for any loss or damage whatsoever caused through its ability to fulfil or delay in fulfilling any order due to any circumstances or occurrences beyond its control. In the event of such inability or delay the Seller shall be entitled after a reasonable period of time to determine the Contract wholly or in part cancelled, without incurring any liability whatsoever.

8 Claims

8.1 Claims by the Buyer based upon those defects of quality, quantity or condition which ought to be apparent upon examination should be notified to the Seller by telephone or written transmission and written confirmation dispatched within five business days of delivery of the Goods to the destination to which they have been consigned. If the Goods are damaged in transit it is essential delivery sheets be marked ‘damaged in transit’.

8.2 The Buyer shall not be entitled to make any claim unless the Goods have been properly and appropriately stored during the period after arrival at their destination. The Buyer shall also take all necessary and reasonable measures to mitigate damage or loss without any prejudice to any claim of either party.

8.3 No complaint can be considered unless there is clear evidence that the seed sown and alleged to have performed unsatisfactorily was in fact supplied by the Seller and that it was sown on suitable prepared ground treated carefully and correctly throughout and subjected only to such conditions as were likely to produce a favourable crop.

8.4 Some seed sold by the Seller is chemically treated to control pests and diseases. The Buyer shall strictly observe the precautions detailed on the packaging in default of which the Seller will accept no complaint.

8.5 Latent defect – diseases of plants can be transmitted by wind, insects, animals or by human agency and may be seed borne or soil borne. The Seller believes the Goods to be free from latent defects but it is not a condition of sale nor does the Seller warrant that any Goods sold shall be free from such defect and in consequence will not be responsible for the resultant crop.

9 Seller’s liability

9.1 The Seller warrants that the Goods supplied shall be the species and type specified in the Contract.

9.2 In the event that any Goods supplied by the Seller do not comply with the express terms of the Contract, the Seller will at its option replace the Goods free of charge to the Buyer or will refund all payments made to the Seller by the Buyer and this shall be the limit of the Seller’s obligations.

9.3 The Seller excludes all liability whatsoever for any defects in the Goods which could not reasonably have been discovered by the Seller prior to delivery, for any defects in the Goods occurring without any negligence on the part of the Seller and for any lack of effectiveness of any chemical treatment of the Goods.

9.4 all liability is excluded for any loss or damage arising from the use of the Goods and for any consequential loss or damage arising out of such use or any failure in the performances of or any defect in any Goods supplied and for any loss or damage including, without prejudice to the generality thereof, any total or partial failure of the resultant crop.

9.5 The price of Goods is based on the foregoing limitations upon the Seller’s liability.

10 Multiplication

Unless otherwise expressly agreed in writing by the Seller seed is sold for the production of consumer crops and not for the multiplication of seeds.

11 Arbitration

11.1 All international trade and deliveries to and from a country outside the UK are subject to the rules of the International Seed Federation.

11.2 Any dispute shall be referred to arbitration in accordance with the rules of the Arbitration Service of the British Society of Plant Breeders. All parties to the Contract shall be deemed to have knowledge of such rules and to have elected to be bound thereby.

11.3 Arbitration proceedings shall be commenced as regards claims relating to quantity or quality within twenty-eight days from the date of arrival of the Goods at their ultimate destination and as regards technical claims within ninety days of delivery.

12 Health and Safety

12.1 The Buyer shall take all necessary steps to ensure that the Goods are safe and without risk to health when properly used in accordance with instructions or information supplied to the Buyer.

12.2 The Buyer shall indemnify the Seller against all costs, claims, demands, expenses and liabilities of whatsoever nature other than in respect of death or personal injury arising out of or in connection with the sale of the Goods or the use or possession thereof by the Buyer.

13 Governing Law

The construction validity and performance of this Contract and all matters pertaining thereto shall be governed in all respects by English Law and subject to the jurisdiction of the English Courts.

14 Genetically Modified (GM) Seed

The seeds supplied with this delivery are of conventional varieties bred from parent plants which have not been genetically modified. All reasonable steps have been taken to prevent the adventitious presence of GM material during breeding, production and handling of this seed (including complying with any separation distances as may be recommended from time to time by relevant bodies) and appropriate batch samples have been tested to ensure compliance with the relevant seed legislation. This seed is field-grown. Accordingly, no guarantees of absolute freedom from GM impurities can be given since this does not, and cannot, exist in nature. No liability is accepted for any damage whatsoever arising from the possible occurrence of any adventitious traces of GM impurities in the seed.