In these conditions the following words have the following meanings unless the context requires otherwise.
“Seller” means Highlight Horticulture Limited, a company registered and incorporated in England and Wales with company number 07543303 whose registered address is at The Willows, Ransom Wood Business Park, Southwell Road West, Rainworth, Mansfield, Nottinghamshire, United Kingdom, NG21 0HJ;
“Contract” means any contract between the Seller and the Buyer incorporating these conditions for the sale of Products;
“Buyer” means the person who accepts a quotation from the Seller or whose order for Products is accepted by the Seller;
“Delivery Location” means the delivery location agreed in the Contract to which the Seller will arrange delivery of the Products;
“Losses” means any and all losses, lost profits, damages, claims, proceedings, actions, awards, expenses, costs (including increased administration costs and legal costs on a full indemnity basis) and any other liabilities; and
“Products” means any products or goods ordered from the Seller by the Buyer or to be supplied by the Seller to the Buyer.
2.1 These conditions shall govern the agreement between the Seller and the Buyer to the exclusion of any other terms or conditions.
2.2 Orders placed by the Buyer leading to a contract which is not expressed to be subject to these conditions shall still be subject to them.
2.3 These conditions supersede all previous terms and conditions and shall replace any terms and conditions previously notified to the Buyer.
2.4 No variation to these conditions shall be binding on the Seller unless contained in the Seller’s quotation or agreed in writing between the authorised representatives of the Seller and Buyer.
2.5 The Seller’s employees, sub-contractors and agents are not authorised to make any representations or warranties concerning the Products unless confirmed by the Seller in writing.
2.6 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Products, which is not confirmed in writing by the Seller, is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not confirmed in writing.
2.7 The Buyer acknowledges that it does not rely on any representation and/or warranty which has not been made in accordance with these conditions.
3.1 Quotations are not binding or capable of acceptance and are estimates only (unless stated otherwise) shall be valid for a period of 14 days. Quotations may be withdrawn by the Seller at any time during this period by oral or written notice.
3.2 The Seller shall have the right to refuse to accept any orders placed for Products.
3.3 The Buyer shall be responsible for the accuracy of an order and for giving the Seller any necessary information relating to the Products within a sufficient time to enable the Seller to perform the Contract.
3.4 The Contract between the Seller and the Buyer shall come into effect on the Company’s acceptance of the Customer’s order.
3.5 No order for Products shall be deemed accepted by the Seller until confirmed in writing by the Seller’s authorised representative.
3.6 If the Buyer cancels this Contract for any reason it shall have no further recourse against the Seller under this Contract.
4.1 The Company will use its reasonable endeavours to ensure delivery to the Delivery Location on the date specified in the Contract.
4.2 Dates for delivery are estimates only and are not guaranteed. Time is not of the essence in relation to such dates, they are also subject to any matter beyond the Seller’s reasonable control.
4.3 Delivery is completed on the arrival of the Products at the Delivery Location.
4.4 Where Products are to be delivered in instalments, each delivery shall constitute a separate and distinct contract and failure by the Seller to deliver, or any claim by the Buyer in respect of, any instalment shall not entitle the Buyer to repudiate and/or terminate this Contract as a whole.
4.5 The Buyer shall have no right to reject Products and shall have no right to rescind for late delivery unless the due date for delivery has passed and the Buyer has served on the Seller a written notice requiring the Contract to be performed and giving the Seller not less than 14 days in which to do so and the notice has not been complied with.
4.6 The Seller shall not be required to fulfil orders for Products in the sequence in which they are placed.
4.7 The Buyer shall be responsible at its own cost for all arrangements to unload the Products when delivered to the Customer. Normally delivery will be made between 9.00am and 5.30pm on working days.
4.8 The Buyer shall procure during normal working hours and days that the Seller has free right of access to the address for delivery for the purpose of delivering the Products.
4.9 If the Buyer refuses to take delivery of any Products or fails to give adequate delivery instructions or does not collect the Products within 3 working days where they are to be collected by the Buyer under the Contract then (except where due to the Seller’s fault), without prejudice to any other right or remedy available to the Seller, the Seller may:
4.9.1 store the Products until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
4.9.2 sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract; and
4.9.3 withhold delivery of any other Products and to treat the Contract as repudiated by the Buyer and the Seller shall have the right to rescind this Contract.
5.1 This clause 5 shall only apply where Products are supplied for delivery within the UK. The provisions of this clause 5 shall (subject to any special terms agreed in writing between the Seller and Buyer) apply, despite any other provision of these conditions.
5.2 Unless otherwise agreed in writing, Products supplied for delivery within the UK shall be delivered DDP (Incoterms 2020) to the Delivery Location.
5.3 The cost of delivery shall be charged to the Buyer in addition to the cost of the Products unless the value of the Products ordered reaches or exceeds the value set by the Seller to qualify for free delivery within the UK.
5.4 If the Buyer refuses or fails to take delivery of the Products for any reason and the Products are returned to the Seller in original condition the Seller may at its sole option cancel the order and refund to the Buyer the price paid for the Products or resell the Products on the Buyer’s account and account to the Buyer for any proceeds of sale after deducting any costs of sale and any outstanding balance of the price for the Products.
If this value is a negative value then the Buyer shall be liable to immediately pay to the Seller the outstanding balance.
6.1 This clause 6 shall only apply where Products are supplied for export from the UK. The provisions of this clause 6 shall (subject to any special terms agreed in writing between the Seller and Buyer) apply, despite any other provision of these conditions.
6.2 Unless otherwise agreed in writing, Products supplied for export from the UK shall be delivered DAP (Incoterms 2020) to the Delivery Location.
6.3 The cost of delivery shall be charged to the Buyer in addition to the cost of the Products for all sales where the Delivery Location is outside the UK.
6.4 If the Buyer refuses or fails to take delivery of the Products for any reason (including but not limited to issues with the import of the Products into the country of the Delivery Location or any intermediate country on route to the Delivery Location) and the Products are returned to the Seller in original condition the Seller may at its sole option cancel the order and refund to the Buyer the price paid for the Products or resell the Products on the Buyer’s account and account to the Buyer for any proceeds of sale after deducting any costs of sale and any outstanding balance of the price for the Products.
If this value is a negative value then the Buyer shall be liable to immediately pay to the Seller the outstanding balance.
6.5 The Buyer shall be solely responsible for obtaining all import authorisations for the Products and paying all import duties and taxes and associated fees for the import of the Products.
7.1 The Seller may comply with reasonable requests by the Buyer for postponement of delivery of the Products which are received before despatch of the Products but shall be under no obligation to do so.
7.2 Where delivery of the Products is postponed at the Buyer’s request then the Buyer shall pay all costs and expenses of the Seller incurred as a result including reasonable charges for storage, transportation and insurance. In addition the Buyer shall be obliged to pay for the Products as if delivery had not been postponed. The duration of any such postponement shall be at the Seller’s absolute discretion.
8.1 The price of the Products shall be the Seller’s quoted price or, where no price has been quoted, the price in the Seller’s price list at the date of the acceptance of the order.
8.2 The Seller may, by giving not less than 7 working days’ notice to the Buyer, increase the price of the Products prior to despatch to reflect any increase in the cost to the Seller which is due to:
8.3 The Buyer may cancel without liability any Contract in relation to which the price is to be increased provided that the notice of cancellation is received by the Seller no less than 2 working days before the scheduled date for despatch of the Products.
8.4 If the Buyer does not cancel the Contract for the provision of the Products within the specified time period then the price increase shall take effect for the Products ordered by the Buyer.
8.5 The price of the Products excludes any applicable value added tax or other sales taxes which the Buyer shall be additionally liable to pay the Seller.
8.6 Payment of the price for Products is usually required before despatch of the ordered Products unless specifically agreed in writing by the Seller. Time for payment shall be of the essence.
8.7 If the Buyer fails to make any payment in full on the due date the Seller may charge the Buyer interest (both before and after judgment) on the amount unpaid at the rate of 4% above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis and be compounded with monthly rests.
8.8 Any monies received by the Seller from the Buyer may be applied by the Seller at its option against any additional administrative costs /or interest charged prior to application against any principal sums due from the Buyer against which it may be applied in any order.
8.9 The Seller shall be entitled to invoice each delivery of Products separately.
8.10 The Buyer shall pay all sums due to the Seller under this Contract without any set-off, deduction, counterclaim or any other withholding of monies.
8.11 Payment shall not be deemed to be made until the Seller has received either cash or cleared funds in respect of the full amount outstanding.
8.12 The Seller shall be entitled to render an invoice to the Buyer any time on or after the Buyer has ordered the Products.
8.13 If payment in full is not made to the Seller when due then the Seller may withhold or suspend future or current deliveries of the Products and delivery under any other agreement with the Buyer.
9.1 If the Seller does not require payment for the Products before despatch the Seller may set a reasonable credit limit for the Buyer.
9.2 The Seller reserves the right to refuse to accept orders for Products and to suspend or withhold delivery of Products if such Products would result in the Buyer exceeding its credit limit or the credit limit is already exceeded.
10.1 The Buyer may cancel delivery of the Products at any time up to 14 days before the due date for despatch, on condition that the Seller shall have no liability to the Buyer in relation to any Contract cancelled in accordance with this clause.
10.2 If the Buyer purports to cancel this Contract later than the above time limits or refuses to accept delivery of ordered Products the Buyer will indemnify and keep indemnified the Seller against any and all Losses suffered by the Seller as a result.
11.1 Any specification supplied by the Seller to the Buyer shall only be approximate unless stated on the Seller’s quotation or agreed in writing.
11.2 The quantity, quality, description and/or specification for the Products shall be that set out in the Seller’s quotation (if agreed by the Buyer) or the Buyer’s order (if agreed by the Seller).
11.3 The Buyer is responsible for checking the quotation and satisfying itself that any specification given is accurate and adequate for the Products.
11.4 If there is an error in the specification made by the Seller for the Buyer then, where that error is material and it has been relied upon by the Buyer, the Buyer may cancel that part of this Contract which is affected by the error without liability due to the cancellation.
11.5 Any clerical or other error or omission in any sales literature, quotation, and price list, acceptance of offer, invoice or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
11.6 The Seller shall have no liability for errors in any specification or details supplied by the Buyer and the Buyer is solely responsible for their accuracy.
11.7 Details and specifications in brochures and price lists produced by the Seller are intended as a guide only and only give a general approximation of the Products.
11.8 The Buyer agrees to indemnify and keep indemnified the Seller against any and all claims, losses, expenses, proceedings, actions, awards, liabilities, costs (including legal costs on a full indemnity basis and increased administration costs) and any other losses or liabilities arising out of the Seller’s use of specifications, details and drawings supplied by the Buyer.
11.9 The Buyer confirms and agrees that it has not relied upon the details and information contained in the Seller’s brochure unless it has sought and obtained written confirmation from the Seller of their accuracy.
11.10 The Seller reserves the right to make changes to the specification of the Products as required from time to time by law, applicable safety requirements or manufacturing requirements provided that they do not have a material adverse effect on the quality or performance of the Products.
11.11 If the Seller does make changes to the specification of the Products which have a material adverse effect then the Buyer shall have the right to cancel the Contract without liability.
12.1 The Buyer shall not make any modification to the Products or their packaging, nor alter, remove, or tamper with any trademarks used on or in relation to the Products.
12.2 All intellectual property rights (including without limitation all patents, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered), skill and know-how and other similar rights, whether existing now or in the future, wherever existing in the world together with the right to apply for protection of the same) in the Products shall be owned by the Seller or its suppliers absolutely.
12.3 Each party agrees with the other that it will keep all information relating to the Products and confidential business information regarding the other party confidential and not disclose or use such information which may be disclosed to it or which it may learn except where such information is in the public domain or it is required to be disclosed by law.
13.1 Risk in the Products shall pass to the Buyer at the time of delivery. Delivery shall be deemed to occur:
13.2 The Seller shall retain title and ownership of the Products until it has received payment in full in cash or cleared funds of all sums due or owing for the Products supplied to the Buyer by the Seller under this Contract.
13.3 Until payment in full of the price for all Products supplied to the Buyer, the Products shall be stored separately from any products or goods belonging to the Buyer or any third party and must be clearly marked and identified as being the Seller’s property. The Buyer agrees that the Seller’s employees or agents shall be entitled to enter the Buyer’s premises to check compliance with this clause.
13.4 Until title in the Products has passed to the Buyer, the Buyer shall keep the Products insured for the price at which the Products were sold to the Buyer against all normal risks and shall procure that the Seller is named on such policy of insurance as loss payee. The Buyer shall hold any proceeds of such policy of insurance in relation to the Products on trust for the Seller upon receipt of the same and account to the Seller for any proceeds of such policy of insurance in relation to the Products upon receipt of the same. Any monies received from the Buyer by the Seller in accordance with this clause shall not discharge the Buyer’s liability to pay the price for the Products plus interest but shall be set off against any such liability.
14.1 If the Buyer:
Then the Seller the rights and restrictions set out in clause 14.2 below shall apply, without prejudice to any other rights or remedies the Seller may have.
14.2 If any of the events set out in clause 14.1 above occurs in relation to the Buyer then:
15.1 The Seller guarantees that the Products will at the time of delivery:
15.2 The Seller shall not be liable for any defects in the Products due to any of the following events:
15.3 The Seller does not warrant or guarantee that Products will comply with all applicable statutory and regulatory requirements applicable to the Products in the country of the Delivery Location if it is outside the UK.
15.4 The Seller will at its option either refund the price, repair or replace free of charge any defective Products where the defect is apparent on inspection provided that the defect is notified to the Seller within 14 working days of delivery of such Products.
15.5 The Seller will at its option either refund the price, repair or replace free of charge any defective Products where the defect is a latent defect which existed at the time of delivery but was not apparent on inspection provided that the defect is notified to the Seller within 14 working days of discovery of the defect by the Buyer.
15.6 Any defective Products must be returned to the Seller for inspection if requested by the Seller before the Seller will have any liability for defective Products. If the Products shall prove to be defective and covered by the Seller’s guarantee then the Seller shall reimburse the Buyer for the cost of returning the defective Products.
15.7 The Seller will at its option either refund the price of or replace free of charge any Products missing from a delivery of Products provided that the missing items are notified to the Seller within 5 working days of delivery or, in the event of total non-delivery, this fact is notified to the Seller by the Buyer within 5 working days of the expected date of delivery.
15.8 Any work carried out by the Seller or any replacements which are not covered by the guarantee in clause 15.1 above will be charged for.
16.1 The Seller shall have no liability for any defect in the Products caused or contributed to as a result of the Products being used for display or demonstration purposes or being handled by customers of the Buyer.
16.2 The Seller shall have no liability for defective Products where the defect has been caused or contributed to by the Buyer.
16.3 The Seller shall have no liability to the Buyer if the price for the Products has not been paid in full by the due date for payment.
16.4 The Seller shall have no liability to the Buyer for defective Products, Products not despatched or Products damaged or lost in transit unless the event is notified to the Seller within the appropriate time limit set out in this Contract.
16.5 The Seller shall have no liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by the Buyer’s continued use of defective Products after a defect has become apparent or suspected or should reasonably have become apparent to the Buyer.
16.6 The Buyer shall give the Seller a reasonable opportunity to remedy any matter for which the Seller is liable before the Buyer incurs any costs or expenses in remedying the matter itself. If the Buyer does not do so the Seller shall have no liability to the Buyer.
16.7 The Buyer shall produce to the Seller evidence of any claims for which it is alleged that the Seller is liable together with written details of how the loss was caused by the Seller and the steps the Buyer has taken to mitigate the loss before the Seller shall have any liability for the claim by the Buyer.
16.8 The Seller shall have no liability to the Buyer to the extent that the Buyer is covered by any policy of insurance and the Buyer shall ensure that the Buyer’s insurers waive any and all rights of subrogation they may have against the Seller.
16.9 The Seller shall have no liability to the Buyer for any:
16.10 The Buyer shall be under a duty to mitigate any loss, damage, costs or expenses that it may suffer (including by maintaining an adequate stock of Products).
16.11 The Seller’s total aggregate liability to the Buyer is limited to an amount equal to 125% of the price paid for the Products under that Contract.
16.12 Each of the limitations and/or exclusions in this Contract shall apply to liability for breach of contract (including fundamental or repudiatory breach), liability for breach of duty of care (including negligence), liability for breach of statutory duty and any other legal basis of liability connected with the Contract or the supply of the Products.
16.13 Nothing in this Contract shall exclude or limit the liability of the Seller for death or personal injury due to its negligence or any liability which is due to the Seller’s fraud or any other liability which the Seller is not permitted to exclude or limit as a matter of law.
16.14 All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
16.15 The limitations in this Contract are necessary in order to allow the Seller to provide the Products at its current prices.
16.16 If the Buyer requires greater protection, then the Seller will agree to modify the limitations and extend its guarantees in return for the payment of a higher price for the Products.
17.1 The Buyer agrees to indemnify and keep indemnified the Seller against any and all Losses suffered by the Seller and arising from or due to any breach of contract, any breach of duty of care and/or any breach of statutory duty by the Buyer.
17.2 No waiver by the Seller of any breach of this Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
17.3 If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
17.4 The Seller shall have no liability to the Buyer for any delay in performance of this Contract to the extent that such delay is due to any events outside the Seller’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, strikes, lock-outs, shortages of supplies, product shortages, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events. If the Seller is affected by any such event, then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
17.5 The Buyer shall not assign its interest in the Contract (or any part) without the written consent of the Seller.
17.6 All third party rights are excluded and no third parties shall have any rights to enforce this Contract. This shall not apply to members of the Seller’s group from time to time who shall have the right to enforce this Contract. Any rights of a third party to enforce this Contract may be varied, rescinded and extinguished without the consent of such third party.
17.7 This Contract is governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.