1. Definitions

 

Seller                                        means GREENS & LEISURE LTD with registration number 12748189

Buyer                                        the person or company or organisation who buys or agrees to buy the Goods/and or Services from the Seller.

Conditions                                the terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the Seller.

Goods                                       the items which the Buyer agrees to buy from the Seller as set out in the Order.

Services                                    the services supplied by the Seller to the Buyer as set out in the Order.

Price                                         the price for the Goods and/or Services, excluding VAT, and any carriage, packaging and insurance costs.

Force Majeure Event                 has the meaning set out in clause 16.

Order                                        the Buyer’s order for the supply of Goods and/or Services, as set out by the Buyer’s purchase order OR the Buyer’s written acceptance of the Seller’s quotation OR the Buyer’s acceptance of the Seller’s services specification.

  1. Conditions

 

2.1       These Conditions shall form the basis of the contract between the Seller and the Buyer in relation to the sale of Goods and/or Services, to the exclusion of all other terms and conditions including the Buyer’s standard conditions of purchase or any other conditions which the Buyer may purport to apply under any purchase order or confirmation of order or any other document.

2.2       Acceptance of delivery of the Goods or commencement of the Services shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.

2.3       These Conditions may not be varied except by the written agreement of [a director of] the Seller.

2.4       These Conditions represent the whole of the agreement between the Seller and the Buyer. They supersede any other conditions previously issued.

  1. Price

 

3.1       The Price shall be the price quoted on the Order.

  1. Payment and Interest

4.1       Any invoice raised by the Seller will be subject to VAT.

4.2       Payment of the Price and VAT shall be due on the date of the Seller’s invoice.

4.3       The Seller will accept payments by BACS, credit card, or debit card.

4.4       The Seller’s invoice must be settled in full prior to the Seller supplying the Goods and/or Services.

4.5       Where the Seller, at their discretion, supplies Goods and/or Services prior to the Seller’s invoice being settled in full, the Seller’s invoice must be settled within 7 days of the invoice date.

4.6       Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of [8%] per annum above the Bank of England base rate from time to time in force. Such interest shall accrue after as well as before any judgment.

  1. Goods

 

5.1       The Goods are described in the Order.

5.2       The Seller reserves the right to amend or change the specification of the Goods if required by any applicable statutory or regulatory requirements.

  1. Warranties

 

6.1       The Seller warrants that for a period of 12 months commencing on the earlier of either the date of delivery of the Goods, or the commencement of the Services (Warranty Period) the Goods and/or Services will correspond to their specification subject to the following: –

6.2       the Company shall be under no liability in respect of: –

6.2.1  any defect in the Goods or Services arising from any design, drawing or specification supplied by the Customer;

6.2.2 any defect arising from fair wear and tear, wilful damage, negligence, abnormal conditions, failure by the Customer to follow the Company’s instructions, misuse alteration or repair of the Goods without the Company’s approval;

6.2.3  any defect if the total price of the Goods and Services has not been paid by the due date;

6.2.4. any failure or defect in any goods or materials, plant or fittings not manufactured by the Seller; or

6.3     The Seller warrants that the Goods shall:

6.1.1  conform with their description;

6.1.2  be of satisfactory quality with the meaning of the Sale of Goods Act 1979; and

6.1.4  be carried out in accordance with the Supply of Goods and Services Act 1982.

  1. Delivery of Goods

 

7.1       Carriage and handling will be chargeable on all sales.

7.2       All deliveries are to be kerb side only. Neither the Seller not the haulier used in delivering the Order will provide assistance in offloading the Goods.

7.3       The pallets and/or packaging used to contain the Goods is not warranted to be suitable for use with mechanical lifting equipment unless specified by the Seller.

7.4       Delivery of the Goods shall be made to the Buyer’s address OR an address nominated by the Buyer, provided that Buyer has informed the Seller of the nominated address prior to the dispatch of Goods. The Buyer shall make all arrangements necessary to take delivery of the Goods on the day notified by the Seller for delivery.

7.5       The Seller undertakes to use its reasonable endeavours to despatch the Goods on an agreed delivery date, but does not guarantee to do so. Time of delivery shall not be of the essence of the contract.

7.6       The Seller shall not be liable to the Buyer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the Goods.  If short delivery does take place, the Buyer may not reject the Goods but shall accept the Goods delivered as part performance of the contract, and a pro-rata adjustment to the Price shall be made.

  1. Acceptance of the Goods

 

8.1       The Buyer shall be deemed to have accepted the Goods 5 days after delivery to the Buyer.

8.2       The Buyer shall carry out a thorough inspection of the Goods within 5 days and give notice in writing to the seller after discovering that some or all of the goods do not comply with the Warranty above. The Buyer must return the Goods to the Seller at the Buyer’s cost and the Seller shall, at its option, repair or replace any Goods that are defective, or refund the price of such defective Goods.

8.3       Where the Buyer has accepted, or has been deemed to have accepted, the Goods the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.

 

  1. Title and risk

 

9.1       Risk shall pass on delivery of the Goods to the Buyer’s address.

9.2       Notwithstanding the earlier passing of risk, title in the Goods shall remain with the Seller and shall not pass to the Buyer until the amount due under the invoice for them (including interest and costs) has been paid in full.

9.3       Until title passes the Buyer shall hold the Goods as bailee for the Seller and shall store or mark them so that they can at all times be identified as the property of the Seller.

9.4       The Seller may at any time before title passes and without any liability to the Buyer:

9.4.1     repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Buyer’s right to use, sell or otherwise deal in them; and

9.4.2     for that purpose (or determining what if any Goods are held by the Buyer and inspecting them) enter any premises of or occupied by the Buyer.

9.5       The Seller may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Buyer.

  1. Order Cancellations and Returns

 

10.1     Where the Seller has carried out actions to fulfil the Order and the Seller subsequently cancels the Order a handling and restocking fee of 30% of the Price will become payable.

10.2     Notwithstanding 10.1, if materials have been cut to specific sizes in fulfilment of the Order and the Order is subsequently cancelled the whole Price will become due.

  1. Supply of Services

11.1      The Seller shall provide the Services to the Buyer.

11.2      The Seller shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

11.3      The Seller shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Seller shall notify the Buyer in any such event.

11.4      The Seller shall not carry out any work above 3m, including felling of trees, cutting of branches or clearing of climbing plants at or above this height.

  1. Buyer’s obligations

12.1      The Buyer shall:

12.1.1   Ensure that the terms of the Order are complete and accurate;

12.1.2   Co-operate with the Seller in all matters relating to the Services;

12.1.3   Provide the Seller, its employees, agents, consultants and subcontractors, with access to the Buyer’s premises as reasonably required by the Seller to provide the Services;

12.1.4   Provide the Seller with such information and materials as the Seller may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

12.1.5   Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and

12.1.6   keep and maintain all materials, equipment, documents and other property of the Seller at the Buyer’s premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller’s written instructions or authorisation.

12.2      If the Seller’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):

12.2.1   the Seller shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays the Seller’s performance of any of its obligations;

12.2.2   the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller’s failure or delay to perform any of its obligations as set out in this clause 12.2; and

12.2.3   The Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Buyer Default.

  1. Limitation of Liability

13.1      Nothing in these Conditions shall limit or exclude the Seller’s liability for:

13.1.1   death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

13.1.2   fraud or fraudulent misrepresentation;

13.1.3   breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);

13.1.4   breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or

13.1.5   defective products under the Consumer Protection Act 1987.

13.2      Subject to clause 13.1:

13.2.1   The Seller shall under no circumstances whatever be liable to the Buyer, 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

13.2.2   the Seller’s total liability to the Buyer in respect of all other losses 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 £5,000 OR the Price of the Order, whichever is greater.

13.3      After the Warranty Period, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

13.4      This clause 14 shall survive termination of the Contract.

  1. Termination of Services

14.1      Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than one 30 days’ written notice.

14.2      Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

14.2.1   the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within fourteen (14) days after receipt of notice in writing to do so;

14.2.5   the other party’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

14.3      Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under this Contract on the due date for payment.

14.5      On termination of the Contract for any reason:

14.5.1   the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt;

14.5.2   The Buyer shall return all of the Seller Materials and any Deliverables which have not been fully paid for. If the Buyer fails to do so, then the Seller may enter the Buyer’s premises and take possession of them. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

14.5.3   Clauses which expressly or by implication have effect after termination shall continue in full force and effect.

  1. Force Majeure

 

15.1      For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Seller including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Seller or any other party), failure of a utility service or transport network, act of God, war, terrorism, riot, civil commotion, interference by civil of military authorities, national or international calamity, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake, epidemic, natural ground movements, weather phenomenon or similar events, or default of suppliers or subcontractors.

15.2      The Seller shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

  1. General

16.1      Notices.

16.1.1   Any notice or other communication given to a party under or in connection with this 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 or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax [or e-mail].

16.1.2   The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action

16.2      Waiver.  A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default.  No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.3      No partnership or agency.  Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

16.4      Third parties.  A person who is not a party to the Contract shall not have any rights to enforce its terms.

16.5      This Contract contains the entire agreement and understanding of the parties relating to the subject matter of this Contract and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral.

16.7      Governing law.  This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

16.8      Jurisdiction.  Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).