Standard Trade Terms and Conditions
1. INTERPRETATION AND DEFINITIONS1.1 In these Conditions the following words have the following meanings:
"Buyer"
the person(s), firm or company who purchases the Goods from Bloom and Grow Ltd. and whose details are set out on the Order Form;
"Contract"
any contract between Bloom and Grow Ltd. and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
"Conditions"
these conditions including the information set out on the Order Form;
"Delivery Point"
the place where delivery of the Goods is to take place pursuant to clause 4 and as may be identified on the Order Form;
"Delivery Date"
the date (if any) by which Bloom and Grow Ltd. agrees to deliver the Goods;
"Goods"
any goods agreed in the Contract to be supplied to the Buyer by Bloom and Grow Ltd. (including any part or parts of them);
"Order Form"
the order form detailing the Goods to be ordered pursuant to these Conditions.
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 The headings in these Conditions are for reference only and do not form part of the Conditions.
2. APPLICATION OF CONDITIONS
2.1 Save as set out in these Conditions, the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all Bloom and Grow Ltd.'s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of Bloom and Grow Ltd. Nothing in these Conditions will exclude or limit the company's liability for fraudulent misrepresentation.
2.4 Each order for Goods by the Buyer from Bloom and Grow Ltd. shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.5 The Buyer must ensure that the terms of its order (including those set out on any Order Form and any applicable specification) are complete and accurate.
2.6 Without limiting the effect of any other clause of this Agreement, the Buyer's attention is specifically drawn to clauses 9, 10 and 13.
3. DESCRIPTION
3.1 The description of the Goods shall be as set out Bloom and Grow Ltd.'s Order Form.
3.2 All drawings, descriptive matter, specifications and advertising issued by Bloom and Grow Ltd. and any descriptions or illustrations contained in Bloom and Grow Ltd.'s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
4. DELIVERY
4.1 Bloom and Grow Ltd. will use its reasonable endeavours to deliver the Goods to the Delivery Point by the Delivery Date. Time for delivery shall not, however, be of the essence. If no dates for delivery are specified then delivery shall be within a reasonable time.
4.2 If for any reason the Buyer will not accept delivery of any of the Goods when delivered, or Bloom and Grow Ltd. is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
a. risk in the Goods will pass to the Buyer (including for loss or damage caused by Bloom and Grow Ltd.'s negligence);
b. the Goods will be deemed to have been delivered; and
c. Bloom and Grow Ltd. may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.3 The Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for unloading the Goods.
4.4 If Bloom and Grow Ltd. delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity accepted by Bloom and Grow Ltd. the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
5. NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by Bloom and Grow Ltd. upon despatch from Bloom and Grow Ltd.'s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 Bloom and Grow Ltd. shall not be liable for any non-delivery of Goods (even if caused by Bloom and Grow Ltd.'s negligence) unless written notice is given to Bloom and Grow Ltd. within 2 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability Bloom and Grow Ltd. has for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. RISK/TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until Bloom and Grow Ltd. has received in full (in cash or cleared funds) all sums due to it in respect of:
a. the Goods; and
b. all other sums which are or which become due to Bloom and Grow Ltd. from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
a. hold the Goods on a fiduciary basis as the Bloom and Grow Ltd.'s bailee;
b. store the Goods (at no cost to Bloom and Grow Ltd.) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Bloom and Grow Ltd.'s property;
c. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
d. maintain the Goods in satisfactory condition and keep them insured on Bloom and Grow Ltd.'s behalf for their full price against all risks to the reasonable satisfaction of Gro-group™.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
a. any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
b. any such sale shall be a sale of Bloom and Grow Ltd.'s property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer's right to possession of the Goods shall terminate immediately if:
a. the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed; or
b. the Buyer encumbers or in any way charges any of the Goods.
6.6 Bloom and Grow Ltd. shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Bloom and Grow Ltd.
6.7 The Buyer grants Bloom and Grow Ltd., its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
7. PRICE
7.1 Unless otherwise agreed by Bloom and Grow Ltd.in writing (including any applicable Order Form) the price for the Goods shall be the price set out in Bloom and Grow Ltd.'s price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
8. PAYMENT
8.1 Payment of the price for the Goods is due within 30 days from the date of invoice. In the event that payment is received in cleared funds within 10 days from the date of invoice then Bloom and Grow Ltd. shall give the Buyer a discount of net 3% in respect of such invoice.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until Bloom and Grow Ltd. has received cleared funds.
8.4 All payments payable to Bloom and Grow Ltd. under the Contract shall become due immediately upon termination of this Contract despite any other provision.
8.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Bloom and Grow Ltd. to the Buyer.
8.6 If the Buyer fails to pay Bloom and Grow Ltd. any sum due pursuant to the Contract the Buyer will be liable to pay interest to Bloom and Grow Ltd. on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of HSBC Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment.
9. QUALITY
9.1 Where Gro-group™ is not the manufacturer of the Goods, Bloom and Grow Ltd. will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to Bloom and Grow Ltd.
9.2 Bloom and Grow Ltd. warrants that (subject to the other provisions of these Conditions) upon delivery the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994 (as amended).
9.3 Bloom and Grow Ltd. shall not be liable for a breach of the warranty in clause 9.2 unless:
a. the Buyer gives written notice of the defect to Bloom and Grow Ltd., and (if the defect is as a result of damage in transit) to the carrier, within 2 days of the date of actual delivery; and
b. Bloom and Grow Ltd. given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by Bloom and Grow Ltd.) returns such Goods to Bloom and Grow Ltd.'s place of business at Bloom and Grow Ltd.'s cost for the examination to take place there.
9.4 Bloom and Grow Ltd. shall not be liable for a breach of the warranty in clause 9.2 if:
a. the Buyer makes any further use of such Goods after giving such notice; or
b. the defect arises because the Buyer failed to follow Bloom and Grow Ltd.'s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
c. the Buyer alters or repairs such Goods without the written consent of Bloom and Grow Ltd.
9.5 Subject to these Conditions, if any of the Goods do not conform with the warranty in clause 9.2 Bloom and Grow Ltd. shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if Bloom and Grow Ltd.so requests, the Buyer shall, at the Bloom and Grow Ltd.'s expense, return the Goods or the part of such Goods which is defective to Bloom and Grow Ltd.
9.6 If Bloom and Grow Ltd. complies with clause 9.2 it shall have no further liability for a breach of the warranty in clause 9.2 in respect of such Goods.
10. LIMITATION OF LIABILITY
10.1 Subject to clause 10.3, the following provisions set out the entire financial liability of Bloom and Grow Ltd. (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
a. any breach of these Conditions; and
b. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of Bloom and Grow Ltd. for death or personal injury caused by Bloom and Grow Ltd.'s negligence or fraudulent misrepresentation.
10.4 Subject to clause 10.3:
a. Bloom and Grow Ltd.'s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the direct price charged by Gro-group™ for the Goods giving rise to the claim; and
b. Bloom and Grow Ltd. shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11. ASSIGNMENT
11.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Bloom and Grow Ltd.
11.2 Bloom and Grow Ltd. may assign the Contract or any part of it to any person, firm or company.
b>12. FORCE MAJEURE
Bloom and Grow Ltd. reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Bloom and Grow Ltd. including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 60 days, the Buyer shall be entitled to give notice in writing to Gro-group™ to terminate the Contract.
13. USE OF TRADEMARK
13.1 grobag® and the grobag® logo are registered trade marks. Any reference to the Goods in any literature used or authorised by the Buyer including without limit any mail order catalogues, advertising literature, or any other documentation must include the brand name "grobag" or the grobag® logo (as the case may be) and must include the symbol ® next to the same.
13.2 Under no circumstances is the Buyer to use the afore mentioned trademarks in any manner which will or is likely to damage or limit the goodwill of grobag® or bring it into disrepute. grobag® shall be entitled at its absolute discretion to refuse any order which it believes is or will contravene or result in the contravention of this clause.
13.3 Under no circumstances must the Buyer remove, suppress, alter and/or hide any trademark used or owned by grobag® on the Goods.
14. GENERAL
14.1 Each right or remedy of Bloom and Grow Ltd. under the Contract is without prejudice to any other right or remedy of Bloom and Grow Ltd. whether under the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.3 Failure or delay by Bloom and Grow Ltd. in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
14.4 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
15. COMMUNICATIONS
15.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:
a. (in case of communications to Bloom and Grow Ltd.) to its registered office or such changed address as shall be notified to the Buyer by Gro-group™; or
b. (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out Front Sheet or such other address as shall be notified to Bloom and Grow Ltd. by the Buyer.
15.2 Communications shall be deemed to have been received:
a. if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
b. if delivered by hand, on the day of delivery;
c. if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.