Terms and Conditions

GLOBAL GARDEN SOLUTIONS LTD – STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS

JANUARY 2016

THE CUSTOMER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSE 10.

 

  1. INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London

are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in

accordance with clause 12.6.

Contract: the contract between GGS and the Purchaser for the sale and purchase of the Goods

in accordance with these Conditions.

Force Majeure Event: has the meaning given in clause 11.

Goods: the goods (or any part of them) set out in the Order.

Goods Specification: any specification for the Goods, including any related plans and

drawings, that are agreed in writing by the Purchaser and GGS.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade

marks, business names and domain names, rights in get-up, goodwill and the right to sue for

passing off, rights in designs, database rights, rights to use, and protect the confidentiality of,

confidential information (including know-how), and all other intellectual property rights, in each

case whether registered or unregistered and including all applications and rights to apply for and

be granted, renewals or extensions of, and rights to claim priority from, such rights and all

similar or equivalent rights or forms of protection which subsist or will subsist now or in the

future in any part of the world.

Order: the Purchaser’s order for the Goods, as set out in the Purchaser’s purchase order form,

the Purchaser’s written acceptance of GGS’s quotation, or overleaf, as the case may be.

Purchaser: the person or firm who purchases the Goods from GGS.

GGS : Global Garden Solutions Ltd Limited (registered in England and Wales with company

number 07053767) and whose registered office is 1 Whiteside, Station Road, Holmes Chapel,

Cheshire CW4 8AA.

GGS Materials: has the meaning set out in clause Error! Reference source not found..

1.2 Construction. In these Conditions, the following rules apply:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having

separate legal personality).

(b) A reference to a party includes its personal representatives, successors or permitted assigns.

(c) A reference to a statute or statutory provision is a reference to such statute or provision as

amended or re-enacted. A reference to a statute or statutory provision includes any subordinate

legislation made under that statute or statutory provision, as amended or re-enacted.

(d) Any phrase introduced by the terms including, include, in particular or similar expression

shall be construed as illustrative and shall not limit the sense of the words preceding those

terms.

(e) A reference to writing or written includes faxes and e-mails.

 

  1. BASIS OF CONTRACT

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Purchaser

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 Purchaser to purchase the Goods in accordance with

these Conditions. The Purchaser is responsible for ensuring that the terms of the Order and any

applicable Goods Specification submitted by the Purchaser are complete and accurate.

2.3 The Order shall only be deemed to be accepted:

(a) when GGS issues a written acceptance of the Order; or

(b) GGS notifies the Purchaser that the Order is ready for collection or delivery;

(whichever is the earlier) at which point the Contract shall come into existence.

2.4 Each Order constitutes a new Contract and the Contract constitutes the entire agreement

between the parties. The Purchaser acknowledges that it has not relied on any statement,

promise, representation, assurance or warranty made or given by or on behalf of GGS which is

not set out in the Contract.

2.5 Any samples, drawings, descriptive matter, or advertising produced by GGS and any

descriptions or illustrations contained in GGS’s website or brochures are produced for the sole

purpose of giving an approximate idea of the Goods described in them. They shall not form part

of the Contract or have any contractual force.

2.6 A quotation for the Goods given by GGS shall not constitute an offer. A quotation shall only be

valid for a period of 14 Business Days from its date of issue.

 

  1. GOODS

3.1 The Goods are described in GGS website, price list and catalogue

3.2 To the extent that the Goods are to be re-manufactured or amended in accordance with a

Goods Specification supplied by the Purchaser, the Purchaser shall indemnify GGS against all

liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential

losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable

professional costs and expenses) suffered or incurred by GGS in connection with any claim

made against GGS for actual or alleged infringement of a third party’s intellectual property rights

arising out of or in connection with GGS’s use of the Goods Specification. This clause 3.2 shall

survive termination of the Contract.

3.3 GGS reserves the right to amend the Goods Specification if required by any applicable statutory

or regulatory requirements.

 

  1. DELIVERY

4.1 GGS shall deliver the Goods to the location set out in the Order or such other location as the

parties may agree (Delivery Location) at any time after GGS notifies the Purchaser that the

Goods are ready. Alternatively, if previously agreed in writing the Purchaser shall collect the

Goods from GGS’s premises or such other location as may be advised by GGS prior to delivery

within three Business Days of GGS notifying the Purchaser that the Goods are ready. Where

the Purchaser shall collect the Goods the Delivery Location shall be GGS’s premises or such

other location as may be advised prior to Delivery.

4.2 Where GGS delivers the Goods to the Purchaser or Purchasers customer, delivery of the Goods

shall be completed on the Goods’ arrival at the Delivery Location. Where the Goods are

collected in accordance with clause 4.1, delivery of the Goods shall take place on the

completion of loading of the Goods at the Delivery Location.

4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the

essence. GGS shall not be liable for any delay in delivery of the Goods that is caused by a

Force Majeure Event or the Purchaser’s failure to provide GGS with adequate delivery

instructions or any other instructions that are relevant to the supply of the Goods.

4.4 If GGS fails to deliver the Goods, its maximum liability shall be limited to the costs and expenses

incurred by the Purchaser in obtaining replacement goods of similar description and quality in

the cheapest market available, less the price of the Goods. GGS shall have no liability for any

failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or

the Purchaser’s failure to provide GGS with adequate delivery instructions or any other

instructions that are relevant to the supply of the Goods.

4.5 If 10 Business Days after the day on which GGS notified the Purchaser that the Goods were

ready for delivery the Purchaser has not taken delivery of them, GGS may resell or otherwise

dispose of part or all of the Goods and, after deducting reasonable storage and selling costs,

account to the Purchaser for any excess over the price of the Goods or charge the Purchaser

for any shortfall below the price of the Goods.

4.6 GGS may deliver the Goods by instalments, which shall be invoiced and paid for separately.

Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an

instalment shall not entitle the Purchaser to cancel any other instalment.

4.7 Where GGS arranges delivery with the Purchaser or Purchasers customer and is unable to

deliver due to mis-information being provided, GGS reserves the right to charge the Purchaser

for a wasted journey or re-delivery

 

  1. QUALITY

5.1 GGS warrants that on delivery, and for a period specified by the manufacture from the date of

delivery (warranty period), the Goods shall:

(a) conform in all material respects with their description;

(b) be free from material defects in design, material and workmanship; and

(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

(d) be fit for any purpose held out by GGS.

5.2 Subject to clause 5.3, if:

(a) the Purchaser gives notice in writing to GGS during the warranty period within a reasonable time

of discovery that some or all of the Goods do not comply with the warranty in clause 5.1;

(b) GGS is given a reasonable opportunity of examining such Goods; and

(c) the Purchaser (if asked to do so by GGS and practical to do so) returns such Goods to GGS’s

place of business at the Purchaser’s cost,

then GGS shall, at its option, repair or replace the defective Goods, or refund the price of the

defective Goods in full.

5.3 GGS shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in

any of the following events:

(a) the Purchaser makes any further use of such Goods after giving notice in accordance with

clause 5.2;

(b) the defect arises because the Purchaser failed to follow GGS’s oral or written instructions as to

the storage, commissioning, installation, use and maintenance of the Goods or (if there are

none) good trade practice regarding the same;

(c) the defect arises as a result of GGS following any drawing, design or Goods Specification

supplied by the Purchaser;

(d) the Purchaser alters or repairs such Goods without the written consent of GGS;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal

storage or working conditions; or

(f) the Goods differ from their description as a result of changes made to ensure they comply with

applicable statutory or regulatory requirements.

5.4 Where Goods include a manufacturer’s guarantee, and to the extent this benefit can be

transferred, this shall be transferred to the Purchaser.

5.5 Where such manufacturer’s guarantee is available to the Purchaser, and to the extent possible

under the applicable law, the warranties provided above shall not apply to the Purchaser (except

to the extent that any defect in the Goods is due to the default of GGS).

5.6 Except as provided in this clause 0, GGS shall have no liability to the Purchaser in respect of

the Goods’ failure to comply with the warranty set out in clause 5.1.

5.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent

permitted by law, excluded from the Contract.

5.8 These Conditions shall apply to any repaired or replacement Goods supplied by GGS.

 

  1. TITLE AND RISK

6.1 The risk in the Goods shall pass to the Purchaser on completion of delivery.

6.2 Title to the Goods shall not pass to the Purchaser until the earlier of:

(a) GGS receives payment in full (in cash or cleared funds) for the Goods and any other goods that

GGS has supplied to the Purchaser in respect of which payment has become due, in which

case title to the Goods shall pass at the time of payment of all such sums; and

(b) the Purchaser resells the Goods, in which case title to the Goods shall pass to the Purchaser at

the time specified in clause 6.4.

6.3 Until title to the Goods has passed to the Purchaser, the Purchaser shall:

(a) store the Goods separately from all other goods held by the Purchaser so that they remain

readily identifiable as GGS’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full

price from the date of delivery;

(d) notify GGS immediately if it becomes subject to any of the events listed in clause 9.2; and

(e) give GGS such information relating to the Goods as GGS may require from time to time.

6.4 Subject to clause 6.5, the Purchaser may resell or use the Goods in the ordinary course of its

business (but not otherwise) before GGS receives payment for the Goods. However, if the

Purchaser resells the Goods before that time:

(a) it does so as principal and not as GGS’s agent; and

(b) title to the Goods shall pass from GGS to the Purchaser immediately before the time at which

resale by the Purchaser occurs.

6.5 If before title to the Goods passes to the Purchaser the Purchaser becomes subject to any of

the events listed in clause 9.2, then, without limiting any other right or remedy GGS may have:

(a) the Purchaser’s right to resell the Goods or use them in the ordinary course of its business

ceases immediately; and

(b) GGS may at any time:

(i) require the Purchaser to deliver up all Goods in its possession which have not been resold, or

irrevocably incorporated into another product; and

(ii) if the Purchaser fails to do so promptly, enter any premises of the Purchaser or of any third party

where the Goods are stored in order to recover them.

 

  1. PURCHASER’S OBLIGATIONS

7.1 The Purchaser shall:

(a) ensure that the terms of the Order and (if submitted by the Purchaser) the Goods Specification

are complete and accurate;

(b) co-operate with GGS in all matters relating to the supply of Goods;

(c) provide GGS with such information and materials as GGS may reasonably require to supply the

Goods in accordance with any Goods Specification, and ensure that such information is

accurate in all material respects;

(d) obtain and maintain all necessary licences, permissions and consents which may be required

under or in relation to any Goods Specification;

7.2 If GGS’s performance of any of its obligations in respect of this clause 0 is prevented or delayed

by any act or omission by the Purchaser or failure by the Purchaser to perform any relevant

obligation (Purchaser Default):

(a) GGS shall without limiting its other rights or remedies have the right to suspend supply of the

Goods until the Purchaser remedies the Purchaser Default, and to rely on the Purchaser Default

to relieve it from the performance of any of its obligations to the extent the Purchaser Default

prevents or delays GGS’s performance of any of its obligations;

(b) GGS shall not be liable for any costs or losses sustained or incurred by the Purchaser arising

directly or indirectly from GGS’s failure or delay to perform any of its obligations as set out in this

clause 7.2; and

(c) the Purchaser shall reimburse GGS on written demand for any costs or losses sustained or

incurred by GGS arising directly or indirectly from the Purchaser Default.

7.3 GGS shall have no obligation whatsoever to provide proof of delivery more than seven days

after delivery was made.

 

  1. PRICE AND PAYMENT

8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price

set out in GGS’s published price list in force as at the date of delivery.

8.2 GGS may,

(a) by giving notice to the Purchaser at any time before delivery, increase the price of the Goods to

reflect any increase in the cost of the Goods that is due to:

(i) any factor beyond GGS’s control (including foreign exchange fluctuations, increases in taxes

and duties, and increases in labour, materials and other manufacturing costs);

(ii) any request by the Purchaser to change the delivery date(s), quantities or types of Goods

ordered, or the Goods Specification; or

(iii) any delay caused by any instructions of the Purchaser or failure of the Purchaser to give GGS

adequate or accurate information or instructions;

8.3 The prices quoted include delivery to specified geographical areas as defined in the Price List.

Surcharges are applicable for deliveries made outside of these areas and will be charged

directly to the Purchaser. These surcharges will be detailed on the sales order confirmation at

which point the Purchaser will be deemed to accept the charge if no written objection is received

with 24hours.The price of the Goods is exclusive of amounts in respect of value added tax

(VAT). The Purchaser shall, on receipt of a valid VAT invoice from GGS, pay to GGS such

additional amounts in respect of VAT as are chargeable on the supply of the Goods.

8.4 GGS may invoice the Purchaser for the Goods on or at any time after the date of despatch of

the Goods. GGS reserves the right to require payment for the Goods (in whole or in part) in

advance of delivery to the bank account nominated in writing by GGS.

8.5 Unless otherwise agreed in writing by GGS, or otherwise stated on GGS’s invoice, the

Purchaser shall pay the invoice in full and in cleared funds within 14 days of the date of the

invoice. Time of payment is of the essence.

8.6 Payment shall be by cheque, BACS or to such bank account as shall be nominated in writing by

GGS.

8.7 If the Purchaser fails to make any payment due to GGS under the Contract by the due date for

payment, then:

(a) the Purchaser shall pay interest on the overdue amount at the rate of four per cent per annum

above Natwest Bank Plc’s base rate from time to time. Such interest shall accrue on a daily

basis from the due date until actual payment of the overdue amount, whether before or after

judgment. The Purchaser shall pay the interest together with the overdue amount;

(b) GGS may suspend performance of the supply of Goods under this Contract or any other

contract between GGS and the Purchaser in accordance with clause 9.4; and

(c) GGS may charge the Purchaser all reasonable costs (including legal costs) it incurs in

recovering any payment due to GGS under the Contract.

8.8 The Purchaser shall pay all amounts due under the Contract in full without any set-off,

counterclaim, deduction or withholding (except for any deduction or withholding required by

law). GGS may at any time, without limiting any other rights or remedies it may have, set off any

amount owing to it by the Purchaser against any amount payable by GGS to the Purchaser.

 

  1. TERMINATION AND SUSPENSION

9.1 If the Purchaser becomes subject to any of the events listed in clause 9.2, GGS may terminate

the Contract with immediate effect by giving written notice to the Purchaser.

9.2 For the purposes of clause 9.1, the relevant events are:

(a) the Purchaser 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 above

apply;

(b) the Purchaser 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 Purchaser is a company) where these

events take place for the sole purpose of a scheme for a solvent amalgamation of the Purchaser

with one or more other companies or the solvent reconstruction of the Purchaser;

(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 Purchaser, other than for the sole purpose

of a scheme for a solvent amalgamation of the Purchaser with one or more other companies or

the solvent reconstruction of the Purchaser;

(d) (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 Purchaser;

(e) (being a company) the holder of a qualifying floating charge over the Purchaser’s assets has

become entitled to appoint or has appointed an administrative receiver;

(f) a person becomes entitled to appoint a receiver over the Purchaser’s assets or a receiver is

appointed over the Purchaser’s assets;

(g) (being an individual) the Purchaser is the subject of a bankruptcy petition or order;

(h) a creditor or encumbrancer of the Purchaser 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;

(i) any event occurs, or proceeding is taken, with respect to the Purchaser in any jurisdiction to

which it is subject that has an effect equivalent or similar to any of the events mentioned in

clause 9.2(a) to clause 9.2(f) (inclusive);

(j) the Purchaser suspends, threatens to suspends, ceases or threatens to cease to carry on all or

a substantial part of its business;

(k) the Purchaser’s financial position deteriorates to such an extent that in GGS’s opinion the

Purchaser’s capability to adequately fulfil its obligations under the Contract has been placed in

jeopardy; and

(l) (being an individual) the Purchaser 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.

9.3 Without limiting its other rights or remedies GGS may terminate the Contract by giving the other

party not less than one months’ written notice.

9.4 Without limiting its other rights or remedies, GGS may suspend provision of the Goods under

the Contract or any other contract between the Purchaser and GGS if the Purchaser becomes

subject to any of the events listed in clause 9.2(a) to clause 9.2(l), or GGS reasonably believes

that the Purchaser is about to become subject to any of them, or if the Purchaser fails to pay

any amount due under this Contract on the due date for payment.

9.5 On termination of the Contract for any reason the Purchaser shall immediately pay to GGS all of

GGS’s outstanding unpaid invoices and interest.

9.6 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies,

obligations and liabilities that have accrued as at termination.

9.7 Clauses which expressly or by implication survive termination of the Contract shall continue in

full force and effect.

 

  1. LIMITATION OF LIABILITY

10.1 Nothing in these Conditions shall limit or exclude GGS’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or

subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;

(d) defective products under the Consumer Protection Act 1987; or

(e) any matter in respect of which it would be unlawful for GGS to exclude or restrict liability.

10.2 Subject to clause 10.1:

(a) GGS shall under no circumstances whatever be liable to the Purchaser, whether in contract, tort

(including negligence), breach of statutory duty, or otherwise, for any:

(i) loss of profit, or

(ii) loss of goodwill; or

(iii) loss of business; or

(iv) loss of business opportunity; or

(v) any indirect or consequential loss

arising under or in connection with the Contract; and

(b) GGS’s total liability to the Purchaser 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 100% of the price of the Goods under the Contract.

 

  1. FORCE MAJEURE

Neither party shall be liable for any failure or delay in performing its obligations under the

Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force

Majeure Event means any event beyond a party’s reasonable control, which by its nature could

not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes,

lock-outs or other industrial disputes (whether involving its own workforce or a third party’s),

failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion,

interference by civil or military authorities, national or international calamity, armed conflict,

malicious damage, breakdown of plant or machinery, nuclear, chemical or biological

contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms,

earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse

weather conditions, or default of suppliers or subcontractors.

 

  1. GENERAL

12.1 Assignment and other dealings.

(a) GGS may at any time assign, transfer, mortgage, charge, subcontract or deal in any other

manner with all or any of its rights or obligations under the Contract.

(b) The Purchaser may not assign, transfer, mortgage, charge, subcontract, declare a trust over or

deal in any other manner with any or all of its rights or obligations under the Contract without the

prior written consent of GGS.

12.2 Notices.

(a) Any notice or other communication given to a party under or in connection with the 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, sent by pre-paid first class post or other next working day delivery service,

commercial courier, fax or e-mail.

(b) A notice or other communication shall be deemed to have been received: if delivered personally,

when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other

next working day delivery service, at 9.00 am on the second Business Day after posting; if

delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is

signed; or, if sent by fax or e-mail, one Business Day after transmission.

(c) The provisions of this clause shall not apply to the service of any proceedings or other

documents in any legal action.

12.3 Severance.

(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable,

it shall be deemed modified to the minimum extent necessary to make it valid, legal and

enforceable. If such modification is not possible, the relevant provision or part-provision shall be

deemed deleted. Any modification to or deletion of a provision or part-provision under this

clause shall not affect the validity and enforceability of the rest of the Contract.

(b) If one party gives notice to the other of the possibility that any provision or part-provision of this

Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend

such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent

possible, achieves the intended commercial result of the original provision.

12.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in

writing and shall not be deemed a waiver of any subsequent breach or default. No failure or

delay by a party to exercise any right or remedy provided under the Contract or by law shall

constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.

12.5 Third party rights. A person who is not a party to the Contract shall not have any rights to

enforce its terms.

12.6 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.

12.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the

introduction of any additional terms and conditions, shall be effective unless it is in writing and

signed by GGS.

12.8 Governing law. The Contract, 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.

12.9 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).