Terms of Sale
Effective from 1st April 2016. This offer cancels all previous offers.
DEFINITIONS – In these Terms
“Buyer” means the person who accepts Elsoms quotation for the sale of goods or whose order for goods is accepted by Elsoms. “Contract” means the contract for the sale and purchase of goods. “Elsoms” means Elsoms Seeds Ltd of Pinchbeck Road Spalding Lincolnshire PE11 1QG. “Terms” means the standard terms and conditions of sale as set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between the Buyer and Elsoms.
Unless otherwise specifically agreed in writing English law shall govern the construction of the Terms and any dispute which may arise in relation to them.
These prices have been based on the latest costs at time of going to press and offers are subject to out-turn of our or our suppliers crops and/or being unsold and without engagements. Prices are for net weights, bags free and non-returnable unless otherwise stated. All prices quoted by letter or verbally by Head Office personnel or our authorised representatives are subject to alteration without notice. We also reserve the right to alter prices by reason of the imposition of or alteration of any tax, duty, levy or other statutory or E.U. charge at the point of application in accordance with the regulations relating to the aforementioned charges.
FLUCTUATIONS IN THE £
If the goods which are the subject matter of this offer are of foreign origin we reserve the right to adjust the price payable by you so as to reflect any alteration in the value of the £ sterling in terms of currency of the country of origin of the goods between the date of sale and the date of invoice.
The prices are, unless otherwise stated, inclusive of packing and delivery, carriage paid home in England, Scotland, Wales or f.o.b. English ports. Special delivery e.g. 1st CLASS POST etc. will be charged to the Buyer.
If we are unable to supply the variety or treatment ordered we will usually send the nearest available, unless instructed to the contrary.
All information whether contained in our literature or given by our staff is for general guidance only. Variation in local or climatic conditions can render such information inaccurate. Buyers are therefore advised that any such information given to them does not constitute a representation by us as to these matters and should not be relied on as such. Buyers should satisfy themselves that any seeds which they order are of a variety and performance satisfactory for their requirements and order such seeds at their own risk.
Seeds sold by us are guaranteed to comply at the time of delivery with the UK Seeds Regulations currently in force. All germination figures quoted are laboratory tests as defined by the OSTS and/or E.U. Regulations and are not the figures that can be expected to grow in the field. If certificates of conformity are required, please request these at time of ordering.
INTELLECTUAL PROPERTY RIGHTS/REPRODUCTION OF SEED
All intellectual property rights are reserved. With the exception of our multiplication grades of seed which are sold for reproduction, all other seeds are offered and sold for the production of consumer crops only and not for reproduction of seed. Unauthorised reproduction and/or exploitation is forbidden. Violation of our or our suppliers’ intellectual property rights may constitute a serious offence (for further info see www.aib-seeds.com).
Disease of plants can be transmitted by the wind, by insect, by animals or by human agencies and may be seed borne or soil borne. We believe the seed hereby sold to be free from latent defect, but it is not a condition of sale nor do we warrant that any seed sold by us shall be free from such defect and we will not be responsible in any way for the resultant crop.
BUYER SPECIFIED UNTREATED SEED
If a Buyer specifically requests that seed should not have a chemical treatment where this is normally offered or advised in our Catalogue or Guide then we accept no liability for any damage, direct or consequential, which may result therefrom.
SEED TREATMENT AT BUYER’S REQUEST
Where at the Buyer’s request any treatment whether chemical or otherwise is applied to the seed, Elsoms accepts no responsibility for the effectiveness of such treatment or any damage direct or consequential which may result therefrom. Buyers may request that seed is treated in accordance with a specific off-label approval (SOLA) or Extension of Authorisation for Minor Use (EAMU) (this is strictly at the discretion of Elsoms). SOLA’s and EAMU’s are uses for which approval has been sought by individuals or organisations other than the manufacturers. The Notices of Approval are published by FERA and are widely available from AHDB and/or HDC offices. Buyers must first obtain a copy of the relevant Notice of Approval and comply strictly with the conditions laid down therein. Although approved, off-label and EAMU uses are not endorsed by manufacturers and such treatments are made entirely at the risk of the Buyer.
DAMAGE, DELAY or LOSS IN TRANSIT
Please advise us immediately and, on receipt of goods, inspect carefully. If there is any sign of damage, sign “Damaged in Transit” and indicate then that a claim will be made. In the case of goods actually delivered damaged, Elsoms must notify the carrier within 10 days of delivery. Buyers are, therefore, requested to notify immediately by phone of any case of goods received damaged and confirm by return first class mail so that the necessary claim can be made. In cases of non-arrival of goods, within fourteen days of despatch, advise the Carriers and us. This gives us the time to lodge a complaint within the time limit of 28 days.
Should the fulfilment of any Contract or order be prevented or delayed by Act of God, action by any Government, blockade, revolution, prohibition of export or import, riot, civil commotion, strikes, lockouts, force majeure, failure of crops, breakdown of machinery, power failure, fuel shortage, loss and/or detention at sea or any other contingency beyond our control, we will not be responsible for any loss and/or damage occasioned thereby. Should any of the goods be rendered unfit for delivery by reason of any of the above acts the Contract so far as it relates to those goods shall be deemed to be cancelled.
Each delivery or consignment shall stand as a separate contract.
Cheques should be made payable to ELSOMS SEEDS LTD. and crossed/& Co./. Bank transfers can be made to the Elsoms bank account shown on the invoice. After 28 days all accounts are due at full invoice price. Interest will be charged on overdue accounts at a rate of 1.25% per month calculated on the outstanding balance. All accounts are payable at Spalding, Lincs. We reserve the right to require payment at any time and the goods are sold subject to this express condition.
Elsoms reserve the right to withhold deliveries until all and any outstanding payments due from the Buyer under any Contract with us have been received and reserve a lien upon – and the right to sell or otherwise dispose of – all goods the subject of any Contract whether appropriated to it or not in respect of any such payments.
OWNERSHIP AND RISK
(a) Until paid for in full, all goods supplied by Elsoms, remain Elsoms property. (b) Risk passes to the Buyer on delivery of the goods. Conditions regarding ownership and risk do not affect Elsoms contractual rights and all goods supplied must be paid for in accordance with the contract.
(i) If the Buyer: (a) Has a Receiver or Liquidator appointed to any of its property or business undertaking; or (b) Announces that he is ceasing to Trade (other than for declared legitimate reasons such as retirement, whilst continuing to honour all existing contracts); or (c) Fails to make a payment as due, suspends payment and/or notifies any of his creditors that he is unable to meet debts or that he is about to suspend payment of his debts; or (d) Convenes, calls or holds a meeting of creditors; or (e) Being an individual or a firm becomes bankrupt or makes any composition or scheme of arrangement with his creditors; or (f) Being a body corporate convenes, calls or holds a meeting for the purpose of going into liquidation (other than for the purpose of reconstruction or amalgamation) by the making of an order or the passing of a resolution for winding-up or becomes subject to an administration order; or (g) The other party being a partnership – any of the above events occurs with respect to the partnership or to any partner therein; then: – notwithstanding any previous arrangement with Elsoms for deferred payments, the full or full remaining price for any goods delivered by Elsoms shall become immediately due to it; and Elsoms shall have the right without prejudice to any other rights and remedies available to it, to cancel and/or suspend or to refuse to accept any further deliveries and/or to terminate the Contract at any time after becoming aware of any of the above circumstances providing that – when exercising any of the above rights, Elsoms shall inform the Buyer of its intention to exercise such rights in writing within 28 days after the relevant occurrence. (ii) Whenever any of these rights are exercised by Elsoms, Elsoms will not be liable to pay any compensation to the Buyer.
No complaint under the Terms can be considered unless clear proof can be given that the seed grown and alleged to have performed unsatisfactorily was in fact the seed supplied by us and that it was sown on suitably prepared ground treated carefully and correctly throughout and subject only to such conditions as were likely to produce a favourable crop.
Any dispute under this Contract shall be referred to arbitration in accordance with the arbitration rules of the British Society of Plant Breeders Ltd, current at the date of the referral, which have been drawn up in consultation with and approved by the National Farmers’ Union of England and Wales, the National Farmer’s Union of Scotland and the Ulster Farmers’ Union. All parties shall in making this Contract be deemed to have knowledge of such rules and to have elected to be bound thereby. Copies of the arbitration rules can be obtained from British Society of Plant Breeders Ltd, BSPB House, 114 Lancaster Way Business Park, Ely, Cambridgeshire, CB6 3NX or can be seen on our website.
ACCEPTANCE OF TERMS
The giving or sending of an order to us constitutes an acceptance of the Terms by the Buyer who, if he/she does not accept the Terms must return the goods forthwith.
LIMITATION OF LIABILITY
In the event of any goods supplied by us not complying with the terms of the Contract or of any goods proving defective (whether as regards purity or germination or otherwise) we will at our option replace the goods free of charge to the Buyer or will refund all payments made to us by the Buyer in respect of the defective goods and this will be the limit and the sole extent of our obligation. Save as set out in this clause above we hereby exclude all liability whatsoever (whether based on negligence by us or our employees, suppliers, sub-contractors or agents or otherwise) for any loss expense or damage whether direct or consequential arising in any way whatsoever in connection with any goods supplied by us whether due to any failure in the performance of or any defect in any such goods or otherwise howsoever. In accordance with the established custom of the seed and horticultural trade any express or implied condition statement or warranty statutory or otherwise whatsoever not expressly stated in the Terms is excluded. The price of all goods sold by us is based upon the foregoing limitations upon our liability and would be much greater if a more extensive liability were required to be undertaken by us. In accepting the goods upon these conditions the Buyer acknowledges that the limitation of Elsoms liability is fair and reasonable.
If any provision of the Terms is held by a Court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Terms and the remainder of the provision in question shall not be affected.
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties acknowledge that it is not their intention that any third party shall be entitled to enforce any term of the Contract which may confer a benefit on that third party whether any such entitlement would, but for this provision, arise under the Contracts (Rights of Third Parties) Act 1999 or otherwise.