Terms of sale of Landscapeplus Ltd (“the seller”)
1.1 In these Terms:
“Buyer” means the person who accepts the Seller’s quotation for the sale of the Goods or whose order for the Goods is accepted by the Seller; “Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms; “Contract” means the contract for the sale and purchase of
“Terms” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and the Seller; “Writing” and any similar expression, includes facsimile transmission and comparable means of communication.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2.1 These Terms shall govern the Contract to the exclusion of any other terms subject to which any quotation is accepted or purported to be accepted, or any order is made or purported to be made, by the Buyer.
2.2 No variation to these Terms shall be binding unless agreed in Writing by a director of the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4 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 Goods which is not confirmed in writing by the Seller is followed or acted on entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation
which is not so confirmed.
2.5 Any quotation provided by the Seller is given in good faith and based on the information (including without limitation, quantity, quality and durability of Goods required and the environment in which the Buyer intends to use the same) which the Buyer provides to the Seller. It is the Buyer’s responsibility to ensure that all such information is correct and the Seller shall not be responsible for any mistakes or inaccuracies.
2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms. The Buyer shall be responsible for the design of any irrigation or lighting or other scheme which incorporates the Goods. The Buyer shall be responsible for ensuring that the Goods selected are appropriate for the particular site conditions and that the Goods are compatible with any other products with which they are to be used.
3.3 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs and expenses incurred by the Seller as a result of cancellation.
4.1 The price of the Goods shall be the Seller’s quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer. The Seller reserves the right to increase prices due to factors outside the control of the Seller. In the event of an increase, the Buyer shall have the right to cancel the order within 7 days of notice of such an increase.
4.2 The Buyer shall be liable to pay the Seller’s charges for transport and packaging on orders of less than £100. For orders over £100, the transport and packaging charges shall be agreed between the parties.
4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to payto the Seller.
5.1 Payment is normally due to be made to the Seller at the time the order is placed. If credit terms are agreed the Seller shall invoice the Buyer for the price of the Goods on or at any time after the Goods have been dispatched by the Seller.
5.2 The Buyer shall pay within the agreed credit terms, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only on request.
5.3 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:
5.3.1 cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 3 per cent per annum above National Westminster Bank plc base rate from time to time, until payment in full is made.
6.1 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing.
6.2 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.3 If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without limiting any other right or remedy available to the Seller, the Seller may charge the Buyer for all costs and loss
of profit under the Contract.
6.5 If an incorrect amount of the Goods is delivered and the Buyer notifies us within 7 days, the Seller will arrange to deliver the correct quantity of Goods. Where possible, all shortages should be noted on the delivery note.The Buyer will be deemed to have accepted the Goods if the Buyer has not returned them to the Seller or informed the Seller of
their rejection within the 7 days or if the Buyer has installed them or they are not in their original condition.
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s
fiduciary agent and bailee, and shall keep the Goods separate from those of the
Buyer and third parties and properly stored, protected and insured and identified
as the Seller’s property, but the Buyer may resell or use the Goods in the
ordinary course of its business.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and
repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
8.1 This clause only applies if the Buyer is acting outside the Buyer’s business [or if the Buyer has not visited the Seller’s showroom].
8.1.1 The Buyer may cancel the Contract within 7 working days beginning the day after the Buyer receives the Goods.
8.1.2 The Buyer cannot cancel if the Goods are made specifically for the Buyer, or the Buyer has installed or used them in
8.1.3 If the Buyer wishes to return the Goods he/she must send them back to the Seller. The Buyer must pay for the cost of sending the Goods back to the Seller. All Goods must be returned in their original condition and packaging.
9.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.
9.2 Subject to the following provisions in the case of goods manufactured outside the EC, the Seller warrants that the Goods will correspond with their specification and will be free from defects in material and workmanship at the time of delivery; and in the case of goods manufactured within the EC will have the benefit of the manufacturer’s
9.3 The above warranty is given by the Seller subject to the following conditions:
9.3.1 The Seller shall be under no liability in respect of any defect in the Goods arising from any specification supplied by the Buyer;
9.3.2 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s
or manufacturer’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Seller’s approval;
9.3.3 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date
9.3.4 The Buyer shall have fulfilled its obligations under clause 3.2.
9.4 Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.5 Where the Goods are sold to a consumer the statutory rights of the Buyer are not affected by these Terms.
9.6 A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
9.7 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may replace the Goods (or the part in question) free of charge and refund the cost of return carriage or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.
9.8 Except in respect of death or personal injury caused by the Seller’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arises out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.
9.9 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control.
10.1 If the Buyer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer or the Buyer ceases, or threatens to cease, to carry on business then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11.1 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 If any provision of the Contract 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 Contract and the remainder of the provision in question shall not be affected.
11.4 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.