Barenbrug UK Limited Terms and Conditions
These terms and conditions relate to all sales of goods by Barenbrug UK Ltd (Company Number 01692116) whose registered office is 33 Perkins Road, Rougham Industrial Estate, Bury St Edmunds, Suffolk, IP30 9ND trading as ‘Grass Seed Online’ through the website www.grassseedonline.co.uk.
The buyer’s attention is drawn in particular to clause 13 which sets out Barenbrug UK Ltd’s liability to the buyer.
Please note some conditions apply just to business customers (a business customer is a customer ordering or receiving goods whilst acting in the course of their trade, business, craft or profession) and some just to consumers (a consumer is a natural person ordering or receiving goods for their own personal use and who is not acting in the course of their trade, business, craft or profession) and these are clearly marked as such. If a condition is silent on this subject then it applies equally to both.
1 General
1.1 Unless otherwise agreed in writing, these terms and conditions apply to all quotations and sales made by Barenbrug UK Ltd, and supersede all earlier terms and conditions of Barenbrug UK Ltd and any conflicting conditions proposed by the buyer.
1.2 Each order by the buyer to Barenbrug UK Ltd will be deemed to be an offer to purchase goods and subject to these terms and conditions.
1.3 Barenbrug UK Ltd reserves the right at all times to reject any order by the buyer, in whole or in part, at its sole discretion.
1.4 Unfortunately, Barenbrug UK Ltd does not deliver orders to addresses outside the United Kingdom, unless you are a business customer, in which case Barenbrug UK Ltd delivers orders to the United Kingdom and the Republic of Ireland, or Barenbrug UK Ltd has agreed in writing to deliver the order outside the United Kingdom.
1.5 The buyer may place an order from outside the United Kingdom, but this order must be for delivery to an address in the United Kingdom unless the order is by a business customer for delivery in the Republic of Ireland or otherwise agreed in writing by Barenbrug UK Ltd.
1.6 An order will be accepted by Barenbrug UK Ltd and a contract will be formed, upon the earlier to occur of:
1.6.1 written acceptance by Barenbrug UK Ltd of the buyer’s order; or
1.6.2 Barenbrug UK Ltd doing any act consistent with fulfilling the order.
1.7 The contract constitutes the entire agreement between the parties. The buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Barenbrug UK Ltd which is not set out in these conditions.
2 Quality of goods
2.1 All information concerning the goods and their performance given orally or in writing by Barenbrug UK Ltd is given in good faith, but is not to be taken as representation by Barenbrug UK Ltd as to performance of goods sold, which will be dependant on the local climatic and other conditions. Sales are made by Barenbrug UK Ltd on the understanding that the buyer has satisfied itself of the suitability of the goods for its requirements.
2.2 Goods supplied by Barenbrug UK Ltd to the buyer expressly for trial purposes are for experimental use only. It is a condition of sale that they shall not be reproduced for resowing or sale.
2.3 Goods supplied by Barenbrug UK Ltd to the buyer shall not be used for trial purposes without the prior written consent of Barenbrug UK Ltd.
2.4 Other than goods supplied in accordance with clause 2.2, the goods shall comply at the time of delivery unless otherwise stated with the minimum standards of the UK seeds regulations and/or the EEC Seeds Directives and/or other relevant UK statutory provisions in force.
2.5 The quality of any seed supplied by Barenbrug UK Ltd will be dictated by the available supply. The buyer shall be required to confirm to Barenbrug UK Ltd acceptance of any seed certifications provided by Barenbrug UK Ltd to the buyer before an order will be fulfilled.
3 Quantity and price
3.1 The price of any goods ordered through Barenbrug UK Ltd’s website will be as quoted on Barenbrug UK Ltd’s website.
3.2 For all orders not placed through Barenbrug UK Ltd’s website, the price for the goods will be as quoted by Barenbrug UK Ltd to the buyer from time to time or in default of such quote and/or provision, will be calculated in accordance with Barenbrug UK Ltd’s standard scale of charges in force on the date of formation of the contract.
3.3 Unless otherwise stated:
3.3.1 Quantities of goods sold mean within 10% over or under the stated amount in any order accepted by Barenbrug UK Ltd.
3.3.2 Prices are exclusive of VAT and inclusive of applicable royalties for the UK Plant Breeders Rights in respect of goods purchased from Barenbrug UK Ltd.
3.3.3 Sales for deliveries overseas are subject to adjustment in price to take account of fluctuations in freight, insurance and exchange rates between date of quotation and date of despatch.
3.4 Barenbrug UK Ltd may at its sole discretion provide business customers with set limit credit accounts and Barenbrug UK Ltd may at its sole discretion vary such credit limits from time to time and withhold all further supplies if the buyer exceeds its credit limit.
3.5 Barenbrug UK Ltd reserves the right at all times to withdraw any credit accounts it has made available to the buyer for any reason whatsoever, at its sole discretion.
4 Delivery
4.1 Unless otherwise agreed by Barenbrug UK Ltd in writing, Barenbrug UK Ltd shall deliver the goods to the location set out in the order or such other location as Barenbrug UK Ltd may agree at any time (“Delivery Location”) after Barenbrug UK Ltd notifies the buyer that the goods are ready for delivery.
4.2 Delivery dates given by Barenbrug UK Ltd are estimates only and Barenbrug UK Ltd will accept no liability arising from early or late delivery. Next day delivery is offered on certain products, however this service cannot be guaranteed and Barenbrug UK Ltd will accept no liability arising from late delivery.
4.3 Unless otherwise agreed by Barenbrug UK Ltd in writing, delivery of the goods shall be completed on the goods’ arrival at the Delivery Location.
4.4 If the buyer refuses or fails to take delivery of the goods or fails to make a payment when due, Barenbrug UK Ltd reserves the right to repudiate further performance and to hold the buyer liable for any loss thereby arising.
4.5 Barenbrug UK Ltd may withhold delivery until all outstanding payments under any contract with Barenbrug UK Ltd have been made by the buyer.
IF THE BUYER IS A BUSINESS CUSTOMER
Clauses 4.6 to 4.9 only apply to business customers
4.6 If the buyer orders goods from Barenbrug UK Ltd and it is agreed by Barenbrug UK Ltd for delivery to be ex works, the Delivery Location shall be the location specified by Barenbrug UK Ltd to the buyer for delivery.
4.7 If delivery is to take place in accordance with clause 4.6 above, the buyer may be subject to import duties and taxes which are applied when the goods are transported and/or delivered outside of the United Kingdom by the buyer. The buyer will be responsible for the payment of any such import duties and taxes.
4.8 The buyer undertakes to comply with all applicable laws and regulations of the country for which the goods are destined. Barenbrug UK Ltd will not be liable or responsible if the buyer is in breach of any such law.
4.9 If the buyer fails to take or accept delivery of the goods (as the case may be) within 3 days of Barenbrug UK Ltd notifying the buyer that the goods are ready, then:
4.9.1 delivery of the goods shall be deemed to have been completed at 9.00 am on the third day after the day on which Barenbrug UK Ltd notified the buyer that the goods were ready; and
4.9.2 Barenbrug UK Ltd shall store the goods until delivery takes place, and charge the buyer for all related costs and expenses incurred by Barenbrug UK Ltd in respect of the storage of the goods.
5 Property and risk
IF THE BUYER IS A BUSINESS CUSTOMER
This clause 5 only applies to business customers
5.1 Title in the goods shall not pass to the buyer until Barenbrug UK Ltd has received payment in full for the goods from the buyer. Risk will pass on the earlier of delivery to the buyer or to the buyer’s carrier (or carrier arranged on Barenbrug UK Ltd on the buyer’s behalf).
5.2 Until title to the goods has passed to the buyer, the buyer shall:
5.2.1 hold the goods on a fiduciary basis as Barenbrug UK Ltd’s bailee;
5.2.2 store the goods in accordance with good trade practice separately from all other goods held by the buyer so that they remain in good condition and are readily identifiable as Barenbrug UK Ltd’s property;
5.2.3 not remove, deface or obscure any identifying mark or packaging on or relating to the goods;
5.2.4 maintain the goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
5.2.5 notify Barenbrug UK Ltd immediately if it becomes subject to any of the events listed in clause 8.2; and
5.2.6 give Barenbrug UK Ltd such information relating to the goods as Barenbrug UK Ltd may require from time to time;
but the buyer may resell or use the goods in the ordinary course of its business.
5.3 If before title to the goods passes to the buyer the buyer becomes subject to any of the events listed in clause 8.2, or Barenbrug UK Ltd reasonably believes that any such event is about to happen and notifies the buyer accordingly, then, provided that the goods have not been resold, or irrevocably incorporated into another product or sowed, and without limiting any other right or remedy Barenbrug UK Ltd may have, Barenbrug UK Ltd may at any time require the buyer to deliver up the goods and, if the buyer fails to do so promptly, enter any premises of the buyer or of any third party where the goods are stored in order to recover them.
6 Availability
IF THE BUYER IS A BUSINESS CUSTOMER
This clause 6 only applies to business customers
6.1 Where the goods of the contract description are at Barenbrug UK Ltd’s disposal at the time agreed for delivery are insufficient quantity to meet demand, Barenbrug UK Ltd shall not be obliged to buy such goods to make up the shortfall and shall have the right to apportion available stock between buyers at Barenbrug UK Ltd’s absolute discretion and treat any accepted order as amended accordingly. Barenbrug UK Ltd will give buyers as long notice as possible of any apportionment.
7 Cancellation
IF THE BUYER IS A BUSINESS CUSTOMER
This clause 7 only applies to business customers
7.1 If the buyer cancels in part or as a whole any order that has been accepted by Barenbrug UK Ltd, the buyer shall be liable to pay Barenbrug UK Ltd a fair estimate of the likely loss to Barenbrug UK Ltd arising out of the cancellation.
8 Buyer’s Insolvency
IF THE BUYER IS A BUSINESS CUSTOMER
This clause 8 only applies to business customers
8.1 If the buyer becomes subject to any of the events listed in clause 8.2 or Barenbrug UK Ltd reasonably believes that the buyer is about to become subject to any of them and notifies the buyer accordingly, then, without limiting any other right or remedy available to Barenbrug UK Ltd, Barenbrug UK Ltd may cancel or suspend all further deliveries under any contract between the buyer and Barenbrug UK Ltd without incurring any liability to the buyer, and all outstanding sums in respect of goods delivered to the buyer shall become immediately due.
8.2 For the purposes of clause 8.2, the relevant events are:
8.2.1 the buyer 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 foregoing apply;
8.2.2 the buyer 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;
8.2.3 (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 buyer;
8.2.4 (being an individual) the buyer is the subject of a bankruptcy petition or order;
8.2.5 a creditor or encumbrancer of the buyer 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;
8.2.6 (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 buyer;
8.2.7 (being a company) the holder of a qualifying charge over the buyer’s assets has become entitled to appoint or has appointed an administrative receiver;
8.2.8 a person becomes entitled to appoint a receiver over the buyer’s assets or a receiver is appointed over the buyer’s assets;
8.2.9 any event occurs, or proceeding is taken, with respect to the buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1 to clause 8.2.8 (inclusive);
8.2.10 the buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business
8.2.11 the buyer’s financial position deteriorates to such an extent that in Barenbrug UK ltd opinion the buyer’s capability to adequately fulfil its obligations under any contract has been placed in jeopardy; and
8.2.12 (being an individual) the buyer 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.
8.3 Termination of the any contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the contract shall continue in full force and effect.
9 Acceptance
IF THE BUYER IS A BUSINESS CUSTOMER
This clause 9 only applies to business customers
9.1 The buyer must inspect goods immediately on receipt and must within 3 days give notice to Barenbrug UK Ltd of any defect in quantity, quality or condition apparent on reasonable inspection. Written confirmation of such notice must reach Barenbrug UK Ltd within 10 days of delivery.
9.2 If the buyer fails to give such notice and confirmation in the time stated the goods shall be deemed to accord with the contract and the buyer shall be bound to accept and pay for them.
9.3 A delivery note for the goods found to be damaged must be noted “goods received damaged.”
10 Payment and Interest
10.1 Time for payment is of the essence. All invoices are payable by the buyer within 30 days of the date of the invoice unless the buyer orders the goods through Barenbrug UK Ltd’s website, in which case, payment shall be payable by the buyer in advance at the time the buyer places the relevant order.
IF THE BUYER IS A BUSINESS CUSTOMER
This clause 10.2 only applies to business customers
10.2 If the buyer fails to make any payment due to Barenbrug UK Ltd under the contract by the due date for payment, then the buyer shall pay interest on the overdue amount at the interest rate prescribed under the Late Payment of Commercial Debts Act 1998 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 buyer shall pay the interest together with the overdue amount.
IF THE BUYER IS A CONSUMER
This clause 10.3 only applies if the buyer is a consumer
10.3 If the buyer fails to make any payment due to Barenbrug UK Ltd under the contract by the due date for payment, then the buyer shall pay interest on the overdue amount at the rate of 3% per annum. 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 buyer shall pay the interest together with the overdue amount.
11 Force Majeure
11.1 Barenbrug UK Ltd shall not be responsible for delay in delivery of goods sold or part thereof nor the buyer for delay in accepting or taking delivery occasioned by any event beyond the reasonable control of the parties including but not limited to act of God, legal requirements, strike, failure of transport, machinery or power, adverse weather or failure or disease of crops, provided that written notice is given to the other party to the contract within 7 days of the defaulting party’s knowledge of the occurrence.
12 Right to Cancel
IF THE BUYER IS A CONSUMER
This clause 12 only applies if the buyer is a consumer
12.1 If the buyer is a consumer, the buyer will have a legal right to cancel a contract under the Consumer Protection (Distance Selling) Regulations 2000) in accordance with this clause 12.
12.2 The buyer may cancel any order at any time in writing to Barenbrug UK Ltd up to the end of the seventh business day from the date of delivery of the goods.
12.3 If the buyer cancels an order after delivery of the relevant goods, the buyer must send the goods back to Barenbrug UK Ltd at its own cost and expense. The buyer must take reasonable care of the goods and shall remain liable for the goods, including for their accidental loss or destruction, until delivery of the goods back to Barenbrug UK Ltd.
12.4 Barenbrug UK Ltd shall reimburse the buyer of any sums paid by the buyer for the goods as soon as possible and in any event within 30 days of receipt of cancellation of your order, less any reasonable direct costs incurred by Barenbrug UK Ltd in recovering the goods if the buyer fails to pay the costs of sending the goods back to Barenbrug UK Ltd, subject to the buyer taking reasonable care of the goods until delivery of them back to Barenbrug UK Ltd.
13 Barenbrug UK Ltd’s Liability
13.1 Barenbrug UK Ltd believes that the goods sold by it are free form latent defect (unless otherwise stated) but it is not a condition of sale and no warranty is given that goods are free from latent defect and Barenbrug UK Ltd will accept no liability whatsoever for loss or damage arising from defects in goods which could not reasonably have been discovered by Barenbrug UK Ltd prior to delivery or for defects occurring without negligence on the part of Barenbrug UK Ltd or for mutants generated during reproduction, or for germination, or for crop results.
13.2 Barenbrug UK Ltd shall not be liable for:
13.2.1 any defect in the goods that arise because the buyer has failed to follow Barenbrug’s oral or written instructions as to the storage, use and maintenance of the goods or (if there are none) good trade practice regarding the same; and
13.2.2 any defect in the goods that arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
IF THE BUYER IS A BUSINESS CUSTOMER
Clauses 13.3 and 13.4 only apply to business customers
13.3 Nothing in these conditions shall limit or exclude Barenbrug UK Ltd’s liability for:
13.3.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
13.3.2 fraud or fraudulent misrepresentation; or
13.3.3 any matter in respect of which it would be unlawful for Barenbrug UK Ltd to exclude or restrict liability.
13.3.4 Subject to clause 13.3, Barenbrug UK Ltd 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.
13.4 Subject to clause 13.3, in any event Barenbrug’s UK Ltd’s maximum liability under any contract to which these conditions apply will be limited to the higher of:
13.4.1 150% of the price paid by the buyer for the goods; or
13.4.2 the amount recoverable by Barenbrug UK Ltd under any insurance policy in respect of such liability.
IF THE BUYER IS A CONSUMER
Clauses 13.5 and 13.6 only applies to business customers
13.5 Nothing in these conditions is intended to exclude Barenbrug UK Ltd’s liability where consumer protection legislation or contract law prevents Barenbrug UK Ltd from doing so, including:
13.5.1 for death or personal injury caused by our negligence; or
13.5.2 for breach of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982;
13.5.3 for defective products under the Consumer Protection Act 1987; or
13.5.4 for fraud or fraudulent misrepresentation.
13.6 Barenbrug UK Ltd will be liable to the buyer for the reasonable and foreseeable losses the buyer may suffer or incur as a result of Barenbrug UK Ltd’s breach of these conditions. Except in unusual or exceptional circumstances, Barenbrug UK Ltd expects these losses to be limited to the price for the goods concerned.
14 General
14.1 A person who is not a party to the contract shall not have any rights to enforce its terms.
14.2 No delay, act or omission by Barenbrug in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
14.3 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 Barenbrug UK Ltd.
14.4 If any provision or part-provision of these conditions 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.
14.5 If any provision or part-provision of these conditions 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.
14.6 Packaging shown in product images may from what is supplied.
15 Arbitration
IF THE BUYER IS A BUSINESS CUSTOMER
This clause 15 only applies to business customers
15.1 All disputes concerning or arising out of these conditions shall be referred to a single arbitrator to be agreed on by Barenbrug UK Ltd and the buyer, or failing agreement to be nominated by the chairman of the United Kingdom Agricultural Supply Trade Association Limited England. Unless otherwise agreed arbitration shall be carried out in England subject to the Arbitration Act 1996 as subsequently amended and re-enacted.
16 Jurisdiction
IF THE BUYER IS A CONSUMER
This clause 16 only applies if the buyer is a consumer.
16.1 The parties agree to submit to the non-exclusive jurisdiction of the English courts. However, if the buyer is a resident of Northern Ireland the buyer may also bring proceedings in Northern Ireland, and if the buyer is a resident of Scotland, the buyer may also bring proceedings in Scotland.
17 Law
17.1 The construction, validity and performance to which these conditions apply shall be governed by English Law.
