1: Definitions The “Buyer” means the person who buys or agrees to buy Goods from the Seller.
The “Seller” means Todds Nursery Ltd.
“Conditions” means the Conditions of Sale set out in this document and any special conditions agreed in writing by the Seller.
In these Terms and Conditions of Business (“conditions”) the following terms shall have the following meanings:
The Company shall have no liability in respect of failure to deliver arising from circumstances outside of its control
The Customer is obliged to inspect and examine the received Goods and provide the necessary manpower for unloading
“Company” means Todds Nursery Ltd. “Customer” is the person, firm or company or organisation who places an order with Todds Nursery Ltd. For the supply of goods and/or services “Goods” means the product and/or services supplied by the Company which are the subject of an order placed by the Customer with the Company this “Agreement” means the contract between the Customer for the supply of services and/or goods incorporating these Terms and Conditions.
2: Conditions These “Terms and Conditions” do not affect your statutory rights as a consumer.
All contracts of sale made by the Seller shall be deemed to incorporate these terms and conditions which shall prevail over any other document or communication from the Buyer.
If any amendments to these terms and conditions are required it is preferable that they be confirmed in writing.
Acceptance of delivery of Goods shall be deemed conclusive evidence of the Buyers acceptance of these Conditions.
3: Prices and carriage All Prices are exclusive of VAT and Transport Costs (plus VAT) which shall be paid in addition.
In the case of consumer sales, payment must be made in full before dispatch of any Goods.
The price of the Goods shall be that stated in the Company’s quotation
The Company shall have the right in respect of any uncompleted portion of the Contract to adjust its prices for any increase in the price of any materials, labour, transport, changes in work or delivery schedules or quantities or any other costs of any kind arising for any reason after the date of the Contract
All prices quoted either in a company catalogue or by written quotation are carriage paid England, Scotland, Wales, mainland.
All quoted prices are exclusive of VAT which will be levied in accordance with current legislation applicable at the time of supply (except zero rated items). The Company’s VAT registration number is
The Company reserves the right to alter prices of unsold stock at any time and without notice to reflect significant currency changes, imposed fuel surcharges and unforeseen charges
Where the Company is requested to delay or withhold delivery by the Customer for any reason the Company may in its absolute discretion charge for any costs arising there from including but not limited to additional husbandry
The Company has an absolute discretion to make a delivery charge for any goods ordered
In the case of other sales, payment is due in full on the terms of credit agreed which shall not be more than 30 days from the date of invoice.
4: Interest on Overdue Invoices The seller reserves the right to charge interest on overdue invoices. The Interest (where charged) shall accrue from the date that payment becomes due from day to day until the date of payment.
Any interest charged will be at 2% above National Westminster Bank PLC base lending rate for the time being in force per calendar month.
If the Buyer fails to pay within the agreed terms the seller reserves the right to withdraw the services and place the buyers account on hold.
5: Delivery Transport costs will be borne by the buyer.
All times and dates for delivery are given in good faith but are only approximate. Time shall not be of the essence of the contract and no liability is accepted for any loss or damage resulting from late delivery.
It is the Customer’s own responsibility to provide a safe area for the delivery of all goods and no liability can be accepted by the Company in connection therewith.
Where deliveries are made on Container Centralen (CC) trolleys, exchange will be accepted only on genuine RFI labelled/tagged stock within the system.
The equal quantity of empty CC labelled/tagged trolleys and shelves must be exchanged on the same lorry that has made the delivery and in good condition. Failure to do so may result in a charge.
Ownership of trolleys, containers and shelves shall in no circumstances pass to the Customer.
Whilst every reasonable effort shall be made to keep any delivery date, time of delivery shall not be of the essence and the Seller shall not be liable for any losses, costs, damages or expenses incurred by the Buyer or any other person or Company arising directly or indirectly out of any failure to meet any estimated delivery date.
Delivery of the Goods shall be made to the Buyer’s address or as otherwise requested and the Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6: Ownership and Risk Risk in the Goods shall pass to the Buyer upon delivery of the Goods or upon the Goods being appropriated to the Buyer but kept at the Seller’s premises at the Buyer’s request.
Ownership of the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods.
The Buyer shall inspect the Goods immediately upon receipt and shall notify the Seller within 48 hours if the Goods are damaged or do not match their description. If the Buyer fails to notify the Seller that the Goods are defective within 48 hours of delivery, the Buyer is deemed to have accepted the Goods.
The Seller shall not accept any liability for damage or defects to the Goods once they have been planted by the Buyer.
The Seller may inspect the Goods, either by asking the Buyer to return the Goods, or by sending a nominated person to inspect the Goods to assess whether they are faulty.
If the Seller agrees that the Goods are faulty, and that the fault was not caused by the Buyer’s neglect, misuse or weather damage, it will, at the Buyer’s election replace, refund or repair (if possible) the faulty Goods at no additional cost to the Buyer.
Any Goods in respect of which any claim of defect or damage is made shall be preserved by the Buyer intact together with the original packing at the Buyer’s risk and retained by the Buyer for a reasonable period to enable the Seller or its agent to inspect or Collect the Goods.
7: Cancellation and Returns If it is agreed that the goods are to be returned :‐
a) the Buyer will be liable for the cost of remedying any damage to the Goods returned where such damage has, in the opinion of the Seller, been caused by the Goods being inadequately packaged by the Buyer or through the Buyer’s fault.
c) the Seller reserves the right to make a handling and restocking charge of 25% on Goods which are returned if they were ordered in error or are no longer required.
Orders for Goods which have to be grown or acquired especially for the Customer, or which are put aside especially for the Customer, may only be cancelled with the Company’s agreement in writing and on terms that the Customer indemnifies the Company in full against all loss (including but not limited to loss of profit) costs, damages and expenses incurred by the Company as a result of cancellation
Any order placed by the Customer and accepted by the Company may not be cancelled in whole or in part except with the prior agreement in writing of the Company. If agreement is given by the Company, a cancellation surcharge will be made to cover the Company’s actual or anticipated loss. The Company reserves the right to charge the full price of the goods by way of a cancellation charge.
The Seller reserves the right to make a handling, maintenance and administration charge of 25% on confirmed orders that are cancelled prior to delivery of goods.
If items either cancelled or returned have been specially purchased e.g. not normally stocked, the seller reserves the right to make a handling, maintenance and administration charge of 75% of the sales price of the item(s) ordered or render a charge equal to the cost of the item(s) whichever the greater.
8: Force Majeure In the event that the Seller is prevented from carrying out its obligations under a contract for sale as a result of any cause beyond its control such as but not limited to Acts of God, War, Strikes, Lock‐outs, Flood and Failure of third parties to deliver goods, the Seller shall be relieved of its obligations and liabilities under such contract for sale for as long as such fulfilment is prevented.
The Company shall not be liable for any failure or delay in performing obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure event. This 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, industrial disputes, failure of energy sources or transport networks, acts of God, war, terrorism, fire, floods or any other natural disasters or extreme adverse weather conditions
9: No Waiver The Seller’s failure to insist upon strict performance of any provision of these Conditions shall not be deemed to be a waiver of its rights or remedies in respect of any present or future default of the Buyer in performance or compliance with any of these conditions.
10: Liability Except as may be implied by law where the Buyer is dealing as a consumer, in the event of any breach of these Conditions by the Seller the remedies of the Buyer shall be limited to damages which shall in no circumstances exceed the price of the Goods and the Seller shall under no circumstances be liable for any indirect, incidental or consequential damage.
11: Complaints If you have a complaint about our service or any goods or services then please contact us immediately.
12: Misc Any contracts shall in all respects be construed and operate as an English contract and in conformity with English law. 12.2 If any part of these terms and conditions that is not fundamental is found to be illegal or unenforceable, such finding will not affect the validity or enforceability of the remainder of these terms and conditions.
13: WARRANTY & LIABILITY The Company warrants that the Goods shall conform to any specification agreed by the Company in writing and that they will comply with their description and be of satisfactory quality
The risk in the Goods shall pass to the Customer upon delivery/collection 10.3 The Company shall under no circumstances have any liability for; any defects resulting from weather, accident, failure to plant, failure to tend or general neglect
for the suitability of any Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to the Company It is the Customers responsibility not to mistreat or neglect goods supplied
During periods of inclement weather including storm, freezing temperatures or excessive heat, the Company may in its absolute discretion and without bringing itself in to breach of contract for failure to perform, withhold or delay indefinitely the delivery of any Goods ordered by the Customer
Where in the exercise of the Company’s absolute discretion under clause ??? the Company incurs any additional costs for storage and husbandry or both the Company may so charge the Customer
The Company shall not be liable to the Customer for loss of profit, loss of contracts, consequential, special or indirect loss or damage whether arising from negligence, breach of contract or otherwise even if the Company has been advised of the possibility of such loss or damage
Any queries or complaints arising must be notified to the Company in writing within seven days of the receipt of Goods
Any queries or complaints that arise after this date must be notified to the Company as soon as they become apparent, including full details of all relevant issues. Should it be necessary for a representative to attend a site inspection the Company reserve the right to charge for all expenses incurred in undertaking this visit
Any compensation due to the customer following clause 10.9 shall not exceed the invoice price for the Goods in question
14: THIRD PARTY RIGHTS A person who is not a party to the Contract shall not have any rights under or in connection with it
15: RETENTIONS No retentions and/or discounts are acceptable unless negotiated at the enquiry stage and clearly stated on every Customer’s official order
16: LAW AND JURISDICTION The conditions shall be interpreted in accordance with the laws of England and Wales and any dispute hereunder shall be subject to the exclusive jurisdiction of the Courts of England and Wales
17: GENERAL These conditions together with the Customer’s order and the Company’s order confirmation contain the entire agreement between the parties
Any utilisation by the Company of any order number or similar reference of the Customer will solely be for the purpose of identification for the convenience of the Customer and is not and will not be intended to imply acceptance of any terms and conditions accompanying such references or in which such reference is embodied.
The Customer shall be deemed to have accepted the Terms and Conditions herein which shall constitute the whole of the contract between the parties. Unless otherwise agreed in writing these Terms and Conditions shall override and Terms and Conditions stipulated, incorporated or referred to by the Customer whether in the order, or negotiations.
Any contract incorporating these conditions is personal to the Customer and the Customer may not without the prior written consent of the Company assign its rights or obligations under any contract
18: QUOTATIONS means Todds Nursery Ltd
means the person, firm or company from whom orders for Goods are received by the Company
means any contract for the sale of Goods and/or services by the Company to the Customer
means any goods forming the subject of this contract including parts and components of or materials incorporated in them
Quotations by the Company unless otherwise stated in them shall be valid for 28 days and shall in any event be subject to availability of the Goods referred to in them.
19: EXISTENCE OF CONTRACT No contract shall come in to existence until the Customers order (however given) has been accepted and confirmed
The Customer shall be responsible for ensuring the accuracy of its orders
Clerical errors made by the Company may be corrected at any time without any liability on the part of the Company
20: PAYMENT The price of the Goods is exclusive of amounts in respect of value added tax (VAT)
The Company shall be entitled to require payment for the Goods in full upon acceptance of the Customer’s order
The Company may in its sole discretion, invoice the Customer for the price of the
Goods on receipt of the Customers order or at any time prior to or after delivery of the Goods
The Customer shall pay the invoice in full and in cleared funds as per the due date outlined in the invoice. Time of payment is of the essence
If the Customer fails to pay on time the Company is entitled to withhold all further deliveries to the Customer, regardless of whether the deliveries are mutually interrelated
Customers will be required to pay against proforma invoices for all goods prior to collection or delivery except where account facilities have been previously expressly granted in writing.
If account facilities are required Customers are required to furnish two satisfactory trade references and the address of their bank. The granting of account facilities is in the absolute discretion of the Company.
Where account facilities have been granted, unless otherwise agreed by the Company payment of invoices issued by the Company to the Customer shall be strictly net monthly (i.e. by the last day of the month following the month in which the goods were invoiced). In this clause time is of the essence.
If payment in full is not made in accordance with clause 7.3 the Company will be entitled to interest on the full amount due at a rate per month calculated on a daily basis from the due date (at National Westminster Bank Plc base rate plus 5%) until payment in full (including interest) is made compounded monthly.
This clause is not intended as an offer of extended credit and action to recover an outstanding debt may be taken at any time after an account is payable.
The Company reserves the right to withdraw any discounts agreed where the Customer has not complied with the provisions of clause 7.3.
The Company may withhold delivery of goods to the Customer if awaiting payment of any sum due from the Customer to the Company under any other contract.
21: TITLE For the purpose of section 12 of the Sale of Goods Act 1979 the company shall transfer only such title or rights in respect of the Goods as the Company has and if the Goods are purchased from a third party shall transfer only such title or rights as that party had and has transferred to the Company
Until ownership of the Goods has passed to the Customer, the Customer shall:
Hold the Goods on a fiduciary basis as the Company’s trustee
store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property
not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery
Delivery of the Goods shall be made when the Company makes the Goods available to the Customer or its agent or carrier at the Company’s premises or other agreed delivery point
Where delivery takes place other than at the Company’s premises the Customer shall be responsible for providing unobstructed access to a clear and safe site for the purpose of off-loading and it shall be the responsibility of the Customer to ensure at its own cost that appropriate equipment is available for off-loading purposes
Time for delivery will be estimated as accurately as possible but is not guaranteed, and the Company accepts no liability for loss, damage or consequential loss in respect of delay in delivery
22: Orders All orders are accepted subject to the goods being unsold at the time of placing the orders and to subsequent crop shortage or failure howsoever caused.
No liability is accepted for non-availability of goods.
Any confirmed order placed by the Customer is subject to the Company’s minimum order requirement of one full Danish Trolley with an average value of £300 per trolley.
Reserve orders may be placed for call off at a later date subject to each “call-off” complying with the provisions of Clause 3.2 and to the total order being fully taken up by a date agreed by the Company.
23: Pre-pricing and Coding Should individual plant labels be supplied the Company’s liability is limited to the supply of a replacement correctly priced and coded label if requested and no further or other liability will be accepted in this context; “coded” includes bar codes and all other point of sale codes.
24: Damages and complaints It is the Customer’s own responsibility to examine goods upon receipt. No complaints relating to defects or shortages apparent upon such inspection will be accepted unless notified within 48 hours from date of delivery and confirmed within five days in writing.
The Company’s liability for goods supplied is limited to replacement of faulty goods or at the Company’s option a refund of the purchase price and no liability for consequential loss is accepted.
Compensation for shortfalls in delivery will be limited to the value of goods not delivered and no liability for consequential loss is accepted.
25: Risk and Property Risk of damage to or loss of the goods shall pass to the Customer when the goods are delivered to the Customer’s premises.
Notwithstanding delivery and passing risk in the goods the property in the goods shall not pass to the Customer until the Company has received in cleared funds payment in full of the price for the goods and all other expenses agreed to be paid by the Customer. Until that time the Customer shall hold the goods to the Company’s order save that the Customer shall be entitled to re-sell or use the goods in the ordinary course of business but shall then account to the Company for the proceeds of sale or otherwise and shall keep all proceeds separate from any other monies of the Customer.
Until such time as the property in the goods passes to the Customer the Company shall be entitled to enter upon any premises of the Customer and repossess the goods.
26: Export All packing, freight and other incidentals relating to export are charged at cost and it is the Customer’s responsibility to provide the Company full information regarding import regulations and permits. The Customer hereby indemnifies the Company against any liability, costs, damages or the like for the export of items restricted in the country of delivery. Advance payment may be required for overseas orders. Insurance of the goods is the responsibility of the Customer.
27: Substitutions Should the Company be out of stock of any specific size or variety, the nearest size or variety will be supplied unless otherwise instructed.
28: Collection of Orders The Company will on request arrange for Customers to collect their orders from the premises of Todds Nursery Ltd.
29: Force Majeur If the Company are unable to make delivery of goods which are the subject matter of a contract, owing to Act of God or any other cause whatsoever beyond the Company’s control, the contract in respect of any goods undelivered thereunder may be cancelled by the Company by giving notice in writing to the Customer, in which case the Customer shall have no claim against the Company in respect of such goods.
30: Severability of Terms and Conditions Each of the Terms and Conditions hereof shall be treated as independent and severable and should any of the above Terms and Conditions be or be declared invalid before a Court of competent jurisdiction then such term or condition shall be deemed to be deleted from these Terms and Conditions and the remaining Terms and Conditions shall be treated as being unaffected by such deletion.