TERMS AND CONDITIONS OF BUSINESS
These are the Terms and Conditions of business for Grafton Nursery and the website Hardy-Eucalyptus.com. If you do not find what you are looking for in this section or if anything is unclear, do get in touch.
The following standard business terms and conditions are unfortunately necessary in a modern world, but not intended in anyway way to be a 'sledge hammer to crack a nut' or to impede your enjoyment or use of our website
These terms and conditions supersede all previous terms and conditions and associated agreements.
We want you to be delighted with the quality of the plants and service you receive from us. We always endeavour to send out the happiest and healthiest of plants and we are always pleased to talk to our customers.
If, for any reason, you are not happy with any aspect of your interaction with Grafton Nursery, please email me, Hilary Collins at firstname.lastname@example.org or you can write to me at Grafton Nursery, Grafton Flyford, Worcester WR7 4PW or contact me by telephone on 0751 526 1511 and we will do our utmost to resolve the issue amicably.
Grafton Nursery retains the copyright and IP rights (where applicable) over the entirety of this website, including the images, but excluding those images where the copyright has been clearly assigned to the originator.
In placing of an order with us, you are agreeing that you understand and agree to abide by these Terms and Conditions of Business.
The following terms and conditions apply to the sale of goods to you ('the Customer') by Hardy-Eucalyptus ofGrafton Nursery ('the Supplier').
1.1 In these Conditions the following definitions apply:
Business Day means a day other than Saturday, Sunday and public holidays;
Conditions means the terms and conditions set out in this document;
Contract means the agreement between the Supplier and the Customer for the sale of Goods/Plants incorporating these Conditions;
Delivery Location means the address for delivery of the Goods/Plants as set out in the Order or the Supplier’s quotation (as applicable);
Force Majeure means an event or sequence of events beyond the Supplier's reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster or general weather conditions; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption, delay or failure of supplies to the Supplier of power, fuel, water, transport, equipment, courier service, workmen or telecommunications service, or material required by or for performance of the Contract;
Goods/Plant means any goods or plant material to be supplied by the Supplier to the Customer;
Order means the Customer's order for the Goods from the Supplier;
VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods/Plants.
1.2 Unless the context otherwise requires:
1.2.1 each gender includes the others;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.4 clause headings do not affect their interpretation;
1.2.5 general words are not limited by example;
1.2.6 references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time; and
1.2.7 references to 'writing' includes emails.
2 Application of these terms and conditions
2.1 These Conditions apply and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase order, confirmation of order, specification or other document will form part of the Contract.
2.3 No variation of these Conditions or to an Order, or to a quotation from the Supplier will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
2.4 Each Order by the Customer to the Supplier will be deemed to be an offer to purchase the Goods/Plants subject to the Conditions.
2.5 An Order will be accepted by the Supplier only when it confirms so to the Customer at its sole discretion. The Supplier reserves the right at all times to reject any Order, in whole or in part, at its sole discretion. If the Supplier accepts an Order by confirming the same to the Customer then there will be a binding agreement in place between the Supplier and the Customer for the supply of the relevant Goods/Plants to the Customer. No Order which has been accepted by the Supplier shall be cancelled by the Customer except with the written agreement of the Supplier.
2.7 The Supplier's employees or agents are not authorised to make any representations concerning the Goods/Plants unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed but nothing in these Conditions affects either party's liability for fraudulent misrepresentation.
2.8 The Customer shall be responsible to the Supplier for ensuring the accuracy of any Order and giving the Supplier such information as may be necessary for the Supplier to perform the Contract in accordance with the Conditions.
2.9 The Supplier may at any time on giving written notice to the Customer make changes to the Goods/Plants which are necessary to comply with any applicable safety or other statutory requirements.
3 Quotations and Price
3.1 Any quotation by the Supplier for the provision of Goods/Plants will be deemed to be:
3.1.1 an invitation to treat (and shall not be an offer) by the Supplier to supply Good/Plants on and subject to the Conditions; and
3.1.2 will be valid for 28 days only from the date of issue (unless otherwise stated on the quotation); and
3.2 Quotations include anticipated transport, travel and subsistence costs but do not include:-
3.2.1 unloading, hoisting, storage or distribution of the Goods/Plants to storage which the Customer is required to do at its own cost;
3.2.2 scaffolding and platforms required for the delivery of the Goods/Plants which will be provided by the Customer at its own cost;
3.2.3 the cost of any caretakers or porters who are to provide access to the Delivery Location which the Customer shall arrange at its own cost;
3.2.4 deliveries via pallet networks and similar are strictly to the Customers kerbside outside the Customer’s property only; portage on to the Customers property will be provided by the Customer at its own cost
3.2.5 unpacking of goods to be carried out by the Customer at its own cost
3.3 Quotations are not binding on the Supplier and the Customer acknowledges that the Supplier may need to make charges in addition to the charges set out in its quotation. This can occur for a number of reasons, including (but not limited to) if:-
3.3.1 the Customer requests additional or different Goods/Plants (and the Supplier has agreed to make such changes or additions);
3.3.2 additional or different Goods/Plants are necessary in the opinion of the Supplier to comply with applicable health and safety or statutory requirements (and the Supplier has agreed to such changes);
3.3.3 additional or different Goods/Plants are necessary in the opinion of the Supplier as a result of incorrect or misleading information provided to the Supplier;
3.3.4 it becomes apparent to the Supplier that the amount of Goods/Plants or the type of Goods/Plants needed to satisfy the Customer's request(s) is different to what was notified when the quotation was provided;
3.3.5 there has been change, for example to the Delivery Location, Equipment, other goods, equipment, items or premises which affect the supply of the Goods/Plants;
3.3.6 the supply of the Goods/Plants are interrupted (other than at the fault of the Supplier).
The Supplier will inform the Customer in advance of any such additional cost where possible.
3.4 Subject to clause 3.3 the price for the Goods/Plants ('the Price') will be as set out in the Supplier’s quotation or in default of such provision will be calculated in accordance with the Supplier's standard scale of charges in force on the date of formation of the Contract.
3.5 Where applicable, all prices are inclusive of VAT at the then-applicable rate. Grafton Nursery is currently not VAT registered
3.6 Where the Contract is for the supply of Goods/Plants only, the Price is payable in full in cleared funds before Goods/Plants will be dispatched to the Customer.
3.7 The Supplier shall be entitled to charge the Customer storage charges at a rate of 2.5% per month of the Price if the Supplier is required to hold Goods/Plants (or other materials relating to the supply of Goods/Plants under the Contract) for more than 30 days after the estimated delivery date.
3.8 The Supplier reserves the right to claim statutory interest at 8% above the Bank of England interest rate in force on the date that any payment to it from the Customer becomes overdue and at any subsequent rate where the reference rate changes and the debt remains unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as may be amended from time to time.
3.9 Without prejudice to or limiting any other rights that the Supplier may have, where any sums due to the Supplier are not paid in full in cleared funds by the date due the Supplier may:
(a) suspend or cancel the delivery or supply of Goods/Plants to the Customer;
(b) terminate all and any Contracts with the Customer on giving written notice.
3.10 If any deposit is paid to the Supplier in respect of the Goods/Plants then such deposit will not be refunded to the Customer. The Supplier will not pay interest on any deposit held.
4 Right to cancel the contract
4.1 Subject to the terms of this clause, you have the right to cancel the contract between you and us within 14 days without giving any reason. However, you do not have right to cancel the contract between you and us if:-
4.1.2 we are to supply goods which are grown specifically for you and/or your Company.
4.2 If you have the right to cancel the contract, the cancellation period will expire after 14 days from the day on which you acquire or a third party (other than the carrier) indicated by you acquires physical possession of the goods.
4.3 To exercise the right to cancel, you must inform us of your decision to cancel the contract by a clear statement (eg a letter sent by post or email). You can use the model cancellation form set out in the box below, but it is not obligatory.
To Grafton Nursery
Worcester Road, Grafton Flyford, Worcester, WR7 4PW / email@example.com
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]...............................................................
Ordered on [*]/received on [*],
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
[*] Delete as appropriate
4.4 To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
4.5 In the event that you need to cancel a specific grown-to-order batch of plants, you need to email us within 14 days of the date on which you placed the order. Once this deadline has expired, the order cannot be cancelled and must be paid for in full.
5 Effects of cancellation
5.1 If you cancel the contract between you and us, we will reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs arising if you chose a type of delivery other than the least expensive type of standard delivery offered by us).
5.2 We may make a deduction from the reimbursement for loss in value of any goods supplied, if the loss is the result of handling by you other than what is necessary to establish the nature, characteristics and functioning of the goods/plants.
5.3 For the avoidance of doubt (without limiting the effect of clause 5.2) if in the case of plants, they are not alive, nor of re-saleable quality when returned to us (for example if the plants are dry, have not been cared-for including sufficient watering throughout their stay with you, or the leaves and shoots are damaged in any way) then this is likely to result in a deduction being made in accordance with clause 5.2. Plants must remain in their original growing container with original label and associated plant supports, must have been kept frost free at all times and watered every day without fail, but not waterlogged by sitting in water for any duration of time. Dry goods must be kept in their original packaging, sealed and be of merchantable quality when returned/upon receipt by us.
5.4 We will make the reimbursement without undue delay, and not later than:
5.4.1 14 days after the day we received back from you any goods/plants supplied, or
5.4.2 (if earlier) 14 days after the day you provide evidence that you have returned the goods/plants, or
5.4.3 if there were no goods/plants supplied, 14 days after the day on which we are informed about your decision to cancel the contract.
5.5 We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
5.6 If you have received goods/plants upon cancelling your order:
5.6.1 you shall take reasonable care of the goods/plants and in the case of dry goods, not use them(see clause 5.3) and in the case of plant material – not plant them out or pot them on, see clause 5.3
5.6.2 you shall send back the goods/plants or hand them over to us, without undue delay and in any event not later than 14 days from the day on which you communicate your cancellation from the contract to us. The deadline is met if you send back the goods/plants before the period of 14 days has expired.Plants and Goods must be returned to us in a merchantable condition (see clause 5.3) and in their original packaging
5.6.3 you will have to bear the direct cost of returning the goods/plants
5.6.4 you are liable for any diminished value of the goods/plants resulting from the handling other than what is necessary to establish the nature, characteristics and viability of the goods/plants.
6.1 The Goods/Plants will be delivered to the Delivery Location as stated on the order form.
6.2 Goods/Plants supplied will be deemed delivered on arrival of the Goods/Plants at the Delivery Location. You agree that proof of delivery supplied by our delivery company or courier service is sufficient evidence to establish that goods/plants have been delivered to your appointed destination. Once your order has been delivered to your designated delivery address and left either with you, your appointed representative or left in the safe place you instructed at the time of ordering; at this point, Hardy-Eucalyptus of Grafton Nursery cannot accept liability for the safety, security or well-being of the goods/plants, unless we or our couriers have been negligent.
6.3 Goods may be delivered by instalments. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
6.4 The Supplier will use its reasonable endeavours to meet estimated delivery dates and dates provided but such dates are approximate only, and time of delivery of Goods is not of the essence.
6.5 The Supplier will not be liable for any delay in or failure of delivery of the Goods:
6.5.1 caused by the Customer's failure to: (i) make the Delivery Location (or other location, equipment or items necessary for the delivery of the Goods) available, (ii) prepare the Delivery Location in accordance with the Supplier's instructions as required for the provision of the Goods or (iii) provide the Supplier with adequate instructions, for delivery or otherwise relating to the Goods or (iv) any delay or failure by any third party to supply goods to the Customer; or
6.5.2 an event of Force Majeure; or
6.5.3 the Customer requesting additional or alternative Goods which is agreed by the Supplier; and the Supplier shall have the right to extend all agreed execution programs as a result of any such failure, event or request.
6.7 The Supplier reserves the right to delay delivery of Goods in the event that the Delivery Location (or such other location it is necessary to attend) is not (in the reasonable opinion of the Supplier) suitable for delivery of the Goods. Without prejudice to the generality of the foregoing the Supplier may delay delivery of Goods if:-
6.7.1 the Delivery Location is not secure;
6.7.2 safe storage is not available near to the Delivery Location.
6.8 If, 10 Business Days after the due date for delivery or collection of the Goods, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods. If such Goods are resold or otherwise disposed of, the Supplier will:
6.8.1 invoice the Customer for reasonable storage charges and costs of resale; and
6.8.2 account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the price paid by the Customer for the Goods.
7 Goods, Title and risk
7.1.1 The Supplier shall have the right to substitute for dry Goods specified in the Contract for other dry goods or materials provided such substitutes have substantially the same quality and appearance as the dry Goods specified in the Contract, unless the customer states otherwise at the time of placing the order
7.1.2 The Supplier shall have the right to substitute for a plant variety/species in the Contract for another plant variety/species provided such substitutes are substantially the same quality, size and appearance as the plant variety/species specified in the Contract, unless the customer states otherwise at the time of placing the order
7.2 The Customer acknowledges that some Goods and plants supplied by the Supplier are fragile and require delicate handling.
7.3 The Customer must notify the Supplier, either by telephone or email, within 24 hours if any Goods or plants are found to be damaged or faulty. The Customer shall provide such evidence of alleged damage or fault as the Supplier may reasonably request, including photographs. The Supplier may at its discretion replace or refund the price of damaged or faulty Goods. If the Supplier requests that such Goods are returned to it then the Customer will return such Goods in their original packaging.
7.4 If the Customer discovers within 2 Business Days of delivery of the Goods/plants that they have ordered Goods/plants of the wrong specification then the Supplier may at its discretion allow the return of such Goods/plants and supply alternative Goods/plants to the Customer provided that:-
7.4.1 such alternative Goods/plants being available;
7.4.2 the price of the alternative Goods/plants being agreed by the Customer;
7.4.3 the Customer bearing the cost of returning the Goods/plants to the Supplier; and
7.4.4 the Customer paying an administration charge of up to 20% of the value of the Goods/plants being returned;
7.4.5 Goods/plants made or grown to the Customer’s specification cannot be returned.
The risk in the Goods/plants returned to the Supplier under this clause 5.4 remains with the Customer until such Goods/plants have arrived at the Supplier’s premises and the Supplier reserves the right to charge the Customer for Goods/plants found damaged on arrival. Such Goods/plants are to be returned to the Supplier in their original packaging.
7.5 Risk in the Goods/Plants will pass to the Customer on arrival of the Goods at the Delivery Location. Unless otherwise agreed in writing the Customer will unload the Goods/Plants at its own cost and risk.
7.6 Title to the Goods/Plants will not pass to the Customer until the Supplier has received payment in full and cleared funds for all charges due in respect of the relevant Contract under which the Goods/Plants are supplied.
7.7 Until title to the Goods/Plants has passed to the Customer, the Customer will:
a. hold the Goods/Plants as bailee for the Supplier;
b. store the Goods/Plants separately from all other material in the Customer's possession;
c. take all reasonable care of the Goods/Plants and keep them in reasonable and saleable condition;
d. insure the Goods/Plants: (i) with a reputable insurer (ii) from the time and date of delivery (iii) against all risks (iv) for an amount at least equal to the Price;
e. ensure that the Goods/Plants are labelled and clearly identifiable as belonging to the Supplier;
f. not remove or alter any mark on or packaging of the dry Goods, ensure that Plants are unpacked appropriately, cared for, kept frost free, given sufficient light and water to keep them in a saleable condition, kept correctly labelled;
g. inform the Supplier as soon as possible if it becomes subject to any of the events set out in clause 10.1;
h. provide the Supplier such information concerning the Goods/Plants as the Supplier may request from time to time.
7.8 If, at any time before title to the Goods/Plants has passed to the Customer, the Customer has, or the Supplier reasonably believes the Customer is likely to, become subject to any of the events specified in clause 10.1, the Supplier will be entitled to:
7.8.1 repossess all or any of the Goods/Plants and to take possession of all or any goods incorporating Goods/Plants; and
7.8.2 require the Customer at the Customer’s expense to redeliver the Goods/Plants to the Supplier and if the Customer fails to do so promptly, enter any premises where the Goods/Plants are stored and repossess them with such transport as may be necessary or instruct agents to do so.
7.9 The Customer warrants that it is not at the time of entering into the Contract insolvent and knows of no circumstance which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.
8 Customer’s Obligations
8.1 The Customer will at its own cost and expense:
8.1.1 place all Orders on the terms of the Conditions and ensure that their contents are complete and accurate;
8.1.2 ensure that each part of any specification or other information which it provides is complete and accurate and contains all information the Supplier may require;
8.1.3 co-operate fully with the Supplier in relation to delivery or collection of the Goods/Plants and comply with such instructions that the Supplier may issue during the provision of the Goods/Plants. Any instructions supplied by the Supplier are for instruction purposes only and are not binding on the Supplier;
8.1.4 ensure that the Delivery Location (and such other location attended in the provision of the Goods/Plants) and equipment that it is to supply for the provision of the Goods/Plants is available and accessible at the estimated time for delivery of the Goods/Plants and ensure that the Delivery Location (and such other location attended in the provision of the Goods/Plants) and equipment that it is to supply is available and accessible for inspections as may be requested by the Supplier prior to the provision of the Goods/Plants;
8.1.5 be responsible for the security of the Delivery Location and its own property and equipment;
8.1.6 take all such steps as may be necessary to ensure and preserve the health and safety of the Supplier, its employees and sub-contractors on any site that may be attended by them in connection with the provision of the Goods/Plants and ensure that the Delivery Location (and such other location attended in the provision of the Goods/Plants) and equipment supplied by the Customer is safe and compliant with all relevant health and safety laws and regulations;
8.1.7 provide the Supplier with such information as it reasonably requires (including but not limited to information as to any asbestos or other materials that may cause harm present at the Delivery Location or any other location attended in the provision of the Goods/Plants);
8.1.8 provide the Supplier with such health and safety information that may apply to the Delivery Location or any other site it attends in the provision of the Goods;
8.1.9 protect its own property and belongings (including but not limited to its carpets, furniture, partitions, decoration, lifts, staircases, floors, windows) during the delivery of the Goods/Plants;
8.1.10 ensure that there is a constant and safe supply of electricity at the Delivery Location (or such other location as may be necessary) sufficient for the delivery of the Goods/Plants;
8.1.11 ensure that appropriate welfare facilities (including but not limited to toilet facilities) are available to the Supplier’s employees, agents and sub-contractors during the provision of the Goods/Plants;
8.1.12 supply such scaffolding and platforms as the Supplier may request for the delivery of the Goods/Plants;
8.1.13 ensure that all necessary permissions, consents, licenses and approvals are obtained in relation to the performance of the Goods/Plants (including but not limited to planning permission, building regulation approval and landlord’s consents); and the Supplier will not be responsible or liable to the Customer for any failure of the Customer to comply with its obligations.
9.1 The Supplier does not limit or exclude its liability:
9.1.1 for death or personal injury caused by its (or its employees) negligence; or
9.1.2 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;
9.1.3 for defective products under the Consumer Protection Act 1987; or
9.1.4 for fraud or fraudulent misrepresentation.
9.2 Subject to clause 9.1 the Supplier’s total aggregate liability in respect of all claims, losses or damages, whether arising from contract, tort (including negligence) or otherwise under or in connection with the Contract shall in no event exceed the amount of the Supplier’s charges for the Goods/Plants and under the Contract in connection with which such claim is made.
9.3 Subject to clause 9.1 the Supplier shall not be liable for:-
9.3.1 any indirect, special or consequential loss or damage, or
9.3.2 any loss of profit, turnover, business opportunity or damage to goodwill (whether direct or indirect), howsoever arising.
9.4 Without prejudice to the generality of the foregoing, the Supplier shall not be responsible or liable for:-
9.4.1 any breach by the Customer of the Contract (including but not limited to these Conditions);
9.4.2 any act or omission of the Customer or any third party;
9.4.3 goods/plants supplied to the Customer by any third party;
9.4.4 the cost of repairing any pre-existing faults or damage to any site that we discover in the course of the provision of the Goods/Plants;
9.4.5 claims arising from or connected to Goods/Plants supplied by us but nominated or selected by the Customer or another third party where the Supplier has expressed doubts to the Customer in respect of such Goods/Plants availability, suitability, quality or performance;
9.4.6 the failure of the Customer or any third party to follow the Supplier’s instructions as to storage, installation, fitting, commissioning, use, maintenance or after-care.
9.5 Hedge Law: If a customer requests and purchases evergreen or semi-evergreen material with which to grow a hedge/screen, which ultimately leads to contravention of the 'Hedging Law' (Anti-Social Behaviour Act 2003: Part 8 in 2005), Grafton Nursery is in no way liable for any resulting fines or enforcement action should any issue arise between the customer and any third party claimant.
9.6 Plants: The Supplier believes all plants supplied to be true to name, but in the event of an error, the Supplier’s liability to pay charges or compensate shall not exceed a refund of the price originally paid by the customer.
9.7.1 Accuracy of data displayed on the website Hardy-Eucalyptus: Information on this website has been gathered over many years from research documents, books, information already freely available on the web and also based on growing experience. The cultural and species information is offered only as a general guide, all heights and measurements are approximate. It is pertinent that plant growth and vigour can be significantly influenced by specific garden/plantation conditions and environmental factors and variations will occur.
9.7.2 To the best of the Supplier’s belief, this data is accurate and correct; it is supplied with the best of intentions to assist plant enthusiasts to make informed decisions and to help them grow the plants in optimal conditions. It is intended as a helpful guide only; it is strongly recommended that customers carry out their own research, if they intend to invest in plant material with a specific purpose or project in mind.
9.7.3 The Supplier cannot guarantee that the information contained within this website or hardy-eucalyptus printed material is 100% accurate and will not accept any liability for decisions taken by customers nor consequences arising therefrom, based on the information provided in this website and associated printed material, including correspondence by letter or email. Grafton Nursery will ensure speedy correction of any website errors and/or omissions after having been notified of such and will only be held liable for direct loss up to a maximum value amounting to the total price paid by a customer in respect of any claim.
9.8.1 In general: Grafton Nursery, encompassing everyone and everything that this entails (including the website hardy-eucalyptus.com), state that our liability, however arising and including liability for negligence, as well as all liability under the express and implied terms of any contract with the customer, is absolutely restricted to replacement, or refund of the plants as sold and delivered to the customer.
9.8.2 The Supplier will not be liable in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise out of or in connection with these terms for:
(i) any economic losses (including without limitation loss of revenues, data, profits, contracts, business or anticipated savings); or
(ii) loss of goodwill or reputation; or
(iii) special or indirect losses suffered or incurred arising out of or in connection with the provisions of any matter under these terms, even if we are made aware before the time of the Customer’s order of any circumstances that might give rise to such loss.
9.8.3 To the fullest extent permitted under applicable law, any indemnities or warranties (whether express or implied) are hereby excluded.
10 Force Majeure
The Supplier will not be liable if delayed in or prevented from performing its obligations under the Contract due to Force Majeure, provided that it promptly notifies the Customer of the Force Majeure event and its expected duration.
11.1 The Contract may be terminated forthwith at any time by the Supplier giving written notice to the Customer if:
11.1.1 the Customer commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or is not remedied within 10 days of written notice to do so;
11.1.2 the Customer suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;
11.1.3 the Customer (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (c) makes an application to court for protection from its creditors generally;
11.1.4 the Customer passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the Customer, or a winding-up order is made in relation to the Customer, other than solely in relation to a solvent amalgamation or reconstruction;
11.1.5 a receiver or administrative receiver may be or is appointed in relation to the Customer or any of its assets;
11.1.6 any creditor of the Customer attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Customer's assets, and such attachment or process is not discharged within 14 days;
11.1.7 the Customer takes or suffers any action similar to any of the above in any jurisdiction;
11.1.8 there is a material change in the management, ownership or control of the Customer;
11.1.9 the Customer suspends trading, ceases to carry on business, or threatens to do either; or
11.1.10 the Customer, (being an individual) dies or ceases to be capable of managing his own affairs or there is a petition issued for his bankruptcy.
11.2. In addition to its rights under clause 11.1 the Supplier may suspend or terminate any Contract with the Customer at any time by giving written notice to the Customer if:-
11.2.1 the Customer has failed to pay any amount due under the Contract on the due date;
11.2.2 in the opinion of the Supplier there is risk to health and safety at the Delivery Location (or any other location attended in the provision of the Goods).
11.3 On termination of the Contract for any reason:
11.3.1 the Customer will immediately pay all invoices of the Supplier then outstanding and not disputed in good faith;
11.3.2 the Supplier will, within 30 Business Days, invoice the Customer for all Goods delivered or collected or provided but not yet invoiced and the Customer will pay such invoice within 5 Business Days of the date of such invoice (unless the invoice is disputed in good faith);
11.3.3 Customer will within 5 Business Days return all materials, equipment and other property of the Supplier then in its possession or control; if it fails to do so, the Supplier may enter onto any premises owned by or under the control of the Customer and take possession of them;
11.3.4 the accrued rights and liabilities of the parties will not be affected; and
11.3.5 any clause which expressly or by implication are to survive termination will do so.
12.1 No set-off
All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless the Customer is compelled by law to deduct or withhold any such amounts, in which case it will pay to the Supplier such additional amount as will ensure that the Supplier is paid the full amount it would have received but for such deduction or withholding.
The parties are independent businesses and not principal and agent, partners, or employer and employee.
If any part of these Conditions or the Contract is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Conditions and the Contract and the remaining provisions of the Conditions and the Contract will otherwise remain in full force.
Notices under this Agreement will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
12.4.1 by first-class post: two Business Days after posting;
12.4.2 by hand: on delivery;
12.4.3 by email: one Business Day after the email was sent.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
12.6 Rights of Third Parties
This Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The terms of the Conditions prevail over those of the Order
12.8 Governing law: These terms and conditions of business will be governed only by English law and any disputes will be resolved exclusively by the English Courts.