LIMAGRAIN UK LIMITED – TERMS AND CONDITIONS OF SALE
- INTERPRETATION
- BASIS OF THE SALE
- PRODUCT STANDARDS
- AVAILABILITY ORDERS AND SPECIFICATIONS
- PRICE OF THE GOODS
- TERMS OF PAYMENT
- DELIVERY
- ACCEPTANCE AND DEFECTIVE PRODUCTS
- RISK AND PROPERTY
- FARM SAVED SEED
- TRIAL SEED
- INSOLVENCY OF CUSTOMER
- EXPORT TERMS
- INDEMNITY
- WARRANTIES AND LIABILITY
- CONFIDENTIALITY
- DATA PRIVACY
- TERMINATION
- ARBITRATION
- NOTICES
- GENERAL
1 INTERPRETATION
1.1 In these Conditions the following terms shall have the following meanings:
| “Applicable Data Protection Laws” | the Data Protection Act 2018, the UK General Data Protection Regulation (“UK GDPR”), the Privacy and Electronic Communications Regulations 2003, the EU General Data Protection Regulation (EU) 2016/679 (“EU GDPR”), the EU Directive 2002/58/EC, and any legislation and/or regulation implementing or made pursuant, or which amends, replaces, re-enacts or consolidate them, and all other applicable laws relating to the processing of personal data and privacy that may exist in any relevant jurisdiction, including, where applicable, the guidance and codes of practice issued by the Commissioner or supervisory authorities (each as defined in clause 17.1). |
| “Business Day” | means any day on which banks are open for business in the country in which the Goods and/or Services are to be delivered; |
| “Customer” | the person who accepts a Quotation given by the Supplier for the supply of the Goods and/or Services or whose order for the Goods and/or Services is accepted by the Supplier. |
| “Conditions” | the standard terms and conditions of sale set out in this document. |
| “Contract” | a contract for the purchase and sale of the Goods and/or the Services on the Conditions set out in this document. |
| “Farm Saved Seed” | seed planted on a farmer’s own holding using material harvested from his own holding. |
| “Goods” | the goods (including any instalment of the goods or any part of them) described in the Quotation, which the Supplier is to supply in accordance with these Conditions. |
| “Protected Variety” | a variety granted plant breeders’ rights under the Plant Varieties Act 1997 or Regulation (EC) No 2100/94. |
| “Quantity” | the quantity stated to be despatched by the Supplier in accordance with the Quotation with a variation of up to plus or minus 10% by weight. For seed sold by the vehicle or container load, the Quantity means the quantity stated to be despatched by the Supplier in accordance with the Quotation accurate to the number and size of the vehicle(s) or container(s). |
| “Quotation” | Quotation means an offer for the supply of Goods and/or Services. The quantity, quality, and description of and any specification for the Goods and/or the Services shall usually be set out in the Quotation. While in certain circumstances Quotations may be provided orally, the parties will use reasonable endeavours to record the terms of Quotations in Writing. |
| “Services” | the services (including any part of them) described in the Quotation, which the Supplier is to supply in accordance with these Conditions. |
| “Supplier” | Limagrain UK Limited, a company registered in England and Wales with company number 1305690, whose registered office is at Joseph Nickerson Research Centre, Rothwell, Market Rasen, Lincolnshire, LN7 6DT. |
| “Writing” | Includes e-mail and comparable means of communication and “Written” will be interpreted accordingly. |
1.2 Any reference in these Conditions to any provision of a statute or statutory instrument 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 Conditions are for convenience only and shall not affect their interpretation.
1.4 Any reference to an English legal expression for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal expression.
1.5 Any reference to these Conditions or to any other agreement or document referred to in these Conditions is a reference to these Conditions or such other agreement or document as varied or novated from time to time in accordance with its terms (in each case, other than in breach of the provisions of these Conditions).
2 BASIS OF THE SALE
2.1 For the duration of the Contract, the Supplier shall sell and the Customer shall purchase the Goods and/or Services in accordance with the relevant Quotation and subject in every case to these Conditions, to the exclusion of any other terms and conditions.
2.2 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.3 The Contract shall be formed upon the Customer’s acceptance of a Quotation.
2.4 No order submitted by the Customer shall be accepted by the Supplier unless and until confirmed by the Supplier. Atthe point at which the Supplier accepts a Customer’s order, the order becomes a Quotation.
3 PRODUCT STANDARDS
3.1 Where the Goods are seeds sold by the Supplier that are certified or standard seeds the Goods shall comply at the time of delivery with the UK Seeds Regulations and, where relevant, the minimum standards of applicable EU Seeds Regulations in force at the time of supply unless otherwise stated.
3.2 All seed potatoes sold by the Supplier are unless otherwise stated sold subject to the British Potato Trade Association Terms and Conditions of Sale for Seed Potatoes (English version) in force at the time of sale (a copy of which terms can be obtained from the Supplier on request). In the event of any conflict between the British Potato Trade Association Terms and Conditions of Sale for Seed Potatoes and these Conditions, then the British Potato Trade Association Terms and Conditions of Sale For Seed Potatoes shall govern the Contract to the extent of that conflict.
4 AVAILABILITY ORDERS AND SPECIFICATIONS
4.1 All Contracts for the sale of Goods are conditional upon goods of the same or an equivalent description to those ordered by the Customer being available to the Supplier for sale to the Customer. In the event of such goods not being available to the Supplier and subject to clause 4.5 below the Supplier may rescind this Contract without being liable to the Customer for any loss whatsoever.
4.2 The Customer shall be responsible to the Supplier for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving the Supplier any necessary information relating to the Goods and/or the Services or their supply within a sufficient time to enable the Supplier to perform the Contract in accordance with its terms.
4.3 No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement of the Supplier and on terms that the Customer shall indemnify the Supplier in full against all loss (including consequential loss and loss of profit) and costs (including the cost of cancellation of any orders placed by the Supplier in order to fulfil the Contract, transportation and warehousing costs), damages charges and expenses incurred by the Supplier as a result of such cancellation.
4.4 Where the Supplier and the Customer have agreed that Goods may be delivered in instalments each instalment shall be deemed to be a separate Contract, whether or not they are included in one or more Quotations, and no failure of or delay in delivery of any instalment nor any defect in the Goods supplied in any individual instalment shall entitle the Customer to treat the Contract as repudiated with regard to any other instalment nor entitle him to defer payment for any other instalment. Each separate Contract will be governed by these Conditions.
4.5 In relation to Contracts for the sale of grass seed the Supplier reserves the right to alter the composition of grass seed mixtures supplied in the event of a shortage of supplies of any seed type forming a component part of a mixture ordered by a Customer to enable supply to the Customer to be completed.
5 PRICE OF THE GOODS
5.1 The price of the Goods and/or the Services shall be the price agreed by the Supplier and the Customer in the Quotation or, where there is no price in the Quotation, the price listed in the Supplier’s price list, current at the date of acceptance of the order.
5.2 The Supplier reserves the right by giving notice to the Customer at any time before delivery, to increase the price of the Goods and/or the Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the reasonable control of the Supplier including without limitation, any increase in commodity prices, any increase in the price charged to the Supplier for the Goods, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
5.3 The price is exclusive of any applicable value added tax, which the Customer shall be liable to pay to the Supplier in addition to the price.
5.4 Unless expressly agreed otherwise, the price is exclusive of packaging, insurance, and transport costs of the Goods, which shall be invoiced separately to the Customer. The Customer shall be liable for all such separate costs.
6 TERMS OF PAYMENT
6.1 The Customer shall pay the price of the Goods and/or the Services (less any discount to which the Customer is entitled, but without any other deduction) within (twenty-eight) 28 days of the date of the Supplier’s invoice, notwithstanding that delivery (or supply in the case of Services) may not have taken place and legal and equitable title in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract.
6.2 Payment shall not be deemed to have been received by the Supplier until the Supplier has received cleared funds.
6.3 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
- 6.3.1 cancel the Contract or suspend any further deliveries to the Customer; and/or
- 6.3.2 charge the Customer interest on a daily basis on the amount unpaid at the rate determined by the Late Payment of Commercial Debts (Interest) Act 1998 until payment in full is received by the Supplier.
6.4 The Supplier may appropriate any payment made by the Customer to the Supplier to such of the Goods as the Supplier thinks fit despite any purported appropriation by the Customer.
7 DELIVERY
7.1 Delivery of the Goods shall occur:
- 7.1.1 in respect of Goods to be collected by or on behalf of the Customer when the Goods are loaded onto a vehicle for transport to the Customer or at the Customer’s direction at any time after the Supplier has notified the Customer that the Goods are ready for collection; and
- 7.1.2 in respect of Goods to be delivered by the Supplier or at the Supplier’s direction when the Goods are offloaded at the place of delivery.
7.2 Unless otherwise stated in a Quotation:
- 7.2.1 Any dates quoted for delivery of the Goods and/or the supply of the Services are approximate only and the Supplier shall not be liable for any delay in delivery of the Goods and/or supply of the Services however caused.
- 7.2.2 Time for delivery and/or supply shall not be of the essence.
7.3 The Goods may be delivered (and/or the Services may be supplied) by the Supplier in advance of the quoted delivery and/or supply date upon giving reasonable notice to the Customer.
7.4 If the Supplier fails to deliver the Goods and/or supply the Services for any reason other than a cause beyond the Supplier’s reasonable control or the Customer’s fault, and the Customer purchases replacement goods and/or services, any liability of the Supplier to the Customer shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods and/or services to replace those not delivered or supplied over the price of the Goods and/or Services. The Customer must deliver evidence of the cost of the similar goods and/or services and specification of such similar goods and/or services to the Supplier when making a claim related to the Supplier’s failure to deliver the Goods and/or Services.
7.5 If the Customer fails to:
- 7.5.1 take delivery of the Goods on the delivery date;
- 7.5.2 collect the Goods within five (5) days of the Supplier notifying the Customer that the Goods are ready for collection; or
- 7.5.3 give the Supplier adequate delivery instructions for delivery or supply of Goods, then, except where that failure or delay is caused by the Supplier’s failure to comply with its obligations under this agreement:
- (1) delivery of the Goods shall be deemed to have been completed on the attempted delivery date or the fifth Business Day following the day on which the Supplier notified the Customer that the Goods were ready for collection; and
- (2) the Supplier shall store the Goods until actual delivery takes place and charge the Customer for all related costs and expenses (including insurance).
7.6 If the Customer fails to collect or to reorganise the delivery of the Goods after ten (10) days from the initial attempted delivery, then without prejudice to any other right or remedy available to the Supplier:
- 7.6.1 the Supplier may sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Customer for any shortfall below the price under the Contract; and
- 7.6.2 the Customer shall also reimburse the Supplier all other costs which in the Supplier’s reasonable opinion were wasted as a result of the Customer’s failure under clause 7.5 including (without limitation) the cost of wasted packaging, transportation, and the costs of preparing and making available the Goods to the Customer.
8 ACCEPTANCE AND DEFECTIVE PRODUCTS
8.1 The Customer may reject any Goods delivered to it that do not substantially comply with the specifications of the Quotation, provided that:
- 8.1.1 notice of rejection is given to the Supplier:
- (1) in the case of a defect that is apparent on normal visual inspection, within seven (7) days from the date of delivery; or
- (2) in the case of a latent defect, within seven (7) days of the time when the Customer discovers or ought to have discovered the defect or failure; and
- (3) in any event no later than the end of the earliest growing season in which Goods could have been sown following delivery; and
- 8.1.2 none of the events listed in clause 8.3 apply.8.2 If the Customer fails to give notice of rejection in accordance with clause 8.1, it shall be deemed to have accepted the relevant Goods and shall be bound to pay the price as if the Goods had been supplied in accordance with the Contract.
8.3 The Supplier shall not be liable in respect of Goods including for Goods’ failure to comply with the warranties set out in clause 15 in any of the following events:
- 8.3.1 the Customer makes any further use of those Goods after giving notice in accordance with 8.1;
- 8.3.2 the defect arises because the Customer failed to follow the Supplier’s instructions for the storage and use of the Goods or (if there are none) good industry practice regarding the same;
- 8.3.3 the defect arises as a result of the Supplier following any specification supplied by the Customer;
- 8.3.4 the Customer alters or treats those Goods against good industry practice;
- 8.3.5 any variation in description or specification arising out of any local or climatic conditions;
- 8.3.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- 8.3.7 the Goods differ from their description in the Quotation as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.4 The Customer shall permit the Supplier to investigate matters relevant to such notification before any remainder of the Goods and/or Services supplied are rejected, used or returned. Where there is a notification relating to an observation of a growing crop, the Customer shall allow the Supplier immediate access to inspect the crop and sample any unsown seeds.
9 RISK AND PROPERTY
9.1 Risk of damage to or loss of the Goods shall pass to the Customer upon delivery save in the case of Goods retained in stock by the Supplier at the Customer’s request where risk of damage to or loss of the Goods shall pass when the Goods are appropriated to the Customer.
9.2 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions, legal and equitable title in the Goods shall not pass to the Customer until the Supplier has received payment in full of all sums due to it in respect of:
- 9.2.1 the Goods; and
- 9.2.2 all other sums which are or which become due to the Supplier from the Customer on any account.
9.3 Until such time as the legal and equitable title in the Goods passes to the Customer, the Customer shall:
- 9.3.1 hold the Goods as the Supplier’s fiduciary agent and bailee and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Supplier’s property;
- 9.3.2 give the Supplier such information as the Supplier may reasonably require from time to time relating to the Goods and the ongoing financial position of the Customer; and
- 9.3.3 be entitled to resell or use the Goods in the ordinary course of its business, but at the point of sale the Customer shall hold all proceeds of sale on trust for the Supplier and shall promptly pay from those proceeds of sale all monies then owing to the Supplier. In the event the Customer converts the Goods and then sells the proceeds of that conversion, the Customer shall hold all proceeds of sale on trust for the Supplier and shall promptly pay from those proceeds of sale all monies then owing to the Supplier. While the Goods are in the possession and control of the Customer, the Customer will insure the Goods for the full purchase price from the Supplier. In the event of circumstances occurring that give rise to a claim against such insurance, the Customer shall hold the proceeds of the insurance on trust for the Supplier and shall promptly pay from those proceeds of sale all monies then owing to the Supplier.
9.4 Until such time as the legal and equitable title in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), the Supplier shall be entitled at any time to require the Customer to deliver up the Goods to the Supplier and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
9.5 The Customer 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 Supplier, but if the Customer does so all monies owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
10 FARM SAVED SEED
10.1 If the Customer purchasing Goods being seeds of a Protected Variety is a British Society of Plant Breeders Limited (BSPB) Sub-licensee, the Customer shall upon request by the Supplier or by BSPB provide BSPB with the name and address of any person to whom the Customer has sold any seeds of the Protected Variety together with details of the crop species the name and quantity of the Protected Variety the seed certification numbers and the dates of all relevant transactions.
10.2 If the Customer sells seeds of a Protected Variety purchased from the Supplier to any third party, the Customer shall ensure that such sale is subject to a term in the form of clause 10.1 above.
10.3 If the Customer purchases seeds of a Protected Variety (save vining pea varieties) which are sown on the Customer’s own holding and the Customer sows Farm Saved Seed the Customer agrees only to use such Farm Saved Seed on the same holding and shall not sell on or make-over such Farm Saved Seed.
10.4 If the Customer purchases seeds of a Protected Variety of vining peas the Customer agrees not to use such seed for multiplication or to use any Farm Saved Seed without first obtaining a sub-licence from BSPB and the Customer irrevocably undertakes that if seed purchased is to be used for the purposes of multiplication it has first obtained such a sub-licence.
10.5 If the Customer purchases seeds of a Protected Variety, the Customer shall pay to BSPB all royalties that fall due to the Supplier for each planting year.
11 TRIAL SEED
11.1 Where the Supplier supplies seeds to the Customer expressly for trial purposes such seeds are for experimental use onlyand it is a condition of supply of such seeds that they shall not be multiplied for resowing nor offered for resale.
11.2 Where a variety has not yet been added to the UK National List then the seed supplied only for trials purposes shall remain the Suppliers property and shall not be used for any other purposes including further multiplication. The seed or produce of the crop is not to be used to perform any breeding or research activities, including quality or laboratory testing without prior permission from the Supplier. Material produced directly or indirectly from trials seed shall become the Suppliers property. Trial seed is supplied on the understanding that at the conclusion of such trials as are undertaken the Customer will destroy any unused seed and material grown on the Suppliers behalf.
11.3 Due to National List regulations, varieties not yet added to the UK National List are not offered for sale but a handling charge is applied. Should any variety be withdrawn from the National List Trials the offer of seed will be withdrawn.
11.4 All trial seed is for UK use only and not for export to any country outside the United Kingdom.
11.5 The Supplier will have no liability for any claims arising in relation to trial seed, or in relation to clause 11.
11.6 The Customer agrees that the Supplier may visit trials by prior arrangement and that the Customer will share data and the results arising out of such trials as are undertaken with the Supplier at the Supplier’s reasonable request.
11.7 All seeds provided by the Supplier are of conventional varieties bred from parent plants, which have not been genetically modified as detailed in clause 15.12.
12 INSOLVENCY OF CUSTOMER
12.1 This clause applies if:
- 12.1.1 the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
- 12.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer;
- 12.1.3 the Customer ceases, or threatens to cease, to carry on business;
- 12.1.4 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly;
- 12.1.5 the Supplier reasonably apprehends that any of the Customers obligations under this agreement may not be met; or
- 12.1.6 any similar or analogous event to the events noted at clauses 12.1.1 to 12.1.4 occur in any jurisdiction.
12.2 If this clause applies, then without prejudice to any other rights or remedy available to the Supplier the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement to the contrary. Nothing in this clause 12.2 affects the operation of clauses 9.2, 9.3, 9.4 and 9.5.
13 EXPORT TERMS
13.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
13.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 13 shall (subject to any special terms agreed in Writing between the Customer and the Supplier) apply notwithstanding any other provision of these Conditions.
13.3 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
13.4 Unless otherwise agreed in Writing between the Customer and the Supplier, the Goods shall be delivered ex works as defined in Incoterms and the Supplier shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
14 INDEMNITY
14.1 If the Supplier is found liable in respect of any claim made against it for infringement of any letters patent, copyright, registered design trade mark or other intellectual property rights of any other person which may arise as a result of the Supplier carrying out instructions given by the Customer, the Customer hereby agrees to indemnify and keep indemnified the Supplier from and against all or any such claim and against all costs (including legal costs) damages losses (including losses of profit) and demands arising in respect of any such claim.
14.2 The Customer shall indemnify the Supplier in respect of any liability incurred by the Supplier as a result of any damage or injury whatsoever to any person or to any property and against all actions suits claims costs, (including legal costs) charges or expenses arising in connection with the Goods whether caused by the negligence of the Customer, its servants or agents.
14.3 In the event of any breach of the terms of any Contract for the sale of the Goods the Customer shall indemnify and keep indemnified the Supplier against all losses (including losses of profit) costs (including legal costs) claims damages or other injury or the like which the Supplier incurs as a result of the Customer’s breach.
15 WARRANTIES AND LIABILITY
15.1 All warranties and exclusions of liability in this clause 15 apply to the fullest extent as permitted by law.
15.2 The Supplier shall be under no liability under any warranty, condition or guarantee if the total price for the Goods (and/or the Services) has not been paid and the due date for payment has passed.
15.3 Subject to the conditions set out below the Supplier warrants that the Goods will in all material respects be to the standard described in clause 2.4. The Supplier warrants that the Services will be supplied with reasonable skill and care.
15.4 Subject as expressly provided in these Conditions, all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
15.5 In no case will the Supplier accept any claim arising from the use of seeds in any other than the first growing season after delivery.
15.6 To the extent permitted by law, the Supplier does not warrant the fitness of the Goods for any particular purpose even though that purpose may be known, and no such warranty is to be implied from the description under which the Goods are sold.
15.7 The Supplier makes no warranty that the Goods sold, or Services supplied are free from latent defect and accepts no responsibility whatsoever for crop germination or performance or in respect of mutants generated during reproduction.
15.8 Where there is a breach of the warranty given under clause 15.3 which is based on any defect in the quality or condition of the Goods or their failure to meet specification (or in the case of the Services, which is based on the failure of the Services to be supplied with reasonable skill and care) and it is notified to the Supplier in accordance with these Conditions, the Supplier shall be entitled to replace the Goods (or the part in question) and/or re-supply the Services (or the part in question) free of charge or at the Supplier’s sole discretion refund to the Customer the price of the Goods and/or Services (or a proportionate part of the price) but the Supplier shall have no further liability to the Customer.
15.9 Except in respect of any matters in which the Supplier’s liability may not by law be restricted or excluded (including, without limitation, for fraud and for death or personal injury caused by the Supplier’s negligence), and subject to clause 15.8, the Supplier’s total liability in respect of any contractual breach or representation, statement or tortious act or omission arising under or in connection with the Contract (and whether caused by the negligence of the Supplier, its employees or agents or otherwise) (a “Default”) shall not exceed the total sums paid by the Customer to the Supplier in respect of the quantities of Goods and/or Services to which the Default relates.
15.10 The Supplier shall have no liability to the Customer for any consequential, indirect, or special loss or damage, loss of profits, loss of business, loss of reputation and loss of goodwill (whether caused by the negligence of the Supplier, its employees or agents or otherwise) which arise out of or in connection with the Contract.
15.11 The Supplier shall not be liable to the Customer or be deemed to be in breach of contract by reason of any delay in performing or any failure to perform any of the Supplier’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Supplier’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as a non-exhaustive list of causes beyond the Supplier’s reasonable control:
- 15.11.1 act of God, explosion, flood, tempest, fire, pandemic, or accident;
- 15.11.2 war or threat of war, terrorist activity, sabotage, insurrection, civil disturbance, or requisition;
- 15.11.3 acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
- 15.11.4 import or export regulations or embargoes;
- 15.11.5 strikes, lockouts, or other industrial actions or trade disputes (whether involving employees of the Supplier or of a third party);
- 15.11.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery; either by the Supplier or third-party manufacturer or supplier; and
- 15.11.7 power failure or breakdown in machinery.
- 15.12 Where the Goods supplied are seeds of conventional varieties, they have been bred from parent plants which have not been genetically modified. However, where production of seed is carried out in natural conditions where there is free circulation of pollen it is not possible to prevent the occurrence of adventitious genetically modified organisms (GMOs). Accordingly, the Supplier gives no guarantee that the Goods are free of GMOs and accepts no liability for any damage whatsoever arising from the occurrence of adventitious traces of GMOs.
15.13 Where the Supplier supplies seeds in the UK which are treated with product outside of the UK, and that product is not registered for application in the UK, the Supplier confirms that such product was applied in accordance with instructions provided by the manufacturer, but the Supplier accepts no liability whatsoever arising out of the supply purchase and use of the seeds which have been so treated and imported. Such treated seeds are purchased entirely at the Customer’s own risk.
16 CONFIDENTIALITY
16.1 Each party to the Contract shall keep strictly confidential all information concerning the business and affairs of the other obtained from the other either pursuant to the Contract or prior to and in contemplation of it, shall use the same exclusively for the purposes of the Contract, and shall disclose the same only to:
- 16.1.1 those of its directors and employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of the Contract; or
- 16.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.2 The obligations of clause 16.1 above shall survive the expiry or termination of the Contract but shall not apply to any information which:
- 16.2.1 the recipient can demonstrate was already in its possession and at its free disposal prior to receipt under the circumstances mentioned at clause 16.1 above;
- 16.2.2 is subsequently disclosed to the recipient without any obligation of confidence by a third party who has not derived it directly or indirectly from the disclosing party; or
- 16.2.3 enters the public domain through no act or default of the recipient, its agents or employees.
17 DATA PRIVACY
17.1 For the purposes of this clause 17, the terms Commissioner, controller, data subject, personal data, personal data breach, processor, and processing, shall have the meaning given to them in the UK GDPR, and supervisory authority shall have the meaning given to it in the EU GDPR.
17.2 Each party acts as a separate controller for the personal data processed in connection with this agreement.
17.3 Each party shall process personal data received from the other party only to the extent required for the execution of itsobligations, as otherwise contemplated by this agreement, or where required to comply with applicable law.
17.4 Each party shall be responsible for its own compliance with Applicable Data Protection Laws for its processing of personal data in connection with this agreement. Without limiting the forgoing, each party warrants that it shall comply with Applicable Data Protection Laws in respect of the processing of personal data.
17.5 Each party shall cooperate with the other party to fulfil their respective data protection compliance obligations under Applicable Data Protection Laws.
17.6 The parties shall not knowingly perform their obligations under this clause 17 in such a way as to cause the other party to breach any of its obligations under Applicable Data Protection Laws.
17.7 To the extent permitted by Applicable Data Protection Laws, neither party shall name the other party in any communication to the public or a third party, including the Commissioner or a supervisory authority, concerning a personal data breach without that other party’s prior Written approval. Each party shall coordinate with the other party in good faith on the content and timing of the other party’s intended communication regarding a personal data breach.
17.8 Each party shall not transfer the Personal Data received from the other party outside the UK, the European Economic Area, or a country in respect of which a valid adequacy decision has been issued by the European Commission or, in respect of the UK Personal Data, a country in respect of which an adequacy regulation has been issued by the UK, without obtaining the prior Written consent of the other party.
18 TERMINATION
18.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving Written notice to the Customer if:
- 18.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of that party being notified in Writing to do so;
- 18.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- 18.1.3 the Customer suspends, threatens to suspend, ceases, or threatens to cease to carry on all or a substantial part of its business; or
- 18.1.4 the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
18.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer breaches any of its obligations under clause 18.1.
18.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving Written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
18.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
18.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
18.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
19 ARBITRATION
19.1 All disputes of a technical nature (such as disputes concerning defective seeds), shall be referred to arbitration as follows:
- 19.1.1 if the Customer is a member of the National Farmers Union in England and Wales or a member of the National Farmers Union of Scotland (together referred to as “the NFU”) the dispute shall be referred to arbitration under the rules for the conduct of arbitration jointly agreed between the NFU and BSPB;
- 19.1.2 if the Customer is based in the UK and does not meet the requirements of clause 19.1.1, the dispute shall be referred to arbitration in accordance with the arbitration rules of BSPB; and
- 19.1.3 in every other case, the dispute shall be dealt with in accordance with the Arbitration Procedure Rules for the International Seed Trade of the International Seed Trade Federation (ISF), in its last published version.
20 NOTICES
20.1 Any notice or notification served under the Contract shall be:20.1.1 in Writing in the English language; 20.1.2 signed by or on behalf of the Party giving it; 20.1.3 sent for the attention of the person, and to the address, given in this clause 19.1; and 20.1.4 delivered:
- (1) personally;
- (2) by commercial courier;
- (3) by pre-paid first-class post or recorded delivery; or
- (4) (if the notice is to be served by post outside the country from which it is sent) by airmail requiring signature on delivery.
20.2 The addresses for service of notices to the Supplier is: Limagrain UK LimitedAddress: Joseph Nickerson Research Centre, Rothwell, Market Rasen, Lincolnshire, LN7 6DT For the attention of: Customer Service Team Email address: enquiries@limagrain.co.uk
20.3 For the Customer, notices will be served to the registered business address of the Customer, the delivery address or any other physical address or email address provided by the Customer from time to time.
20.4 A notice or any other communication given in connection with the Contract is deemed to have been received:
- 20.4.1 if delivered personally, at the time of delivery;
- 20.4.2 if sent by commercial courier, at the time of signature of the courier’s delivery receipt;
- 20.4.3 in the case of pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or
- 20.4.4 in the case of airmail, at 9.00 am on the fifth Business Day after posting.
20.5 For the purposes of this clause 20:
- 20.5.1 all times are to be read as local time in the place of deemed receipt;
- 20.5.2 if deemed receipt under this clause is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on any Business Day), the notice shall be deemed to have been received at the opening of business on the next Business Day in the place of receipt; and
- 20.5.3 to prove delivery, it is sufficient to prove that the notice was posted, and that the envelope containing the notice was properly addressed.
21 GENERAL
21.1 Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution and delivery of all documents and doing of all such things as are required to give full effect to these Conditions and the transactions contemplated by it.
21.2 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
21.3 Subject to clause 3.2 and 5.1, the Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether Written or oral, relating to its subject matter. The Customer agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out or referred to in this Contract. The Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
21.4 No variation to these Conditions shall be binding unless agreed in Writing by the authorised representatives of the Customer and the Supplier.
21.5 The Supplier may perform any of its obligations or exercise any of its rights hereunder by itself or through any group company, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Supplier.
21.6 No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
21.7 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
21.8 These Conditions shall be governed by the laws of England and the parties hereby agree to submit any dispute, that is not of a technical nature that is referred to arbitration pursuant to clause 19, to the exclusive jurisdiction of the English courts.
February 2022