TERMS AND CONDITIONS

1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier. Force Majeure Event: has the meaning given in clause 12.
Goods: the goods (or any part of them) set out in the Order. Order: the Customer’s order for the Goods, as provided to the supplier in whatever format by the customer.
Supplier: Volmary Limited (registered in England and Wales with company number 02466472), or any subsequent change of name of the company. 1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(d) A reference to writing or written includes faxes and emails.

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence. Each Order shall constitute a separate Contract.

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

2.4 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

3.1 The Goods are described in the Supplier’s catalogue and/ or Order. In the event that the Goods specified in the Order are not available on the date of dispatch, the Supplier may substitute alternative varieties.

3.2 Varieties of Goods listed with the suffix “(p)” are protected by the plant breeders’ rights (Protected Plants) set out within the Plant Varieties and Seeds Act 1964 and the Plant Varieties Act 1997 (the Plant Acts) and are subject to a royalty. Placing an Order for these Protected Plants constitutes an acceptance by the Customer of the conditions of the plant breeders’ rights scheme and the Plant Acts, which includes the requirement of a direct licence with the plant breeder in order to propagate, import or export or sell. Additionally, the relevant plant breeder has the right to inspect your premises and/or your accounts to verify that no unauthorised activities have taken place.

3.3 The Customer shall indemnify the Supplier against all claims, proceedings and losses suffered by the Supplier in relation to any breach by the Customer of clause 3.2.

4.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree
(Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready or the Customer shall collect the Goods from the Supplier’s premises (Delivery Location) within 3 Business Days of the Supplier notifying the Customer that the Goods are ready to be collected.

4.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.3 If the Supplier fails to deliver the Goods, its sole liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of the same variety, tray format and specification in the cheapest market available, less the price of the Goods.

4.4 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract, the Supplier may resell or otherwise dispose of part or all of the Goods.

4.5 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4.6 The Customer shall verify and inspect the Goods as soon as reasonably practicable upon receipt and in any event within three (3) days. Depending on the size of the delivery, verification/ inspections may take place through random sampling of a sufficient quantity of Goods.

4.7 The Customer’s obligation to inspect the Goods and report any defects also includes to phytosanitary properties, including viruses, infestations and diseases. If the Customer suspects the presence of such phytosanitary properties, it shall comply with clause 5.4.

5.1 The Supplier warrants that on delivery, the Goods shall:
(a) conform in all material respects with their description;
(b) be free from material defects, including disease and/or infection; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

5.2 Subject to clause 5.3, if:

(a) the Customer gives notice in writing to the Supplier within a three days of discovery, or the period set out in cause 5.4 below in respect of diseased and/or infection, that some or all of the Goods do not comply with the warranty set out in clause 5.1; and
(b) the Supplier is given a reasonable opportunity of examining such Goods, the Supplier shall, at its option, replace the defective Goods, or refund the price of the defective Goods in full.

5.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; or
(c) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage conditions or inappropriate growing techniques used by the Customer.

5.4 In the event that the Customer discovers or suspects, or should have reasonably discovered or suspected that the Goods are diseased and/ or infected, the Customer shall immediately notify the Supplier in writing, and in any event such notification must be within one (1) month of delivery of the Goods, and shall take steps to prevent the spread of the disease and/or infection, such as separating diseased and/or infected Goods to avoid crosscontamination prior to inspection of the Goods by the Supplier.

5.5 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

5.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause

6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s
property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.

6.4 The parties agree that, notwithstanding the nature of the Goods that mean that the Goods may be planted, grown, or the Customer may add value to it, title shall belong to the Supplier in accordance with the provisions of this clause 6, unless the Goods have changed materially in nature.

6.5 Subject to clause 6.6, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

6.6 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy the Supplier may have:
(a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7.1 The price of the Goods shall be the price set out in the Order, subject to any errors or omissions, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.

7.2 The Supplier adds a 10% credit charge to all orders, unless agreed in writing. This may be deducted if payment is made within the terms set out in clause 7.6.

7.3 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control including but not limited to foreign exchange fluctuations of 5% or more, increases in taxes and duties, any increase in any royalty payable under the Varieties and Seeds Act 1964 or any statutory modification or reenactment thereof for the time being in force;
(b) any request by the Customer to change the delivery date(s),quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions;
(d) any factors beyond the Supplier’s control as a result of any legislation rising from Brexit which increases the Supplier’s cost.

7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

7.5 The Supplier may invoice the Customer for the Goods in accordance with the Order.

7.6 Unless otherwise agreed in writing, the Customer shall pay the invoice in full and in cleared funds within 28 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Supplier reserves the right to require the Customer to pay interest on the overdue amount at the rate of 2% per month above Santander Bank UK PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law or as agreed in writing). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

7.9 The Supplier may suspend delivery of the Goods in the event that the Customer fails to make any payment due to the Supplier under this or any other contract between the Supplier and the Customer.

8.1 If the Customer becomes subject to any of the events listed in clause 8.2, the Supplier may suspend or terminate the Contract with immediate effect by giving written notice to the Customer.

8.2 For the purposes of clause 8.1, the relevant events are:
(i) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, (ii) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors, (iii)a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, (iv) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; (v) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets, (vi) (being an individual) the Customer is the subject of a bankruptcy petition or order,
(vii) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above, (viii) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business, (ix) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy, or (x) being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

8.3 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.

8.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.

8.5 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

9.2 Subject to clause 9.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed:
(i) within the first calendar month the price of the Goods, plus reasonable growing on costs (to be agreed by the parties or in the event of a dispute, by an expert); and
(ii) in any event two hundred percent (200%) of the price of the Goods (exclusive of VAT).

10.1 The use of our intellectual property rights, including commercial property rights (plant variety protection and trademark protection), copyrights and image rights, is only permitted on the basis of a separate licensing agreement.

10.2 The Customer warrants that it shall not produce reproductive material or export fertile materials in relation to any Protected Plants to a country that does not provide plant variety protection, unless licenced to do so under a separate agreement.

10.3 If mutations occur, the Customer shall immediately notify the Supplier, grant us access for examination and review and voluntarily provide us with samples and cuttings of the mutations.

10.4 If the Customer purportedly receives rights from discovery of a mutation that the Customer wishes to sell or protect, the Customer agrees to notify us in advance. We reserve the right to claim our own rights to any mutations.

10.5 If the Customer sells any acquired rights to mutations, the Customer shall grant us irrevocable pre-emptive rights; in the case of the planned protection of such rights, the Customer agrees, effective immediately to offer us assignment of its rights and, in the event of their non-transferability, to exclusive licensing at a reasonable price.

10.6 If the parties fail to agree on an appropriate price in accordance with clause 10.5, an expert appointed by the Community Plant Varieties Office shall have the final say.

10.7 The buyer grants us or third parties nominated by us the irrevocable right to visit its premises upon prior notice and by appointment in order to verify compliance with the provisions of this clause.

10.8 The Customer may not use trademarks or symbols used by us to differentiate its products from those of other legal entities or companies, or use trademarks or symbols that do not differ substantially form or own without our express written permission. The sale of plants in production in our original packaging marked with our trademarks and symbols is exempt. Goods delivered with labels originating from us are also exempt. In this case, trademarks appearing on labels may be used only through use of the labels delivered along with the delivered material to ensure preservation of our corporate designs.

11.1 Storage tips, planting instructions, information on resistance, plant protection advice and any other advice provided by the Supplier are provided at the Customer’s risk and the Supplier does not provide any warranty in respect of the provision of such advice. The provision of such advice does not relieve the buyer from its obligation to properly and professionally store and process the Goods and take the necessary care, especially when using pesticides and fertilisers as well as growth promoters and inhibitors. The possibility that pathogens may break the indicated resistance cannot be ruled out.

11.2 If the Supplier provides plant protection advice and information regarding resistance, the Customer agrees to first test the recommended measures on a portion of the goods before proceeding with the recommended plant protection methods, which it does at its own risk. Only if the test is successful should the methods be employed on a general basis. Tested plants must be kept under exactly the same conditions as the other plants that will be subject to the plant protection methods upon successful completion of the test.

11.3 The Customer is responsible for complying with all laws, including the Plant Acts.

11.4 The Customer shall be responsible for cultivation, especially in the selection and use of growth promoters and inhibitors, fertilisers and pesticides. The Customer shall ensure the compatibility of the methods employed. Please note that damage may occur if non-compatible growth promoters and inhibitors and pesticides are used. We are not liable for any damage resulting from cultivation errors.

11.5 Descriptions, illustrations, growing recommendations and other information, in whatever form, that have been provided by the Supplier (or its agents), including shelf life information, sowing, planting and harvesting dates or details and information about breeding and cultivation conditions, are based as closely as possible on practical and experimental procedures. We do not accept responsibility for any loss or damage that results from the implementation of use of such descriptions, growing recommendations or other information. The Customer shall bear the full risk and responsibility, whether the products and growing recommendations are suitable for the intended cultivation under local conditions. Product pictures in catalogues, on the internet or in other publications show the varietal type of each variety and not the variety as such. These pictures provide neither an expressed or implied warranty regarding the harvest results.

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event 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, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics including coronavirus outbreaks or similar events, natural disasters or extreme adverse weather conditions, disease, infestation or crop failure, or default of suppliers or subcontractors.

(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

13.2 Notices.


(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

13.3 Severance.


(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

13.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.

13.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.

13.7 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.

13.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).