Terms and Conditions of Sale

1    Definitions
1.1 The "Buyer" means the business or person who buys or agrees to buy Goods from the Seller. _
1.2 “Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions
1.3 The "Seller" means The Modern Garden Company Limited.
1.4 "Conditions" means the Conditions of Sale set out in this document and any special conditions agreed in writing by the Seller. _
2    Conditions_
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.4 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’.
2.5 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
2.6 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation.
2.7 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
2.8 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
2.9 Acceptance of delivery of Goods shall be deemed conclusive evidence of the Buyers acceptance of these Conditions.
3    Price
3.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), by reference to the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer.
3.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, 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 Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
3.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4    Terms of Payment
4.1 Subject to any terms (deposit at time of order) set out in the Price List/Payment Terms and agreed between the Buyer and the Seller, the Buyer shall pay the balance of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) on or before 30 days following the date of the Seller’s invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
4.2 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
4.2.1 cancel the contract or suspend any further deliveries to the Buyer;
4.2.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 3.0% per cent per month above Bank of England base rate from time to time, until payment in full is made).
5.     Insolvency of buyer
5.1 The Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, if:
5.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
5.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
5.1.3 the Buyer ceases, or threatens to cease, to carry on business; or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
6    Export terms
6.1 The Buyer 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 on them.
6.2 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be ex works and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
6.3 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
6.4 The Buyer undertakes not to offer the Goods for resale in any other country notified by the Seller to the Buyer at or before the time the Buyer’s order is placed, or to sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the Goods in any such country.
7    Warranties and Liabilities_
7.1 The Seller warrants that the Goods will at the time of delivery correspond to the description given by the Seller. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977, Section 12) all other warranties, conditions or terms relating to fitness for purpose, merchantability or condition of the Goods, whether implied by Statute, Common Law or otherwise are excluded and the Buyer is satisfied as to the suitability of the Goods for the Buyer’s purpose. _
8    Delivery
8.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
8.2 Whilst every reasonable effort shall be made to keep any delivery date, time of delivery shall not be of the essence and the Seller shall not be liable for any losses, costs, damages or expenses incurred by the Buyer or any other person or Company arising directly or indirectly out of any failure to meet any estimated delivery date. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
8.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.   
8.4. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
8.4.1. invoice for the goods at the time stated for delivery; or
8.4.2. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
8.4.3. sell the Goods at the best price readily obtainable.
9    Ownership and Risk_
9.1 The risk in Goods shall pass to the Buyer upon delivery of the Goods or upon the Goods being appropriated to the Buyer but kept at the Seller’s premises at the Buyer’s request. _
9.2 The Seller remains the owner of the Goods affected by the Contract until the Seller has been paid in full for such Goods. _
9.3 The Buyer shall inspect the Goods immediately upon receipt and shall notify the Seller within a reasonable time of delivery if the Goods are damaged or do not comply with any of the Contract. If the Buyer fails to do this he is deemed to have accepted the Goods. _
9.4 Any Goods in respect of which any claim of defect or damage is made shall be preserved by the Buyer intact together with the original packing at the Buyer’s risk and either_a) retained by the Buyer for a reasonable period to enable the Seller or its agent to inspect or Collect the Goods or_b) at the Seller’s option returned by the Buyer to the Seller who will refund the cost of postage and packing to the Buyer if the Goods are in fact defective.
10    Cancellation and Returns_
10.1 If it is agreed that the goods are to be returned: -_
a) A Goods Return number obtained from the Seller must be clearly shown on the returned parcels. _
b) The Buyer will be liable cost of remedying any damage to the Goods returned where such damage has, in the opinion of the Seller, been caused by the Goods being inadequately packaged by the Buyer or through the Buyer’s fault. _
c) The Seller reserves the right to make a handling and restocking charge of 25% on Goods, which are returned if they were ordered in error or are no longer required.
11     General
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 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.
11.4 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.

The Modern Garden Company Limited, Millars 3, Southmill Road, Bishop’s Stortford, Hertfordshire, UK, CM23 3DH
t: +44 (0) 1279 653 200    f: +44 (0) 1279 653 201 info@moderngarden.co.uk
Registered Offices: Hill Pasture Broxted, Dunmow, Essex, UK CM6 2BZ 
Registration number: 3874618. Registered in England & Wales