1. These conditions and statements
1.1 The conditions set out here are the only terms and conditions on which we sell goods or supply services and, unless you and we both otherwise expressly agree in writing, they will apply absolutely. These terms and conditions override and supersede any other terms and conditions that may have been sent to you previously; and override any purchasing terms set out in any customer’s purchasing note.
1.2 In these conditions:-
1.2.1 “Goods” means all goods and/or services to be supplied by us to you;
1.2.2 “we”, “us” and “the Company” means RW Walpole Ltd;
1.2.3 “you” means the company person or legal entity buying the goods;
1.2.4 “Contract” means the contract between you and us for the sale and purchase of Goods in accordance with these conditions;
1.2.5 “Confirmation of Order” means the document sent to you by us confirming our receipt of your order and specifying the Goods;
1.2.6 “Delivery” means delivery of the Goods in accordance with clause 4 of these terms and conditions.
1.3 The Contract represents the entire agreement between the parties. You acknowledge that you have not relied upon any statement promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any drawings, descriptive matter or advertising and any descriptions advice or illustrations contained in the Company’s catalogues or brochures are produced for the sole purpose of giving an idea of the goods described in them. They shall not form part of the Contract or any other contract between you and us.
1.4 Any typographical, clerical or other error or omission in any quotation or Confirmation of Order or other document issued by R W Walpole Ltd, shall be subject to correction without liability on the part of R W Walpole Ltd.
1.5 A quotation for the Goods shall not constitute an offer from us. A binding contract shall only come into existence upon our receipt of a signed Confirmation of Order from you.
2.1 All goods are offered and sold subject to the plants being unsold at the time of receipt of a signed Confirmation of Order by R W Walpole Ltd.
2.2 It is the responsibility of the buyer to check that the Confirmation of Order accurately reflects all aspects of their order including but not limited to quantities, varieties, grades, certificates (where applicable), delivery dates, cold storage and packing charges and prices agreed.
3.1 Except as otherwise stated under the terms of any quotation and specifically agreed in writing between you and us, all prices are on an ex-farm basis and are as detailed on the Confirmation of Order. Where we agree to deliver the plants otherwise than at R W Walpole Ltd’s premises, you shall be liable to pay R W Walpole Ltd’s charges for packing, insurance and transport and for any phytosanitary inspection or documentation charges that may be necessary.
3.2 The Company reserves the right to charge separately for the cost of PHPS Certification or any other relevant certification or inspections and for cold storage and packing.
3.3 Unless stated in writing to the contrary, any quotation or unsigned Confirmation of Order is valid for a maximum of 30 days from the date of issue, provided that the Company has not previously given you notice of its withdrawal.
3.4 If the Goods sold as agreed in writing are of foreign origin, the Company reserves the right to adjust the price payable by you so as to reflect any alteration in the value of the £ sterling in terms of currency in the country of origin of the Goods between the date of written confirmation of sale and the date of invoice.
4.1 We reserve the right to deliver an order by separate instalments. In such cases each instalment shall be invoiced and paid in accordance with the Contract.
4.2 Delivery of Goods shall be made by you collecting Goods from our premises within three business days after we have notified you that the Goods are ready for collection or, if we have previously agreed in writing some other place of delivery, by us delivering the Goods to that place. You will make all arrangements necessary to receive delivery of the Goods in the manner agreed whenever they are tendered for delivery.
4.3 Any Goods not collected by you within the above timescale (time being of the essence) or not accepted where Delivery takes place somewhere other than our premises may be resold or returned to our supplier at our discretion. You shall remain liable to us for the Contract price, less any sum we have been able to recover by sale or return of the Goods.
4.4 Any Delivery times quoted by us on the Confirmation of Order or other literature are estimates only, however, if we fail to deliver within a reasonable time after the quoted delivery time, provided the Goods have not been dispatched to us by the supplier you may, by informing us in writing, cancel the Contract. In those circumstances:
4.4.1 We will refund the purchase price of the Goods to you less any expenses reasonably incurred by us in relation to the Contract; and
4.4.2 Save as provided for in clause 4.1 above, you can have no further claim whatsoever against us under that Contract.
5. Warranties and Liability
This section sets out our warranties and liabilities and particularly the limits to our liabilities. NB:The reason for these limitations of liability is that whilst we, and other propagators from whom we have purchased plants, have taken all reasonable care and have managed our crops according to current accepted husbandry practices this does not guarantee trueness to type in all circumstances nor freedom from pests and diseases. The price of our goods reflects these limits to our liability. Anyone wishing to purchase plants with specific guarantees is invited to make their requirements known to the company and we will, if possible, provide a quotation that meets these requirements.
5.1.1 When shown on our paperwork as PHPS certified, R W Walpole Ltd warrant that the strawberry plants and raspberry canes have been grown and produced to FERA Plant Health standards and inspected and certified under the Plant Health Propagation Scheme (PHPS). Details of the PHPS certification scheme, including the tolerances for visible signs of pest(s) and disease(s), are published on the following website www.fera.defra.gov.uk/plants/plantHealth/phps.cfm and are available from R W Walpole Ltd on request. PHPS grades Elite and ‘A’ Certificate for both strawberries and raspberries are inspected and certified as true to type based on visual assessment of botanical characteristics, but the inspections do not guarantee the identification of possible genetic mutations. Material certified at the PHPS grade, Approved Health (AH), is inspected and certified as to health but not in respect of trueness to type.
5.1.2 When shown on our paperwork as UK Plant Passport Grade, R W Walpole Ltd warrant that the strawberry plants, raspberry canes and other Rubus plants have been grown and produced to UK Plant Passporting regulations as inspected by FERA inspectors. Details of UK Plant Passport Regulations including pest and disease tolerances are available on the following website www.fera.defra.gov.uk/plants/plantHealth/plantPassporting.cfm
5.1.3 For all other plant material, the country of origin and relevant certification or passporting status, where applicable, is shown on our paperwork. Full details of these protocols are available on request from R W Walpole Ltd. Plant material not eligible for EU Plant Passporting Regulations or Certification, e.g. Rhubarb, blueberries, redcurrants etc is shown as uncertified and is not subject to any official inspections.
5.2 The above warranty is given by R W Walpole Ltd subject to the following conditions:
5.2.1 The Company accepts no liability whatsoever for plant material not eligible for EU plant passporting regulations or certification as it is not possible for the Company to guarantee the quality of such plant material.
5.2.2 R W Walpole Ltd shall be under no liability for latent diseases which may be present but not detected by any inspectors when inspecting plants under PHPS or any other certification or passporting scheme either in the UK or the country of origin of the material, and such certificate or passport shall not be challenged in any subsequent test or inspection.
5.2.3 R W Walpole Ltd shall be under no liability in respect of any problem arising from wilful damage, negligence or failure to follow the accepted tenets of good husbandry by you or any other party including the use of inappropriate fertiliser or pesticide treatment applied to the plants, substrate, or soil in which the plants are growing.
5.2.4 R W Walpole Ltd shall be under no liability whatsoever if the total price of the Goods has not been paid by the payment due date.
5.2.5 R W Walpole Ltd does not guarantee the yield of the plants in any respect whatsoever.
5.2.6 Where a Laboratory test for any pest, disease or virus has been carried out by the Company on harvested plants prior to delivery and found to be negative, this result shall be deemed to be conclusive and cannot be challenged by any subsequent customer instructed tests.
5.2.7 Our liability to you shall be limited: i) where the loss or damage, however sustained, is in respect of all the Goods delivered or collected, to the invoice price of the Goods; ii) where the loss or damage, however sustained, is in respect of part of the Goods, to the appropriate proportion of the invoice price which that part of the Goods bears to the total invoice price of all the Goods. We shall not in any case be liable for wasted expenditure, loss of profit, increased cost or any other indirect, consequential or economic loss, injury or damage without limitation.
5.2.8 Under no circumstances will R W Walpole Ltd consider valid any complaint relating to quality, pests, diseases or other alleged disorders of plants supplied unless made in writing and submitted to us not later than 35 days from the circumstances giving you cause to complain arising and supported by a written professional opinion and evidence. In the event of a written complaint, R W Walpole Ltd has the right of access to your premises to inspect the plants and to take samples and to inspect and take copies of your inspection records if relevant.
5.2.9 Where a valid claim exists in respect of any Goods, based on any defect in the quality, condition or specification, R W Walpole Ltd shall be entitled, at our own discretion, to refund to the customer the price of the Goods or to replace the Goods. R W Walpole Ltd will have no further liability to the customer.
5.2.10 R W Walpole Ltd does not hold Product Liability Insurance. All customers should hold their own insurance for consequential loss.
5.2.11 The warranties given in these terms and conditions apply to the Customer and cannot be assigned without our written agreement.
5.3 Where the Goods are sold within the scope of the Consumer Transactions (Restrictions and Statements) Order 1976 the statutory rights of the Customer are not affected by these conditions.
5.3.1 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
5.3.2 Nothing in these conditions excludes or limits our liability: a) For death or personal injury caused by our negligence; or b) Under section 2(3), of the Consumer Protection Act 1987; or c) For any matter which it would be illegal for us to exclude or attempt to exclude its liability; or d) For fraud or fraudulent misrepresentation.
5.3.3 a) Our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and b) We shall not be liable to the Customer for loss of profit, third party claims, loss of business, increased costs or depletion of goodwill in each case whether direct, indirect or consequential compensation howsoever caused which arises out of, or in connection with, the Contract.
6. Patent Defects
6.1 The buyer must inspect and satisfy himself as to the quality and fitness for his purpose of the Goods as soon as practicable following Delivery. Any complaint whatsoever concerning the Goods, must be notified to us at Ivy Farm, Terrington St. Clement, King’s Lynn, Norfolk PE34 4PX within 72 hours after Delivery, and subsequently be confirmed in writing within the next 48 hours by either post, fax or email (upon confirmation of the ‘message read’ acknowledgement), failing which we shall not be liable for any defect in, loss or damage to the Goods whenever and however arising. If you do not do so, you will have been deemed to have accepted the Goods. Time is of the essence for the purposes of this condition.
6.2 In the event of any valid complaint being notified to us within 72 hours after delivery or collection, and agreed by us in writing, you may reject such proportion of the Goods as is defective and we shall refund or credit to you in respect of the purchase price of such rejected Goods or replace the Goods at our discretion. We shall have no further liability to the customer in respect of those goods. Time is of the essence for the purposes of this condition.
6.3 Any Goods claimed to be defective shall be held by the customer in good, reasonable and proper conditions for a period of seven days or until collected by R W Walpole Ltd, whichever is the sooner.
7.1 The Company may at its discretion replace the defective Goods or refund the Contract price for the defective Goods (or such proportion of the Goods supplied as are defective) and in any event the liability of the Company shall be limited to the Contract price for the defective Goods.
8.1 Under no circumstances may you reject Goods for short delivery, and your remedy against the Company shall be limited to a rateable reduction in the Contract price or supply of the short quantity at the Company’s election.
8.2 You shall not be entitled to reject the Goods where an excess has been delivered.
9.1 Risk of damage to or loss of the Goods shall pass from us to you: a) In the case of Goods to be delivered at our premises, at the time of collection by you or your agent b) In the case of Goods to be delivered otherwise than at our premises the time when we have tendered delivery of the Goods (whether or not the Goods or any part of them are accepted).
10.1 Notwithstanding the provisions of the Contract relating to Delivery, property in the Goods shall pass when you have paid in full the Contract price for these Goods.
10.2 In so far as the property in the Goods has not passed to you and you are in default of your payment obligations as set out in these Conditions, we may recover them and may enter your premises, or the premises of any third party where the Goods are situate, for that purpose, without prejudice to our other remedies.
10.3 As soon as reasonably practicable following Delivery you must label, map or otherwise record the location of all Goods supplied by us so that they are clearly identifiable as our property.
11.1 A binding Contract, as defined in 1.5, above, may not be cancelled by you unless agreed by R W Walpole Ltd in writing.
11.2 If all or any part of the Contract is cancelled, for any reason, then at our discretion we will be entitled to recover from you the price under the Contract of any and all Goods (finished or unfinished) that we may then hold or to which we are committed under the Contract.
11.3 We may suspend or cancel the Contract, by written notice if:
11.3.1 you fail to pay us any money when due, whether or not in relation to the Contract or any other contract you may have with us; or or you become insolvent; or
11.3.2 if you fail to honour your obligations under the Contract; o
11.3.3 you do not collect or accept delivery of the Goods or any part of the Goods within a reasonable time following notification that the Goods or part of the Goods are ready for collection or delivery.
12. Payment Terms
12.1 Payment is due at the date indicated on the invoice or as otherwise agreed by us in writing beforehand.
12.2 Where a 5% charge is added to an invoice this can be deducted for an invoice which is paid by the due date as set out on the invoice or otherwise agreed in writing by us. We reserve the right to charge interest at 5% above base on any invoice which is more than one month overdue.
12.3 The Company reserves the right to take payment in full prior to Delivery or collection of Goods with any first time customers or with any other customer at its discretion.
13. Non Payment
13.1 We reserve the right to withhold all deliveries until all outstanding payments due to R W Walpole Ltd have been received.
13.2 If you fail to pay us on the due date we may:
13.2.1 claim fixed sum compensation from you under s.5A of the Late Payment of Commercial Debts (Interest) Act 1998.
13.2.2 Recover (under clause 13.4) the cost of taking legal action to make you pay.
13.2.3 Without prejudice to our retention of title to the Goods, take legal proceedings to recover the price of the Goods supplied but not paid for by the due date.
13.3 You do not have the right to set off any money you may claim from us against anything you may owe us.
13.4 You are to indemnify us in full and hold us harmless from all expenses and liabilities we may incur (directly or indirectly, including financial costs, including legal costs on a full indemnity basis and the cost of instructing a debt recovery agency to recover a debt due to us if any) following any breach by you of any of your obligations under these terms.
14. Return of Goods
14.1 We will accept the return of Goods from you only:
14.1.1 with our prior agreement and written confirmation;
14.1.2 on payment of an agreed handling charge (unless the Goods were defective when delivered); and
14.1.3 where the Goods are as fit for sale on their return as they were on delivery.
15. Use of Plants and Licences/Consents
15.1 R W Walpole Ltd supplies Plants for the purpose of fruit production only. Any customer wishing to obtain parent stock for propagation should contact the Nuclear Stock Association Ltd, c/o 15 Orchard Way, Cowbit, Spalding, Lincs. PE12 6XA.
15.2 Any plants which are protected by EU or UK Plant Breeders Rights are designated in our catalogue and are supplied on the understanding that the material is for fruit production only. Propagation of protected plants for ‘own use’ or sale to third parties without a licence is illegal and can lead to legal action being taken against the infringer by the Head Licensees of the variety.
15.3 The purchase of Licensed Plants automatically confers the right of entry to the Head Licensee or his agent to the land or premises where the plants are situated.
16. Latest Delivery Dates
16.1 Due to the possible loss of vigour during cold storage in respect to strawberry plants and the detrimental effects of leaf break on the successful establishment of bare root raspberries, gooseberries and currants, latest delivery dates are quoted in our catalogue. Only in response to a customer’s specific instructions and at our discretion will these goods (strawberry plants, raspberry cane, gooseberries and currants) be delivered after our recommended latest delivery dates. Such deliveries will be on the basis that the customer fully appreciates the risks and takes full responsibility for any failure of such stock to establish, grow and yield.
17. Waiver and Variations
17.1 No failure or delay by us in enforcing any of our rights shall constitute a waiver of any of our rights. No waiver shall be effective unless in writing and signed by us.
17.2 No variation of these terms is binding unless;
17.2.1 made in writing
17.2.2 signed on behalf of each party; an
17.2.3 expressly stating an intention to vary these terms.
17.3 All orders that you place with us will be on these terms (or any that we may issue to replace them). By placing an order with us, you are expressly waiving any terms you may have to the extent that they are inconsistent with our terms.
18. Force Majeure
18.1 We shall have no liability whatsoever under, or in any way related to, the sale and purchase of the Goods or otherwise, whether in contract, tort (including negligence) or otherwise, for any failure to fulfil any obligation hereunder if and to the extent that such fulfilment is prevented by circumstances beyond our reasonable control which by its nature could not have been foreseen or was unavoidable including but not limited to failure of crops, failure of energy sources or transport network, breakdown of plant or machinery, strikes, lock-outs or other industrial dispute (whether or not involving the Company’s own workforce) acts of god, war, terrorism, riots, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, nuclear, chemical or biological contamination, sonic boom, explosions, collapsed building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers of subcontractors.
19. Law and Jurisdiction
19.1 These conditions shall be governed by and construed in accordance with the laws of England and you accept the jurisdiction of the courts of England for the purpose of trying any action arising out of the agreement.
19.2 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 these Conditions and the remainder of the provisions in question shall not be affected thereby.
20.1 Each right or remedy we have under the Contract is without prejudice to any other right or remedy we have whether under the Contract or not.
20.2 Failure or delay by us in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of our rights under the contract.
20.3 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
20.4 All brochures, catalogues and other promotional materials are to be treated as illustrative only. Their contents form no part of any contract between us and you should not rely on them in entering into any contract with us.
20.5 If any court or competent authority finds that any provision or part-provision of the Contract (or any part of any provision) is invalid, illegal or unenforceable that provision or part-provision shall to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the contract shall not be affected.
Issue No.3 August 2014