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Johnsons of Whixley Terms Conditions of Sale AJ Amends 4-5

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Johnsons of Whixley Terms Conditions of Sale AJ Amends 4-5 Terms and Conditions of Sale (May 2021) (Terms & Conditions under which Johnsons of Whixley Ltd will sell to a Buyer) 1 Interpretation 1.1 In these Conditions the following definitions apply: Business Day means a day other than a Saturday, Sunday or public holiday in England when the banks in London are open for business; Buyer means the person who agrees to purchase the Goods from the Seller; Conditions means the conditions of sale set out in this document as amended from time to time by the Seller; Contract means the agreement between the Seller and the Buyer for the sale and purchase of Goods incorporating these Conditions; Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation. Data Protection Legislation the UK means Data Protection Legislation and any other legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); Delivery Date means the date stated in the Order for delivery of the Goods or if not the date on which the Goods are delivered to or collected by the Buyer; Delivery Location means the address for delivery of the Goods as set out in the Order; Description means the description of the Goods set out in the Order; Force Majeure means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) Acts of God, flood, fire, lightning, earthquake, windstorm or other natural disaster; epidemic, pathogenic infection/contamination or pandemic; war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion or riots; nuclear, chemical or biological contamination or sonic boom; compliance with any law or governmental order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; fire, explosion (other than in each case one caused by a breach of contract by, or assistance of, the party seeking to rely on this clause or companies in the same group as such party), strike, lockout or accidental damage; and/or postal or other strikes or similar industrial action. boycott or; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract, except any party's failure to pay shall not be an event of Force Majeure in any event; Goods means the nursery stock Plants and associated sundries included in an Order; Order means an order of any type (orally or in writing) from the Buyer for Goods from the Seller; Parties means the Buyer and the Seller as defined in these conditions; Seller means Johnsons of Whixley Limited (company number 00616324) of The Nurseries, Whixley, York, North Yorkshire, YO26 8AQ; (Company Registration 616324; EORI GB 168 967 593 000; VAT GB 168 967 593); Specification means that as described in the order; UK Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods;. Writing includes facsimile or email transmission and 'Written' shall be construed accordingly. 1.2 Unless the context otherwise requires: 1.2.1 references to the Contract include these Conditions and the Order; 1.2.2 references to persons include individuals, unincorporated bodies, government entities, companies and organisations; 1.2.3 clause headings do not affect their interpretation; and 1.2.4 references to any legislation will be construed as a reference to that provision as amended, re- enacted or extended at the relevant time. 2 Application of these terms and conditions 2.1 These Conditions apply to and form part of the Contract. They supersede any previously issued terms of sale. 2.2 No terms or conditions endorsed on, delivered with, or contained in the Order or any other document will form part of the Contract. 2.3 No variation of a Contract will be binding unless expressly agreed in writing by the Seller. 2.4 Each Order by the Buyer to the Seller will be deemed to be an offer to purchase Goods and subject to these Conditions. 2.5 The Seller reserves the right at all times to reject any Order, in whole or in part, at its sole discretion. 2.6 Any estimate by the Seller for the supply of Goods will be an invitation to treat (and shall not be an offer) by the Seller to supply Goods on the terms of the estimate or at all; 2.7 Any estimate is valid for 30 days from the date of issue. 2.8 Any samples, drawings, descriptive matter or advertising issued by the Seller and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Seller’s catalogues or brochures are issued or published 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 Basis of Sales 3.1 The Seller will only accept orders from persons who: 3.1.1 are bona fide horticultural businesses; or 3.1.2 have an open or ongoing account with the Seller; or 3.1.3 are official purchasers on behalf of a local authority or other organisation; or 3.1.4 are purchasing Goods in person from the Seller’s Plant Centre. 3.2 The Seller shall sell and the Buyer shall purchase the Goods in accordance with a Contract formed only when the Seller informs the Buyer that the Seller accepts an Order. 3.3 The Buyer agrees, accepts, and acknowledges that the Seller is unable to give any specific or specialist advice regarding the suitability of the Plants for planting. 3.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods whether given orally or set out in the Buyer Charter or other documentation provided by the Seller, is given in good faith as a guide only and does not form part of the Contract. 3.5 The Buyer acknowledges that plants are a living organism and may suffer as a result of incorrect treatment and therefore The Seller cannot be held responsible or liable for any damage that Plants may suffer as a result of incorrect treatment. 3.6 In the event that the Buyer does require specific advice on this point then independent and specialist advice should be sought. 3.7 The Seller reserves the right (without any liability) to: 3.7.1 substitute any type or species of Plant specified in the Order for any reason including whether such Plant is available, based on availability and the Buyer's requirements, in terms of timely delivery, if the variation or substitution does not materially affect the characteristics of the Goods, and the substituted Plants are of a quality equal or superior to those originally specified; or 3.7.2 cancel the whole or any part of an Order if suitable Plants are not available at the Delivery Date. 3.8 The Goods supplied will be labelled as deemed appropriate by the Seller unless the Buyer’s requirements for labels are set out in the Order. 4 Price 4.1 The price for the Goods will be as set out in the Order or if not will be calculated in accordance with the Seller's standard prices in force on the date of the Contract. 4.2 The price for the Goods: 4.2.1 does not include delivery which may be charged in addition unless the Goods are collected by the Buyer, and 4.2.2 does not include VAT which will be charged in addition at the then applicable rate. 4.3 if charged the cost of delivery will be the amount stated on the Order; or 4.3.1 if none is stated the cost to the Seller of delivery by carrier; or 4.3.2 if delivery is by the Seller’s vehicles such cost, up to the actual cost of delivery, as the Seller considers appropriate; 4.4 If at the request of the Buyer the Seller makes a site visit in connection with any Order then, unless the visit is to inspect Plants which are not in accordance with the Order, the Seller shall be entitled to charge in full for all costs incurred in connection with the visit. 4.5 The Seller reserves the right to increase the price for any undelivered Goods: 4.5.1 by giving 3 working days’ written notice to the Buyer, such increase to take effect in respect of any relevant Goods delivered after the expiry of such notice; or 4.5.2 with immediate effect by giving written notice to the Buyer, where such increase arises as a consequence of any increase in the cost to the Seller of supplying the relevant Goods which is due to any factor beyond the control of the Seller.
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