Terms for the Supply of Products

QEMETICA AGRICULTURAL SOLUTIONS (UK) LIMITED

General Terms for the Supply of Products

  1. DEFINTIONS AND INTERPRETATION
    • In these Terms, unless the context does not so permit the following words and expressions have the following respective meanings:

Qemetica:

Qemetica Agricultural Solutions (UK) Limited, a company incorporated under the laws of England and Wales with Company Number 16736508, whose registered office is at c/o Hillier Hopkins LLP, Ground Floor, 45 Pall Mall, London SW1Y 5JG;

 

Customer:

the person or organisation to whom or which Qemetica has agreed to supply the Products;

 

Business Day:

Monday to Friday inclusive, with the exception of bank and other public holidays in England and Wales;

 

Contract:           

an individual contract made between the Customer and Qemetica for the supply by Qemetica of the Products, made pursuant to an Order;

 

Contract Date:

the date on which the Order is accepted by Qemetica, as determined in accordance with Clause 2.2.4;

 

Contract Price:

the sale price of the Products, as specified in the current price list from time to time either published by Qemetica or supplied by Qemetica to the Customer (as the case may be);

 

Data Protection Legislation:

all applicable data protection and privacy legislation in force from time to time in the United Kingdom or any part of it;

 

Delivery Address:              

the full postal address of the place in the United Kingdom (which expression excludes the Channel Islands and the Isle of Man) to which the Products specified in any Order are to be delivered;

 

Intellectual Property Rights:

all present and future patents, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, rights in designs, rights to sue for passing-off and all other intellectual property rights or rights of a similar nature, in each case whether registered or unregistered, and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

 

Products:

the products specified in the Order, or any of them as the context permits;

 

Order:

a written order for the Products issued by the Customer to Qemetica which contains all the information set out in Clause 2.2.1;  

 

Seasons:

means  (i) 1st January to 30th June (Spring) and (ii) 1st July to 31st December (Autumn)  in each calendar year; and

 

Terms:

these General Terms for the Supply of Products.

 
  • The headings in these Terms are inserted for convenience only and shall not affect its construction.
  • A reference in these Terms to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
  • Unless the context otherwise requires, words in these Terms denoting the singular shall include the plural and vice versa and words and expressions denoting any gender shall include a reference to all genders.
  • Any words in these Terms following the expressions including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  • A reference in these Terms to writing includes electronic mail but not facsimile and the expression written shall be construed accordingly.
  • References to Clauses are references respectively to the Clauses of these Terms.
  1. THE CONTRACT
    • Qemetica shall sell and the Customer shall purchase the Products, subject to and in accordance with the Contract.
    • The procedure for creating the Contract is as follows:-
      • The Customer will place an order for the Products with Qemetica (Order), in such form and submitted by such means as Qemetica may specify from time to time and containing the following information;
        • The Products being ordered, including any line code or other identifier required by Qemetica;
        • The respective quantities of each of the Products being ordered;
        • The respective Contract Prices;
        • The Delivery Address;
        • Such details and instructions (if any) relating to the delivery of the Products as are necessary in order to enable Qemetica’s carrier to effect delivery in accordance with the Contract; and
        • Such other information as Qemetica may specify from time to time.
      • Qemetica shall be under no obligation to accept any Order;
      • If Qemetica rejects any Order it shall use reasonable endeavours to notify the Customer in writing of such rejection;
      • The Contract is formed upon the acceptance by Qemetica of the Order, which shall be signified by the despatch by Qemetica of the Products. In no other circumstances will the Contract or any other binding contract be deemed to have been entered into. The date on which Qemetica despatches the Products is the Contract Date; and
      • Once the Contract has been formed the Customer may not amend the Order except with the express prior written agreement of Qemetica and then only on such terms as Qemetica shall specify in writing at its discretion.
    • Each Order shall form the subject of a separate Contract;
    • The Contract is comprised of the following documents:-
      • These Terms, to the exclusion of any other terms and conditions incorporated or referred to in the Order or which the Purchaser purports to incorporate into the Contract by any means;
      • The Order; and
      • Any other document which Qemetica and the Customer agree shall form part of the Contract, including if applicable any additional terms specified by Qemetica pursuant to Clause 2.2.3.

(together, Contract Documents) and in the event of any conflict or discrepancy between any of the Contract Documents they shall prevail over each other in the reverse of the order in which they are listed above, to such extent only as is necessary to resolve the conflict or discrepancy in question.

  • Any samples, descriptive matter or advertising produced by Qemetica and any descriptions or illustrations contained in any catalogues, or other documentation or material provided or published by Qemetica are provided for the sole purpose of giving the Customer an approximate impression of the Products depicted by them or to which they relate. They shall not form part of the Contract nor be legally binding upon Qemetica.
  • Notwithstanding the formation of the Contract pursuant to Clause 2.2, Qemetica reserves the right to vary the Contract to such extent (if any) as may be necessary in order to take account of any factors relevant to the Contract of which Qemetica was unaware, and could not reasonably have been expected to be aware, at the time when the Contract was formed, including any inaccuracy in, or incompleteness of, any information provided by the Customer, whether in the Order or otherwise.
  • Qemetica may terminate the Contract with immediate effect by giving notice to the Customer without giving reasons at any time prior to the commencement of the delivery of the Products. Qemetica shall have no liability to the Customer of any kind in connection with the termination of the Contract pursuant to this Clause 2.7.
  1. GENERAL DUTIES AND OBLIGATIONS OF QEMETICA
    • In performing its obligations under the Contract, Qemetica shall at all times:-
      • supply Products which are of satisfactory quality and fit for their purpose, conform to their description and are free from material defects in materials and workmanship;
      • use reasonable endeavours to deliver the Products on the Business Day following the Contract Date or, if the Contract is formed after 12.00 on the relevant day, two Business Days after the Contract Date, but timescale is an estimate only and the time for delivery by Qemetica shall not be of the essence of the Contract. In particular, deliveries of Products to Scotland and Norther Ireland may be completed a minimum of one day longer than is indicated by the above estimates;
      • comply in full and at all times with all applicable and relevant laws, statutes, regulations, orders, codes and all other matters having the force of law from time to time;
      • provide to the Customer, within a reasonable time, such information and documentation as the Customer may reasonably request in connection with matters relating to the supply of the Products or the Contract; and
      • If unable at any time to perform its obligations under the Contract for any reason, notify the Customer of that fact as soon as reasonably practicable.
  1. OBLIGATIONS OF THE CUSTOMER
    • The Customer shall:

4.1.1      co-operate fully with Qemetica, in a timely fashion, in all matters relating to the Products and the Contract;

4.1.2      provide to Qemetica, its employees and other representatives, in a timely fashion and free of charge, such documents, information, items and materials in any form (whether owned by the Customer or any third party) as Qemetica might reasonably request from time to time in order to enable it to perform its obligations under the Contract, including such as may be specified in the Contract Documents, and ensure that they are accurate and complete in all material respects; and

4.1.3      without limiting Clause 4.1.2, use all reasonable endeavours to provide to Qemetica:-

(a)          not less than ten (10) Business Days before the commencement of each consecutive Season, in such form and containing such information as Qemetica may prescribe from time to time, a non-binding forecast of its anticipated requirements for delivery of the Products during each whole or part calendar month forming part of that Season.;

(b)          as soon as reasonably practicable upon first becoming aware of the same, details of any anticipated material change to any element of the current such forecast.

  • If the performance by Qemetica of its obligations under the Contract is prevented or delayed by any act or omission on the part of the Customer or any third party then, without limiting any other right or remedy that it might have, Qemetica shall be allowed an extension of time to perform its obligations at least equal in length to the period for which Qemetica’s performance was prevented or delayed.
  1. DELIVERY OF PRODUCTS
    • Qemetica will deliver the Products, or have them delivered, to the Delivery Address.
    • The Customer will be responsible for ensuring that the Products are unloaded from the delivery vehicle and shall provide such equipment and personnel as are necessary in order to unload the Products safely and efficiently. Delivery shall be deemed to have been completed upon the completion of unloading.
    • Without limiting Clause 3.1.2, any dates for delivery quoted by Qemetica are only estimates. and the Customer shall have no right to terminate the Contract if the Products are not delivered on the date quoted by Qemetica. In addition, Qemetica shall not be liable for any delay in delivery of the Products that is caused by an event, matter or circumstance beyond the reasonable control of Qemetica or by any act or omission on the part of the Customer, including any failure to provide Qemetica with adequate delivery instructions or any other information or instructions that are relevant to the supply of the Products.
    • If the Customer fails to accept delivery of the Products within five Business Days of Qemetica first attempting to deliver them then, except where such failure is caused by an event, matter or circumstance beyond the reasonable control of the Customer or any failure by Qemetica to comply with its obligations under the Contract in respect of the Products:-
      • Qemetica shall store the Products until actual delivery takes place, and charge the Customer for all related costs and expenses of storage, including insurance; and
      • The obligation of the Customer to pay the Contract Price shall not be affected by any failure by the Customer to accept delivery of the Products.
  1. PRICE and payment
    • In consideration of the supply by Qemetica of the Products, the Customer shall pay the Contract Price to Qemetica.

6.2         The Contract Price is exclusive of Value Added Tax and any other applicable sales taxes or duties, which the Customer shall pay in addition upon the submission to it by Qemetica of a complete, accurate and valid tax invoice.

6.3         The following provisions shall apply in relation to payment of all sums due to Qemetica:-

6.3.1      Qemetica shall, on or as soon as reasonably practicable after Qemetica’s carrier has confirmed delivery of the Products, submit to the Customer one invoice in respect of the Contract Price of the Products delivered;

6.3.2      The Customer shall make each payment of the Contract Price due to Qemetica together with any Value Added Tax or other sales tax or duty payable thereon, in full and without any deduction or set-off, by electronic transfer to such bank account in the United Kingdom as Qemetica shall reasonably specify from time to time, within such period as may have been agreed in writing between Qemetica and the Customer or, where there is no such agreement, sixty (60) days following the end of the month of the date of the relevant invoice or such shorter period as may be agreed between Qemetica and the Customer, the final day of which period shall in each case be the due date for the purposes of Clause 6.3.3;

6.3.3      If The Customer fails to make any payment due to Qemetica under the Contract on or before the due date then, without limiting any other right or remedy of Qemetica and except in the case of any bona fide dispute :-

(a)          Qemetica shall, pending receipt of the overdue payment, be entitled to suspend the future supply of all Products, whether under the Contract or any other contract or arrangement between Qemetica and the Customer; and

(b)          the Customer shall be liable to pay interest on the overdue amount at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1998. Interest shall in each case accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment and the Customer shall pay the interest together with the overdue amount.

  1. RISK AND TITLE IN RELATION TO products
    • The risk in the Products shall pass to the Customer on completion of delivery.
    • Title to the Products shall not pass to the Customer until [the earlier of]:
      • Qemetica receives payment in full in cleared funds for the Products and any other Products that Qemetica has supplied to the Customer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums; or
      • the Customer resells the Products, in which case title shall pass to the Customer at the time specified in Clause 7.4.
    • Until title to the Products has passed to the Customer, the Customer shall:
      • store the Products so that they remain readily identifiable as Qemetica’s property;
      • not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
      • maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
      • give Qemetica such information as it may reasonably require from time to time relating to:
        • the Products; or
        • the Customer’s ongoing financial position.
      • Subject to Clause 7.5, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before Qemetica receives payment for the Products. However, if the Customer resells the Products before that time:
        • it does so as principal and not as the agent of Qemetica; and
        • title to the Products shall pass from Qemetica to the Customer immediately before the time at which resale by the Customer occurs.
      • At any time before title to the Products passes to the Customer, Qemetica may:
        • by notice in writing to the Customer, terminate the Customer’s right under Clause 7.4 to resell the Products; and
        • require the Customer to deliver up all Products in its possession and control that have not been resold or irrevocably incorporated into another product, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored for the purpose of recovering them. The Customer shall, if requested to do so by Qemetica, procure entry to any such third party’s premises in order to enable Qemetica to exercise its rights under this Clause 7.5.2.
  1. DATA PROTECTION
    • Qemetica and the Customer will comply with all applicable requirements of the Data Protection Legislation.
    • Without limiting Clause 8.1, Qemetica will at all times store and use Personal Data in accordance with its Privacy Policy, which Qemetica may amend from time to time. The current version of Qemetica’s Privacy Policy can be found at www.qemetica-agro.co.uk.
  2. INTELLECTUAL PROPERTY RIGHTS
    • All Intellectual Property Rights in all documents, other materials and Products created, acquired, used or supplied by Qemetica for any purpose connected with the Contract (together, Materials) will, as between Qemetica and the Customer, be owned by Qemetica absolutely.
    • The Customer is permitted to use the Materials for any purpose directly connected with the provision and resale of the Products but shall not copy, reproduce or supply to any third party, nor use for any other purpose, the Materials or any of them without the express prior written consent of Qemetica.
  3. LIMITATION OF LIABILITY
    • Qemetica shall not be liable to the Customer for any loss or damage suffered or incurred by the Customer which arises other than as the result of any fault, error or defect in the Products or their supply or delivery, or of any wrongful act or omission on the part of Qemetica. If Qemetica and the Customer fail to agree as to the cause of any such loss or damage for the purpose of this Clause 10.1, the matter shall be referred for determination to an appropriately qualified independent expert engaged jointly by agreement between the parties and in default of such agreement by the President for the time being of the Law Society of England and Wales upon the application of the first of the parties to apply. Each party shall provide such co-operation as the Expert may require from time to time. The decision of the Expert shall be final and binding and the costs of the Expert in connection with the said determination shall, unless the Expert rules otherwise, be borne by the party against which the Expert’s determination is made.
    • Qemetica shall not be liable for any loss or damage suffered or incurred by the Customer which arises as the result in any ambiguity, error, incompleteness or other defect or fault in any items, information, documentation or other materials provided by the Customer, or which the Customer is required to provide, under the Contract.
    • The Customer shall fully indemnify Qemetica, and keep Qemetica fully indemnified, from and against and any all actions, demands, costs (including reasonable legal costs), expenses, loss, damage or liability suffered or incurred by Qemetica which arise as a consequence of any claim made against Qemetica by the Customer’s customer in connection with any loss or damage for which Qemetica is not liable pursuant to Clause 10.1 or 10.2.
    • To the fullest extent permitted by law, Qemetica shall not be liable under the Contract, whether in contract, negligence or otherwise, for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, diminution of goodwill or indirect or consequential loss arising in connection with the Contract, regardless of whether or not Qemetica were aware or ought to have been aware of the possibility of such loss arising.
    • Nothing in the Contract shall have the effect of limiting or excluding the liability of either party for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation or for any other liability which cannot lawfully be excluded or limited.
    • Except to the extent that its liability is not expressly excluded or limited by the preceding provisions of this Clause 10, the total liability of Qemetica arising out of or in connection with the Contract shall be limited to the amount of the Contract Price.
  4. DeFECtS in products
    • Qemetica warrants that, on delivery, and for the period of durability displayed on the packaging for the relevant Product, the Products shall:-
      • Conform in all material respects with any description or specification issued by Qemetica;
      • Be free from material defects in design, workmanship or materials;
      • Be of satisfactory quality (within the meaning set out in the Sale of Products Act 1979); and
      • Be fit for the purpose for which they would normally be used.
    • Qemetica makes no representation, warranty or statement regarding the operational or technical capabilities, functionality or performance of the Products except to the extent that these are expressly set out in the labelling of, or any other documentation supplied with, the Products.
    • The Customer shall:-
      • notify Qemetica of any actual or suspected failure of the Products to comply with the warranties set out in Clause 11.1 within seven (7) days of the date on which the Customer first became aware of the failure or, if earlier, the date on which the Customer ought reasonably first to have become so aware, as to which time shall be of the essence; and
      • give Qemetica a reasonable opportunity to inspect the Products in question.

If the Customer fails to comply with either of these obligations the provisions of Clause 11.4 shall not apply.

  • In the event of any failure of any Products to comply with the warranties set out in Clause 11.2 then, subject to Clauses 10, 11.3 and 11.5, Qemetica shall, at its option, replace the affected Products or refund that part of the Contract Price attributable for the affected Products. Any such replacement or refund shall be the Customer’s sole and exclusive remedy for any breach of the warranties set out in Clause 11.2. The provisions of Clauses 11.2 and 11.3 shall apply equally to any Products repaired or replacement Products supplied under this Clause 11.4
  • Under no circumstances shall Qemetica be liable for any defect, error or fault in the Products which arises as a result of any of the following:-
    • Wilful damage or negligence on the part of the Customer or any third party;
    • The failure by any person to comply with any instructions or recommendations for the use or storage of the affected Products issued by Qemetica from time to time;
    • The failure by any person (other than Qemetica or its carrier) to comply with any statutes, regulations, orders or other matters having the force of law from time to time relating to the use, sale, transportation or storage of the Products;
    • The compliance by Qemetica with any instruction or request issued by or on behalf of the Customer; or
    • The use or resale of the affected Products after notification to Qemetica of the defect in question, whether pursuant to Clause 11.5.1 or otherwise.
  1. TERMINATION
    • Qemetica may, without limiting any of its other rights or remedies, terminate the Contract with immediate effect by giving notice to the Customer if at any time:
      • the Customer commits any material breach of the Contract capable of remedy which, if capable of remedy, is not remedied within fourteen (14) days following receipt of notice from Qemetica identifying the breach in question and requiring it to be remedied;
      • the Customer commits an irremediable breach of the Contract;
      • any payment due from the Customer to Qemetica remains unpaid fourteen (14) days after the due date (as defined in Clause 6.3.3);
      • the Customer, if not a company, takes or has taken against it any step or action towards entering bankruptcy;
      • the Customer, if a company, (other than in relation to a solvent restructuring) takes any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, being wound up (whether voluntarily or by order of the court), being struck off the register of companies or having a receiver appointed to any of its assets;
      • the Customer suspends or ceases, or in the reasonable opinion of Qemetica is likely to suspend or cease, carrying on the whole or any significant part of its business; or
      • the Customer’s financial position deteriorates so far as to reasonably justify Qemetica’ opinion that his ability to perform his obligations under the Contract is in jeopardy.
    • 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, including Clauses 6, 7, 8, 9, 10, 11 and 12, shall survive the termination of the Contract.
    • Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the effective date of termination.
  2. ASSIGNMENT AND SUB-CONTRACTING
    • Qemetica may at any time assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The sub-contracting by Qemetica of any of its obligations will not limit or exclude the liability of Qemetica under the Contract.
    • The Customer may not assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with any or all of his rights or obligations under the Contract without the express prior written consent of Qemetica.
  3. GENERAL
    • Neither party shall be in breach of the Contract nor liable for any delay in performing, or failure to perform, any of its obligations under the Contract if that delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for a period of 30 days without interruption, either party may terminate the Contract with immediate effect by giving notice of termination to the affected party.
    • 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. Each party agrees that it has not entered into the Contract any statement, representation, assurance or warranty (whether made innocently or negligently) that is not incorporated into the Contract by way of express provision.
    • No variation of the Contract shall be effective unless it is in writing.
    • A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not constitute a waiver of that or any other right or remedy, nor prevent or restrict the further exercise of that or any other right or remedy.
    • 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 that 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 14.5 shall not affect the validity and enforceability of the rest of the Contract.
    • 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 principal place of business or such other address as that party may have specified to the other party in writing in accordance with this Clause 14.6, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or transmitted by e-mail. A notice or other communication served in accordance with this Clause 14.6 shall be deemed to have been received:
      • if delivered personally, when left at the address referred to above;
      • if sent by pre-paid first class post or other next working day delivery service, on the second Business Day after posting; or
      • if sent by e-mail, on the day of transmission provided that the sender receives no delivery failure notification

Provided that where, under Clauses 14.6.1 to 14.6.3, a notice would be deemed to have been served on a day which is not a Business Day, or where the actual time of delivery or transmission is later than 16.00 hours local time at the recipient’s address, that notice shall be deemed to have been served at 09.00 hours GMT or BST (as applicable) on the next following Business Day. The provisions of this Clause 14.6 shall not apply to the service of any proceedings or other documents in any legal action.

  • No person other than the Customer and Qemetica shall have any right to enforce any of the terms of the Contract.
  • 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. 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 the Contract or its subject matter or formation (including non-contractual disputes or claims).