Terms & Conditions
V-FARM & URBAN AGRICULTURE DIVISION
- Hydrogarden shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of Hydrogarden which is accepted by the Buyer, or any order of the Buyer which is accepted by Hydrogarden.
- These Conditions 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.
In these Conditions:-
“Business Day” means any day other than a Saturday, Sunday or bank holiday in England;
“The Buyer” means the person who accepts a quotation or offer of Hydrogarden for the sale of Goods or whose order for the Goods is accepted by Hydrogarden;
“These Conditions” means the terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Hydrogarden;
- “The Contract” means the contract for the purchase and sale of the Goods under these Conditions;
“The Delivery Date” means the date on which the Goods are to be delivered as stipulated in the Buyer’s order and accepted by Hydrogarden;
“The Goods” means the goods (including any instalment of the goods or any parts for them) which Hydrogarden is to supply in accordance with the Contract;
“Plant Material” means all plants and crops, produced or cultivated out of the Goods;
“Writing” includes any communication effected by electronic, facsimile transmission or any comparable means.
Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
The headings in these Conditions are for convenience only and shall not affect their interpretation.
- In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
- Unless otherwise agreed in the Contract, Goods are supplied by Hydrogarden EXW.
4. Basis of Sale
- Hydrogarden’s employees or agents are not authorised to make any representations or claims concerning the Goods unless confirmed by Hydrogarden in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
- No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and Hydrogarden.
- Sales literature, price lists and other documents issued by Hydrogarden in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. An order placed by the Buyer may not be withdrawn cancelled or altered prior to acceptance by Hydrogarden.
- No Contract shall be binding on Hydrogarden unless:-
- Hydrogarden has issued a quotation which is expressed to be an offer to sell the Goods; or
- Hydrogarden has accepted an order placed by the Buyer, by whichever is the earlier of:-
- Hydrogarden’s written acceptance;
- delivery of the Goods; or
- Hydrogarden’s invoice.
- The Buyer shall not adapt, vary, modify, disassemble or reverse engineer the Goods in any manner without the Licensor's prior written consent.
5. Orders and Specifications
- No order submitted by the Buyer shall be deemed to be accepted by Hydrogarden unless and until confirmed in writing by an authorised representative of Hydrogarden.
- The specification for the Goods shall be those set out in Hydrogarden’s sales documentation unless varied expressly in the Buyer’s order (if accepted by Hydrogarden). The Goods will only be supplied in the minimum units (or multiples) stated in Hydrogarden’s price list or in multiples of those units. Orders received for quantities other than these will be adjusted accordingly.
- Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by Hydrogarden are intended as a guide only and the contents shall not be binding on Hydrogarden. In particular, but without limitation, information provided by Hydrogarden in relation to the quality (such as viability, germination, mechanical or genetic purity, seed health) and performance of the Goods applies only to the tests undertaken by Hydrogarden, to the specific sample used and to the specific conditions under which the tests were done. Such information is given without any liability on the part of Hydrogarden.
- Hydrogarden reserves the right to make any changes in the specification of the Goods which:
- are required to conform with any applicable safety or other statutory or regulatory requirements; or
- which do not materially affect their quality or performance.
- No order which has been accepted by Hydrogarden may be cancelled by the Buyer except with the agreement in writing of Hydrogarden and on terms that the Buyer shall indemnify Hydrogarden in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Hydrogarden as a result of cancellation. Without prejudice to the foregoing sentence, the Buyer shall pay a minimum of 35% of the price of the Goods that Hydrogarden would have charged upon delivery.
- The price of the Goods shall be the price current at the date of acceptance of the Buyer’s order or such other price as may be agreed in writing by Hydrogarden and the Buyer.
- Where Hydrogarden has quoted a price for the Goods other than in accordance with Hydrogarden’s published price list the price quoted shall be valid for 90 days only or such other time as Hydrogarden may specify.
- Hydrogarden 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 Hydrogarden which is due to any factor beyond the control of Hydrogarden (including, without limitation, any foreign exchange fluctuation, currency regulation or alteration of duties, 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 Hydrogarden adequate information or instructions).
- The price is exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to Hydrogarden.
- The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned at the Buyer’s expense undamaged to Hydrogarden.
- Subject to any special terms agreed in writing between the Buyer and Hydrogarden, Hydrogarden shall invoice the Buyer:
- where the Goods are consumables, for 100% of the price upon acceptance of the order or quotation (as the case may be);
- where the Goods are non-consumables, if goods are not on the web shop then for 25% of the price of the Goods upon acceptance of the order or quotation (as the case may be), 25% at the start of the build and the other 50% (and any additional costs) on or at any time after despatch of the Goods.
- Invoices are based on the quantity and condition of Goods and/or at weights established by Hydrogarden when the Goods leave Hydrogarden’s factory or warehouse.
- The Buyer shall pay the price of the Goods on the payment date stated in the Contract or if no express provision for the time of payment is contained in the Contract, prior to despatch upon receipt of invoice. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued upon request.
- All payments shall be made to Hydrogarden in the currency of the price stated in the Contract without any deduction credit or set off whatsoever.
- Hydrogarden is not obliged to accept orders from any customer or buyer who has not supplied Hydrogarden with satisfactory references. If at any time Hydrogarden is not satisfied as to the creditworthiness of the Buyer, it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event the Buyer shall be required to give security deposits in respect of Goods already shipped and no further Goods will be delivered to the Buyer other than against cash payment and (notwithstanding any payment terms contained in the Contract) all amounts owing by the Buyer to Hydrogarden shall be immediately payable in cash.
- Delivery of the Goods shall take place and risk in the Goods will pass in accordance with Incoterms, where applicable, otherwise delivery of the Goods shall be made:
- by delivering the Goods to the place agreed in the Contract, or
- if no place of delivery is so agreed, by the Buyer collecting the Goods at Hydrogarden’s premises at any time after Hydrogarden has notified the Buyer that the Goods are ready for collection.
- Unless otherwise agreed in writing by the Buyer and Hydrogarden, shipment and insurance of all Goods ordered will be arranged by the Buyer. Should Hydrogarden arrange the shipment and insurance on behalf of the Buyer, all charges shall be paid by the Buyer.
- Hydrogarden shall endeavour to comply with the shipping instructions given by the Buyer with its order for the Goods but Hydrogarden reserves the right to make part shipments and to ship by vessels of Hydrogarden’s choice from any port in the United Kingdom or elsewhere.
- The Delivery Date is approximate only and time for delivery shall not be of the essence. The Goods may be delivered by Hydrogarden in advance of the Delivery Date upon giving reasonable notice to the Buyer. If Hydrogarden delivers the Goods at any time after the Delivery Date, Hydrogarden shall have no liability in respect of such late delivery.
- If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the goods to be delivered on that date, Hydrogarden shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then, notwithstanding the provision of Condition 8.1, risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to Hydrogarden all costs and expenses including storage and insurance charges arising from such failure.
- Where goods are sold inclusive of any or all of the freight, handling, port or insurance charges, any increases in such charges arising after the date of the Contract and before the Goods are delivered or arising through deviation to a new port or airport however caused shall be for the Buyer’s account.
- Port surcharges and other incidental charges are not included in the freight rate and will be for the Buyer’s account.
- Import or customs duty or other official taxes or charges arising from or necessary to enable delivery of the Goods shall be for the Buyer’s account and shall be reimbursed forthwith where necessarily paid by Hydrogarden.
- Hydrogarden grants the Buyer a non-exclusive, non-transferable and limited licence to resell or use the Goods for the sole purpose of production or cultivation and sale of Plant Material.
- Where the Goods include seeds, the Buyer must not use or cause or permit the use of the Goods, any parental line seed which may be found therein or any Plant Material produced therefrom, for any research, breeding, molecular or genetic analysis, seed (re)production, propagation and/or multiplication or for any other purpose other than commercial production or cultivation of Plant Material in accordance with these Conditions.
- The Buyer is not permitted, except with the prior written consent (which may be subject to conditions) of Hydrogarden, to supply any Goods to a third party for production or cultivation nor is it permitted to distribute, sell, transfer, sub-licence, encumber, mortgage, pledge, offer as security any Goods except as expressly set out in these Conditions.
- The Buyer acknowledges that the results obtained by the Buyer with the Goods depend on such factors as the place of cultivation, the conditions prior to and during cultivation, including but not limited to storage of Goods, the climate, the soil and crop protection methods used by the Buyer. The Buyer shall be solely responsible for determining the suitability and appropriateness of the use of the Goods in the different conditions and/or for the different purposes.
- Hydrogarden provides information on the Goods to assist the Buyer and shall not be liable to Buyer for results deviating from that information. Hydrogarden shall not be held liable for any information provided in relation to resistances to diseases indicated for the Goods.
- Hydrogarden shall not be liable for any Goods that have been repacked, treated, conditioned and/or manipulated in any way by the Buyer or by Hydrogarden or a third party on the Buyer’s request.
- The Buyer acknowledges that Goods delivered by Hydrogarden are not fit for human or animal consumption.
- The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be.
- Where the Goods cannot be examined the carriers note or such other note as appropriate shall be marked “not examined”.
- Hydrogarden shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the terms of this Condition are not complied with and, in any event will be under no liability if a written complaint is not delivered to Hydrogarden within 24 hours of delivery detailing the alleged damage or shortage.
- In all cases where defects or shortages are complained of Hydrogarden shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to Hydrogarden before any use is made thereof or any alteration or modification is made thereto by the Buyer.
- The Buyer should email a digital photograph(s) to support any claim for defective Goods damaged in In the event of non-delivery, the carriers and Hydrogarden should be advised within five Business Days of expected delivery.
- Subject to Conditions 10.3 and 10.4, Hydrogarden shall make good any shortage in the Goods and where appropriate replace any Goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability arising from such shortage or damage.
11. Risk and Property
- Risk of damage to or loss of the Goods shall pass to the Buyer in accordance with the relevant provision of Incoterms or where Incoterms do not for any reason apply:-
- In the case of Goods to be delivered at Hydrogarden’s premises, the time when Hydrogarden notifies the Buyer that the Goods are available for collection; or
- In the case of Goods to be delivered otherwise than at Hydrogarden’s premises; the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when Hydrogarden has tendered delivery of the Goods.
- Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until Hydrogarden has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by Hydrogarden to the Buyer for which payment is then due.
- Until such time as the property in the Goods passes to the Buyer:-
- the Buyer shall hold the Goods as Hydrogarden's agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Hydrogarden's property;
- the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to Hydrogarden for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and in the case of tangible proceeds, properly stored, protected and insured; and
- provided the Goods are still in existence and have not been resold, Hydrogarden shall be entitled at any time to require the Buyer to deliver up the Goods to Hydrogarden and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
- The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Hydrogarden, but if the Buyer does so all money owing by the Buyer to Hydrogarden shall (without prejudice to any other right or remedy of Hydrogarden) forthwith become due and payable.
- Hydrogarden may assign the Contract or any part of it to any person, firm or company.
- The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Hydrogarden.
13. Warranties and Liability
- Subject to the conditions set out below Hydrogarden warrants that the Goods will correspond with their specification at the time of delivery and will be of satisfactory quality.
- Hydrogarden shall be under no liability in respect of any defect arising from any wilful damage, negligence, subjection to abnormal conditions, failure to follow Hydrogarden’s instructions (whether oral or in writing), misuse or alteration of the Goods without Hydrogarden’s approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party.
- Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
- No Goods may be returned to Hydrogarden without the prior agreement in writing of Hydrogarden. Any Goods returned which Hydrogarden is satisfied were supplied subject to defects of quality which would not be apparent on inspection may be replaced free of charge or, at Hydrogarden’s discretion, Hydrogarden may refund or credit to the Buyer the price of the defective Goods but Hydrogarden shall have no further liability to the Buyer.
- The Buyer shall ensure that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory and other regulatory requirements and that the storage and handling of the Goods by the Buyer is carried out in accordance with directions given by Hydrogarden or any competent governmental or regulatory authority and the Buyer will indemnify Hydrogarden against any liability loss or damage which Hydrogarden might suffer as a result of the Buyer’s failure to comply with this condition.
- Goods not covered by any current warranty may be repaired by Hydrogarden, and will be billed at its hourly rate ruling at the time of return (currently £00 per hour with a minimum charge of £50.00).
14. Limitation of Liability
- Nothing in these Conditions excludes or limits the liability of Hydrogarden:
- for death or personal injury caused by Hydrogarden's negligence; or
- for any matter which it would be illegal for Hydrogarden to exclude or attempt to exclude its liability; or
- for fraud or fraudulent misrepresentation.
- Subject to Condition 14.1:
- Hydrogarden's total liability arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
- Hydrogarden shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
- Hydrogarden is committed to supplying quality Goods and outstanding Whilst every care is taken in processing customer orders, problems can occur. If the Buyer has any problem with a delivery or Goods supplied by Hydrogarden, they should contact Hydrogarden’s Urban Agriculture Sales Department. If the problem is of purely a technical nature then a member of Hydrogarden’s Technical Sales Team will liaise with the Buyer and endeavour to resolve the issue. If the problem cannot be resolved in this way, then the problem will be handled by Hydrogarden’s Returns Department.
- There is a process that needs to be followed in all cases. In summary:
- Hydrogarden does not offer any ‘sale or return’ facility;
- from time to time Hydrogarden may, at its discretion, agree to the return of Goods which are neither faulty nor damaged. Goods returned under these circumstances will be subject to a minimum 30% handling charge together with any carriage charges incurred by Hydrogarden;
- Hydrogarden will refuse to accept any return of Goods which have been modified in any way or which have not been used in accordance with the manufacturer’s instructions;
- it is the Buyer’s responsibility to test and satisfy itself that any fault with the Goods is genuine;
- any return of alleged defective Goods subsequently shown to be working within the manufacturer’s specification will be subject to a ‘no-fault found’ fee at the rate ruling at the time of return (currently £50.00), together with any carriage charges incurred by Hydrogarden.
16. Buyer’s Default
- If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Hydrogarden, Hydrogarden shall be entitled to:-
- cancel the order or suspend any further deliveries to the Buyer;
- appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and Hydrogarden) as Hydrogarden may think fit (notwithstanding any purported appropriation by the Buyer);
- charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of eight per cent per annum above the Bank of England base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); and
- where the price is to be paid in a currency other than Sterling charge to the Buyer the reduction in the amount of pounds sterling receivable by Hydrogarden on conversion of the proceeds by Hydrogarden’s bankers as a result of variations in the rate of exchange between the due date and the date of actual payment.
- This Condition applies if:-
- the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; or
- the Buyer becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or
- an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
- the Buyer ceases, or threatens to cease, to carry on business; or
- Hydrogarden reasonably apprehends that any of the events mentioned above is about to concur in relation to the Buyer and notifies the Buyer accordingly.
- If Condition 16.2 applies then, without prejudice to any other right or remedy available to Hydrogarden, Hydrogarden 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.
17. Confidentiality, Publications and Endorsements
- The Buyer undertakes to Hydrogarden that:
- the Buyer will regard as confidential the Contract and all information obtained by the Buyer relating to the business and/or products of Hydrogarden and will not use or disclose to any third party such information without Hydrogarden’s prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer’s default;
- the Buyer will not use or authorise or permit any other person to use any name, trade mark, house mark, emblem or symbol which Hydrogarden is licensed to use or which is owned by Hydrogarden in any manner whatsoever unless such use shall have been previously authorised in writing by Hydrogarden and (where appropriate) its licensor;
- the Buyer will use all reasonable endeavours to ensure compliance with this Condition by its employees, servants and agents.
- This Condition shall survive the termination of the Contract.
- All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or by e-mail:
- (in case of communications to Hydrogarden) to its registered office or such changed address as shall be notified to the Buyer by Hydrogarden; or
- (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to Hydrogarden by the Buyer.
- Communications shall be deemed to have been received:
- if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or
- if delivered by hand, on the day of delivery; or
- if sent by fax or e-mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.
19. Force Majeure
- In the event that either party is prevented from fulfilling its obligations under the Contract by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Condition 19.2) or harvest, growing or processing limitations, the party shall not be deemed to be in breach of its obligations under these Conditions. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.
- Condition 19.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.
20. Buyer’s duty to advise of special requirements
- When placing the order the Buyer must advise Hydrogarden in writing of any special, legal, administrative, phytosanitary or regulatory requirements applying in the territory in which the Buyer is to import, use or sell the Goods and the Buyer must advise Hydrogarden immediately of any change made in such requirements.
21. Buyer’s duty to comply with import legislation and regulations
- 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 thereon.
- No waiver by Hydrogarden 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.
- 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 thereby.
24. ULISG 1980
- The Uniform Laws on the International Sale of Goods laid down in the 1980 United Nations Convention shall not apply unless expressly agreed between the parties in writing.
25. Third Party Rights
- A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
26. Governing Law and Jurisdiction
- The Contract shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English and Welsh courts.