BenholmGroupLtd|Terms&Conditions
1. GENERAL.
Unless otherwise agreed in writing by Benholm Group Limited or assigns or successors in title ("we", "us") these terms and conditions shall apply to any order for goods and/or services placed by a customer (''you") to the exclusion of any other terms that you seek to incorporate or impose, or which are implied by law, trade custom. practice or course of dealing. Where goods are to be maintained by us. the terms set out in Schedule A below shall also apply. Where goods are to be hired, the terms set out in Schedule B below shall also apply. Any quotation given by us remains valid for 30 days only and may be extended or withdrawn by us at any time prior to its acceptance. A contract shall exist between us for the sale or rental of goods and/or supply of maintenance or other services in accordance with these terms and conditions and any agreed quotation ("Contract") when you advise that you wish to proceed with an order.
2. TERMS OF PAYMENT.
For one off purchases, full payment for all goods shall be made at the time of your order. For Rental and Maintenance customers, the first quarter payment is due as deposit with order and issued quarterly in advance thereafter with payment due to us within 30 days of the date of the invoice (bank details provided on the invoice and can be confirmed separately if required). If you fail to make a payment due to us by the due date then, without limitation to our other rights or remedies, we may charge you, including interest, on the overdue sum from the due date until payment of the overdue amount, whether before or after judgment together with any costs (including legal or other recovery costs) we incur as a result of such late payment. Interest under this clause will accrue at the rate specified by the Late Payment of Commercial Debts (Interest) Act 1998. Time for payment shall be of the essence of the Contract.
3. PRICE.
It is a condition of acceptance of any order that due to possible fluctuations in the cost of labour, raw materials, delivery or other costs of supply, the goods are invoiced for by us and paid for by you at our prices in force at the date of our invoice. Prices quoted for goods do not include Value Added Tax or (unless agreed otherwise) delivery charges which shall be invoiced by us and payable by you in addition to the price of the goods, at which point VAT will be added.
The word 'Delivery' shall be understood in all these terms and conditions to mean the point in time and place at which the goods pass(ed) from our hands into your hands or those of any party acting on your behalf.
5. WARRANTY AND CLAIMS.
We warrant that on delivery any goods sold or hired to you will conform in all material respects with their description and any specification agreed in writing between you and us and will be free from material defects. Your sole remedy for breach of this warranty will be (at our discretion) the repair or replacement of any defective goods or a full refund of the relevant price paid by you. You must examine the goods on Delivery for any obvious damage or shortage and any claims must be communicated to both us and the carrier (where used) in writing within 72 hours of Delivery. Any other claim that the goods are not in conformity with the warranty in this clause must be communicated to us within 7 days of Delivery. If you fail to give notice in accordance with this clause, goods of the quality and quantity ordered by you shall be deemed to have been delivered to you and you shall be bound to pay for the same.
6. LIMITATION OF LIABILITY.
All warranties, conditions or other terms implied by statute or common law are excluded from your order to the fullest extent permitted by law. Except in respect of death or personal injury caused by our negligence or any other liability that cannot lawfully be limited or excluded, our liability to you under or in connection with any order (including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise) shall be limited as follows:
(a) our total liability to you in respect of any order for goods shall not exceed the price paid by you for such goods:
(b) our total liability to you in respect of any order for services shall not exceed the price paid for such services in the 12 months immediately preceding the date of any event giving rise to a claim; and
(c) we shall not be liable to you for any loss of profit or sales, damage to goodwill or any indirect or consequential loss, (in all cases whether or not caused by our negligence or that of our employees or agents).
7.FLAME RETARDANCY.
a) Without prejudice to clause 6 above, where we provide any flame retarding treatments or supply plants or materials described as flame retardant, we give no guarantee or warranty as to the effectiveness of such treatments or flame retardant properties of said products and you accept sole responsibility to satisfy
yourself as to their effectiveness or flame retardancy to the level required by you. If we supply any certificate in respect of flame retardancy this demonstrates only that the relevant manufacturer has (to the best of our knowledge) carried out flame retardancy testing and the certificate does not provide any guarantee of future flame retardancy.
b) We do not accept any responsibility for advising or deciding if flame retardant treatment is warranted. We suggest you ask those qualified in that area of expertise.
c) For the avoidance of doubt, it is not applied or inherent unless confirmed in writing.
8.TITLE.
The risk of any loss or damage to or deterioration of the goods from whatever cause arising shall pass to you upon Delivery but title to the goods shall not pass to you until we receive payment in full for them. We require a minimum temperature of 12 degrees Centigrade for live interior plants or as otherwise specified by us.
Until such time as you become the owner of the goods, you will: (a) be a bailee of them only and you will store them at your premises separate from your own goods or those of any other person and in a way which makes them readily identifiable as our goods.
(b) not amalgamate, conjoin or in any way mix them with other goods whether belonging to you or any other person nor remove, deface or obscure any identifying mark or packaging on or relating to the goods.
(c) maintain the goods in satisfactory condition and keep them insured against all risks for their full price on our behalf from the date of Delivery.
(d) notify us immediately if you become subject to any of the events listed in clause 13 below; and
(e) give us such information as we may reasonably require from time to time relating to the goods or your ongoing financial position
At any time before title to the goods passes to you, we may require you to return all of the goods in your possession to which this contract relates and if you fail to do so promptly, we may enter the premises where they are stored or where they are reasonably thought to be stored and repossess the same.
9. THIRD PARTY LIABILITY.
You will indemnify us to the extent lawfully permitted against any claim which arises from or in connection with the supply of goods whether such liability arises by reason of our negligence or our breach of contract or our breach of statutory duty or by whatsoever means any such liability may arise.
10. DESCRIPTION.
Dimensions, weights and descriptions of goods stated in any of our quotations, orders, catalogues or circulars are approximate only and are not binding as to detail. When we are supplied with drawings or otherwise, we rely on these and if discrepancies arise, any costs incurred are chargeable to you.
11. DELIVERY DATE.
Any date of Delivery (whether for hired goods or purchased goods) stated by us is an estimate only and we shall not be liable for any consequence of delay howsoever caused. If you are unable to accept any goods (whether hired or purchased) on the estimated date stated by us or the date requested by you and agreed by us, you shall reimburse us any additional costs we incur (including storage, labour and transport) as a result of the delay.
12. CANCELLATION.
We may cancel an order without further liability to you if after acceptance the goods set aside for such order are destroyed or damaged beyond repair and cannot be replaced. No order may be cancelled or varied by you without our written consent. Where (in our sole discretion) we give such consent, it may be subject to you compensating us for any loss or expense arising from such cancellation or variation.
13. TERMINATION.
Without affecting any other right or remedy available to us, we may terminate the Contract with immediate effect by giving written notice to you if:
(a) you become (or are deemed to be) insolvent or otherwise unable to pay your debts as they fall due or if any insolvency-related event, action or appointment takes place in relation to you; or
(b) you commit a breach of the Contract (or any other contract between you and us) including failing to pay any amount when due. Following termination of the Contract (and without prejudice to any other rights or remedies which we may have) we shall be entitled to retain any deposit monies paid by you. Where we have a right to terminate the Contract, we may instead suspend our obligations thereunder for any period notified to you (such period to be determined by us at our sole discretion).
14. FORCE MAJEURE.
We shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of our obligations under the Contract if such delay or failure result from events, circumstances or causes beyond our reasonable control. In such
circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
15. ASSIGNMENT.
You may not assign. transfer, mortgage, charge. subcontract. delegate. declare a trust over or deal in any other manner with any of your rights and obligations under the Contract without our prior written consent. In the absence of our consent for you to assign your obligations under the Contract, you shall remain fully liable for fulfilling such obligations.
16. SEVERANCE AND SURVIVAL.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable. it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. Any provision of these terms and conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
17. WAIVER.
No failure or delay by us to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy. nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18. ANTI-BRIBERY.
You and we shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including the Bribery Act 2010, have and maintain in place throughout the term of the Contract policies and procedures to avoid any bribery or corruption, and notify each other if either party becomes aware of any breach of this clause, or has reason to believe that it or any person associated with it has received a request or demand for any undue financial or other advantage in connection with the performance of this Contract.
19. ENTIRE AGREEMENT.
The Contract constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between you and us, whether written or oral, relating to its subject matter. You agree that in entering into the Contract you do
not rely on and shall have no remedies in respect of any statement. representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. You shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract. No variation of the Contract shall be effective unless it is agreed in writing by you and us.
20. GOVERNING LAW AND JURISDICTION.
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Scotland. You and we irrevocably agree that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
21. INTERPRETATION.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). Any words following the terms 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 to writing or written includes email, SMS and other forms of electronic communication. Documents 1 and 2 form part of these terms and conditions and have effect as if set out herein. General Terms means the main body of these terms and conditions but excluding Schedules A and B.
Schedule A
MAINTENANCE TERMS AND CONDITIONS
1.Any maintenance services provided by us are subject to the General Terms insofar as they are applicable and not inconsistent with the terms set out in this Schedule. In consideration of the sum shown in our quotation (which sum shall increase by not more than 12.5% per annum) plus VAT at the current rate payable to us by you, we agree to use all reasonable commercial endeavours to make regular maintenance visits throughout the period of the Contract for the purpose of maintaining the goods ordered, the first of which visits shall ordinarily be made within 30 days of the date of delivery of the goods. The Contract shall continue for one year from the date of delivery of the goods and thereafter until terminated by three months’ notice in writing given by either party to the other for whatever reason. We may invoice you for our maintenance charges annually in advance or such other frequency as agreed in writing. You must pay each invoice within 30
days after the date of invoice. You shall pay interest and costs arising from late payment as set out in the General Terms.
2.The said maintenance shall include cleaning, watering, pest control, feeding and automatic free replacement of dead, dying or overgrown plants with like or similar plants (except where such condition arises from accidental or malicious damage) together with any specific services set out in our quotation.
3.You must allow us access to the plant displays for the purpose of maintenance on working weekdays between the hours of 6am and 5.30pm (or as otherwise agreed between you and us) and you must provide us with sufficient access to hot and cold water to carry out such maintenance. We reserve the right to charge for costs incurred during any visit when such access is not available (except for where you have given us sufficient prior notice for us to reschedule any planned visit).
Benholm agree to make at least thirteen maintenance visits per year for the purpose of maintaining the goods.
4.For the avoidance of doubt, if live planting is delivered before a maintenance agreement is signed with us, we have no responsibility for any deterioration of the planting until a maintenance agreement is in place.
5.You must notify us promptly if any maintained goods have been damaged or have otherwise deteriorated between our maintenance visits.
6.You must notify us of any likely hazards at your premises which could pose any risk to the health and safety of our personnel, and you must use all reasonable endeavours to minimise any such risk.
7.We warrant that our services will be carried out with all reasonable care and skill. Your sole remedy for any breach of this warranty will be the reperformance by us of the affected services.
8.You must notify us of any interruption to services such as the temperature, watering, light, etc that may impact the health of the planting.
Schedule B
HIRE AND MAINTENANCE TERMS AND CONDITIONS
1. GENERAL
Any hire and maintenance services provided by us are subject to the General Terms insofar as they are applicable and not inconsistent with the terms set out in this Schedule. In accordance with the terms set out in our quotation, you hereby request that we install and hire to you the specified goods, to be kept and displayed at the delivery address set out in our quotation (or as otherwise agreed in writing).
The hired goods may in some circumstances make use of reclaimed materials and are not guaranteed to be new unless specified in the quotation.
2. LENGTH OF HIRE TERM
Subject to any earlier right to terminate set out in the General Terms, the hire term is for three years (or such other period set out in our quotation) ("Minimum Tenn") to commence on the date of Delivery of the goods and to continue until terminated by six months' prior written notice after the Minimum Term, served by either party to the other by first class recorded delivery post to the registered office address (if a limited company) or notified invoice address (in all other circumstances) of the other party. Email notification is acceptable but only if confirmed by us in writing/email.
3. HIRE RENT
The rental amount is as specified in our quotation (which rental shall increase by not more than 12.5% per annum from and after the expiration of the Minimum Term) plus VAT at the current rate and we may invoice you for such amount quarterly in advance (or at such other frequency as we agree in writing), and you must pay each invoice within 30 days after the date of invoice. You shall pay interest and costs arising from late payment as set out in the General Terms.
4. YOUR RESPONSIBILITIES
4.1. During the period of hire and until their return to (or collection by) us, you must keep the goods safe and ensure they are displayed and used in a proper manner, in accordance with any guidelines (including temperature ranges and light levels) issued by us from time to time. You will be liable for any loss of or damage to the goods from whatsoever cause arising (fair wear and normal usage excepted) and shall keep them insured against all risks. You must ensure your staff are instructed not to water, fertilise, modify, relocate or tamper with the goods.
4.2. On the termination (for any reason) of the hire you must promptly return the goods to us or arrange for us to collect them at your expense and (fair wear and normal usage excepted) the goods must be in a condition similar to their condition at the commencement of the hire. If you fail to return the goods promptly, we may enter the premises where they are stored or where they are reasonably thought to be stored and repossess the same.
4.3. You must not move the goods from the position at which you have agreed they will be kept and displayed without our prior written consent (which will always be subject to reimbursement of any expenses we incur in connection with such relocation).
4.4. You must not lend the goods to any other person for any reason whatever or sub-hire them or otherwise surrender your control or possession of them in any way without our prior written consent. The goods remain our property and cannot in any circumstances be sold or used as security.
5. MAINTENANCE
Full maintenance is included in respect of the hired goods and paragraphs 2 to 6 of Schedule A above shall apply with respect to such maintenance.
6. EARLY TERMINATION CHARGES
If the hire Contract is terminated by us prior to the expiry of the Minimum Term in accordance with our rights set out in the General Terms, or if we (at our sole discretion) agree to you terminating the hire Contract prior to the expiry of the Minimum Term, you shall pay to us on demand a sum equivalent to the greater of (a) 6 months' hire charges; and (b) the outstanding balance of the hire charges payable for the remainder of the Minimum Term. You agree that this is a genuine pre-estimate of our losses arising from such early termination.
7. REMOVAL OF OUR GOODS
We shall use reasonable care when removing any goods, but we shall have no obligation to restore the relevant part of your premises to its original state (or to reimburse you the costs of such restoration). If it is not possible for us to remove our goods. you shall reimburse us in full for the replacement value of the goods that cannot be recovered.