Terms of Sale & supply of goods

Aiva Limited (company number 09599672) (we and us) is a company registered in England and Wales and our registered office is at The White House, Letcombe Regis, Wantage, Oxfordshire, OX12 9JL. Our VAT number is 216584305. We operate the website www.aivafertiliser.co.uk.

These terms and conditions (Terms) apply to the order by you and supply of goods by us to you (Contract). No other terms are implied by trade, custom, practice or course of dealing.

The Contract is the entire agreement between us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.

1. Interpretation

1.1 Definitions:

1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes email.

2. Basis of contract

2.1 These Terms apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2 The Order constitutes an offer by you to purchase the Goods in accordance with these Terms. You are responsible for ensuring that the terms of the Order, and the Goods to which it relates, are appropriate for your intended use.

2.3 The Order shall only be deemed to be accepted when we issue a written acceptance of the Order, at which point and on which date the Contract shall come into existence. You may not cancel any Order after we have accepted it in writing without our written consent.

2.4 Any samples, drawings, descriptive matter or advertising produced by us, and any descriptions or illustrations contained in our catalogues or brochures or on our website, are produced for the sole purpose of giving an approximate idea of the Goods. They shall not form part of the Contract nor have any contractual force.

2.5 A quotation for the Goods given by us shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.

3. Goods
We reserve the right to amend the specification of the Goods from time to time or if required by any applicable statutory or regulatory requirement. It is your responsibility to ensure the then current specification is appropriate for your intended use.

4. Delivery

4.1 We shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if we require you to return any packaging materials to us, that fact is clearly stated on the delivery note. You shall make any such packaging materials available for collection at such times as we shall reasonably request. Returns of packaging materials shall be at our expense.

4.2 We shall deliver the Goods to the location set out in the Order or such other location as we may agree (Delivery Location) at any time after we notify you that the Goods are ready.

4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 If we fail to deliver the Goods, our liability shall be limited to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. We shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If you fail to accept delivery of the Goods within three Business Days of us notifying you that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or our failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 09:00 on the third Business Day after the day on which we notified you that the Goods were ready; and
(b) we shall store the Goods until actual delivery takes place, and charge you for all related costs and expenses (including insurance).

4.7 If ten Business Days after the day on which we notified you that the Goods were ready for delivery you have not accepted actual delivery of them, we may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Goods or charge you for any shortfall below the price of the Goods.

4.8 If we deliver up to and including 5% more or less than the quantity of Goods ordered you may not reject them, but on receipt of notice from you that the wrong quantity of Goods was delivered, we shall make a pro rata adjustment to the invoice for the Goods.

4.9 We may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.

5. Quality

5.1 We warrant that on delivery the Goods shall:
(a) conform in all material respects with their description; and
(b) be free from material defects in design, material and workmanship.

5.2 Subject to clause 5.3, if:
(a) you give notice in writing to us within 12 Business Hours of delivery of the Goods that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) we are given a reasonable opportunity of examining such Goods; and
(c) you (if asked to do so by us) return such Goods to our place of business at our cost,
we shall, at our option, replace the defective Goods, or refund the price of the defective Goods in full.

5.3 We shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:
(a) you make any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because you failed to follow our oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice regarding the same;
(c) you alter such Goods without our prior written consent;
(d) the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or
(e) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.4 Except as provided in this clause 5, we shall have no liability to you in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

5.6 These Conditions shall apply to any replacement Goods supplied by us

6. Title and risk

6.1 The risk in the Goods shall pass to you on completion of delivery.

6.2 Title to the Goods shall not pass to you until we have received payment in full (in cash or cleared funds) for the Goods.

6.3 Until title to the Goods has passed to you, you shall:
(a) store the Goods separately from all other goods held by you so that they remain readily identifiable as our property;
(b) not 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 from the date of delivery;
(d) notify us immediately if you become subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and
(e) give us such information as we may reasonably require from time to time relating to the Goods.

6.4 At any time before title to the Goods passes to you, we may require you to deliver up all Goods in your possession that have not been used or irrevocably incorporated into another product and if you fail to do so promptly, enter any of your premises or of any third party where the Goods are stored in order to recover them.

7. Price and payment

7.1 The price of the Goods shall be the price set out in the Order.

7.2 We may, by giving notice to you at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by you to change the delivery date(s), quantities or types of Goods ordered; or
(c) any delay caused by any instructions given to us by you or any failure by you to give us adequate or accurate information or instructions.

7.3 The price of the Goods excludes:
(a) amounts in respect of value added tax (VAT), which you shall additionally be liable to pay to us at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) the costs and charges of any additional or complimentary services arising or agreed between you and us, which shall be invoiced to you at the rate agreed between you and us.

7.4 We may invoice you for the Goods on or at any time after despatch of the Goods (or any instalment of the Goods). We may invoice you for any additional or complimentary services in accordance with agreed schedules, or from time to time as we consider appropriate in the absence of any agreed invoicing schedule.

7.5 You shall pay each invoice submitted by us:
(a) immediately upon receipt of an invoice unless we agree otherwise; and
(b) in full and in cleared funds to a bank account nominated in writing by us.
Time for payment shall be of the essence of the Contract.

7.6 If we have agreed credit terms with you, we are entitled to withdraw any such facility immediately on notice at any time.

7.7 If you fail to make a payment due to us under the Contract by the due date, then, without limiting our remedies under clause 9, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 8% a year.

7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Limitation of liability

8.1 The limits and exclusions in this clause reflect the insurance cover we have been able to arrange and you are responsible for making your own arrangements for the insurance of any excess liability.

8.2 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; and
(d) defective products under the Consumer Protection Act 1987.

8.4 Subject to clause 8.3, our total liability to you shall not exceed £1,000,000.

8.5 Subject to clause 8.3, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill;
(g) indirect or consequential loss; and
(h) loss or damage to any mixture to which you incorporate the Goods.

8.6 This clause 8 shall survive termination of the Contract.

9. Termination

9.1 Without limiting our other rights or remedies, we may terminate this Contract with immediate effect by giving written notice to you if:
(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 14 days of being notified in writing to do so;
(b) you take any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business;
(c) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
(d) you financial position deteriorates so far as to reasonably justify the opinion that your ability to give effect to the terms of the Contract is in jeopardy.

9.2 Without limiting our other rights or remedies, we may suspend provision of the Goods under the Contract or any other contract between you and us if you become subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under this Contract on the due date for payment.

9.3 Without limiting our other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under the Contract on the due date for payment.

9.4 On termination of the Contract for any reason, you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt.

9.5 Termination of the Contract, however arising, shall not affect any of your or our rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

9.6 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 shall remain in full force and effect.

10. Force majeure

Neither you nor we shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of our respective obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for three months, the party not affected may terminate the Contract by giving 30 days’ written notice to the affected party.

11. General

11.1 Assignment and other dealings.
(a) We may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of our rights or obligations under the Contract.
(b) You may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Contract without our prior written consent.

11.2 Entire agreement.
(a) The Contract constitutes the entire agreement between you and us.
(b) You acknowledge that in entering into the Contract you do not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

11.3 Variation.
No variation of this Contract shall be effective unless it is in writing and signed by you and us (or our respective authorised representatives).

11.4 Waiver.
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

11.5 Severance.
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. If any provision of the Contract is deemed deleted under this clause 11.5, you and we shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.6 Notices.
(a) Any notice given under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or its principal place of business (if different); or
(ii) sent by email to such email address that may be nominated by you or us from time to time for the purpose;
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 09:00 on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

11.7 Third party rights.
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of you or us to rescind or vary the Contract are not subject to the consent of any other person.

11.8 Governing law. 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 laws of England.

11.9 Jurisdiction. You and we each irrevocably agree that the courts of England and Wales 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.