Lyn-Way Nurseries, Algarkirk, Nr Boston, Lincolnshire, PE20 2BE

Terms and Conditions of Trading

  1. Definitions

    1. “Buyer" means the person who buys or agrees to buy from the Seller.
    2. “Seller” means P.J.DUFFY & SON LTD.
    3. “Conditions” means the terms and conditions set out in this document and any special terms and conditions additionally agreed in writing by the Seller.
    4. “Contract” means the contract between the Seller and the Buyer for the supply of plants.
    5. “Plants” means the seed to be sown by, and plants to be propagated by the Seller, and which the Buyer agrees to buy from the Seller.
    6. “Price” means the price under any contract for the plants exclusive of VAT and delivery costs.
  2. Applicable Conditions

    1. These conditions shall apply to all sales or deliveries of plants by the Seller to the buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order, or similar document.
    2. All orders for plants shall be deemed to be an offer by the Buyer to purchase plants subject to these conditions.
    3. If the Buyer does not otherwise define a specification for the plants then the current P.J.DUFFY & SON LTD “standard plant specification” will be deemed to define the size, uniformity, colour and pest, disease and weed status of the plants.
    4. No contract for supply will be entered into unless the Buyer has confirmed, in writing, prior to the intended sowing date, as a minimum, the variety of plant required, the quantity of plants required, cell size, delivery / collection or sowing date.
    5. Acceptance of delivery, as evidenced by a signed delivery / collection note, of the plants shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.
    6. Any variation to these conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
  3. Supply of Seeds

    1. If for reasons outside the control of the Seller the germination rate of the seeds supplied by the Seller is lower than that which is reasonably to be expected, the Buyer will take delivery of such number of plants as the Seller can make available in accordance with condition 4 of the contract, and pay for such plants pro rata to the price. (this condition shall not apply to plants produced organically).
    2. SOLA’s are a use of crop protection products for which approval for use has been granted to growers, and are NOT endorsed by manufacturers. The Buyer warrants that the use of any crop protection product under any current SOLA is at the sole risk of the Buyer.
  4. Dispatch and Delivery / Collection

    1. Unless otherwise specifically agreed in writing the prices quoted for plants in the contract do not include the cost of delivery to the Buyer.
    2. Where a firm delivery date has been agreed between the parties, the Seller will use all reasonable endeavours to make plants available for collection, or to deliver the plants to the Buyer, by the specified date. However the Seller accepts no liability for any failure to do so, arising from reasons out-with his control, or if the plants could, despite the delay, be planted by the Buyer in time to achieve the crop reasonably anticipated at the time of the contract.
    3. If collection or delivery is to be effected in instalments then each collection or delivery shall be treated as a separate contract.
    4. Unless the Seller has agreed with the Buyer to arrange for the transport of the plants to the Buyer’s premises, the Buyer will arrange the collection from the Seller’s nursery within seven (7) working days of the Seller’s notification that the plants are ready for dispatch, at which time the Seller shall be entitled to invoice the Buyer for the price.
    5. Delivery of the plants shall be deemed to have taken place from the time when they are delivered to the Carrier.
    6. Where the Seller arranges transport for plants to the Buyer’s premises it will do so as Agent for and at the risk of the Buyer. The Buyer will pay the cost thereof at the same time as the price for the plants.
    7. The Buyer will at their own cost, and risk, return to the Seller all containers, modules and stillages in which the plants were delivered, clean and undamaged, and free of contamination. This condition will not apply to stillages supplied to the Seller by the Buyer.
  5. Additional Costs

    1. If the Buyer fails to take or accept delivery in accordance with condition 4.4, or if delivery / collection is delayed for reasons beyond the Seller’s reasonable control, the Seller shall be entitled to charge the Buyer with the additional costs incurred as a result, without prejudice to any other remedy available to the Seller.
  6. Ownership and Risk

    1. Notwithstanding delivery /collection, ownership of the plants shall remain with the Seller until all sums due from the Buyer under the contract have been paid to the Seller by the Buyer. Pending such payment, Buyer shall hold the plants as bailee and fiduciary for the Seller and keep then separate and identified as the Seller’s property. In the event of non-payment, or the insolvency of the Buyer, the Buyer agrees to allow the Seller to enter upon his land to recover and or harvest the plants to the net value of the amount outstanding on any account.
    2. The risk of damage to or destruction of the plants shall pass to the Buyer on delivery.
    3. Without prejudice to condition 6.1 the Seller may maintain an action against the Buyer for the price notwithstanding that the property in the plants have passed to the Buyer.
  7. Warranty

    1. The Supplier will make every effort to supply plants of the highest quality free of pests, diseased or weed, however no warranty to that effect can be given since such pests, diseased or weeds may result from circumstances outside the reasonable control of the Seller (such as may arise from the outdoor hardening off of transplants prior to dispatch or collection).
    2. Subject to compliance by the Buyer where applicable with the warranty set out in condition 3, and subject, as provided in conditions 8 and 9 below, the Seller warrants that on delivery or collection, the plants will conform to the varieties and /or description specified in the contract or in the agreed or default plant specification.
    3. The Seller does not accept liability for any breach of the warranty in condition 7.2 nor may the Buyer reject any part of the plants delivered on any ground unless notification in writing of the nature of the claim is received by the Seller immediately upon discovery, and in any event within seven (7) days of delivery / collection.
    4. The warranty in condition 7.2 is in lieu of all and any other conditions, warranties or terms whether express or to be reasonably implied by statute, as to the nature and quality of the plants, their fitness for any particular purpose, or the Seller’s methods of propagation, and all such conditions warranties, and terms are hereby expressed.
  8. Treatment at the Buyers Request

    1. Where, at the Buyers request any treatment (chemical or otherwise) is applied to the plants, or seeds, for or during their propagation, the Seller’s responsibilities shall be limited to such treatment being carried out in accordance with normal standards, and in accordance with the instructions (if any) given by the Supplier or manufacturer of the substance in question, and the Seller accepts no liability whatsoever for the effectiveness of the treatment or any damage direct, indirect or consequential, which may result therefrom.
  9. Limitation of Liability

    1. Subject as aforesaid the liability of the Seller for any breach of condition or warranty shall be limited at the absolute discretion of the Seller to:
      1. the replacement, at the Seller’s option, of the defective plants with plants of a similar variety or description or
      2. the refund of all payments made by the Buyer in respect thereof, together with the cost of replacement seed.
    2. Subject as aforesaid, in no circumstances shall the Seller be liable for any loss of profit, or of contracts, or any other indirect consequential or economic loss whatsoever.
    3. The Seller will indemnify the Buyer against any liabilities, costs, claims, demands and expenses arising from any personal injury or death to the extent that the same are caused by the negligence of the Seller or his employees acting in the course of their employment.
  10. Organic Plants

    1. By their nature plants produced organically are more prone / susceptible to pest, disease and nutritional disorder. The Seller’s charges are based on an estimated return of 90% saleable plants. It is possible that organic seed and organic methods of plant propagation may give rise to higher losses, or even to total production failure. The Seller will make its best endeavours to produce organic plants as a service to the Buyer, however the Seller cannot warrant organic plant production, neither can it wave its charges in the event of low plant stands or crop failure, because to do so would both require a substantially higher price for propagation and negate the essence of this contract, which, in the case of organic plant propagation is one for services, and not to supply a product.
  11. Force Majeure

    1. The Seller shall not be responsible for non-performance of any of it’s obligations under the contract caused by an Act of God, action by any Government or Regulatory Authority, exceptional or inclement weather, industrial dispute, lockouts or other industrial action, breakdown of machinery, power failure, fire, flood or any other contingency beyond it’s reasonable control.
    2. Should any plants produced under a contract be rendered unfit for delivery / collection by reason of any of the above the contract shall be deemed to be discharged so far as it is related to such plants.
  12. Payment

    1. Payment in full is due from the Buyer to the Seller within 30 days of invoice.
    2. Failure of the Buyer to provide payment by the due date will incur interest on the outstanding amount at a rate of 5% above the prevailing LIBOR rate, for each month or part of a month during which payment is overdue.
    3. The Buyer shall not be entitled to withhold, reduce, or set off against the price any amounts on the grounds of any counterclaim whether arising under the contract or otherwise.
  13. Dispute Resolution

    1. In the case of disputes arising out of the Contract, the parties will give due consideration to the resolution thereof by mediation through the centre for disputes resolution, or other similar mutually agreed body.
    2. Failing this any dispute shall be referred to a sole Arbitrator in accordance with the Arbitration Act 1996, to be appointed in default of agreement by the President, for the time being of the Chartered Institute of Arbitrators.
    3. The award of the Arbitrator shall be final and binding on both parties.
  14. Governing Law

    1. All questions arising out of or in connection with this contract shall be governed by English Law.
  15. Severance

    1. The parties agree that if any provision of these conditions is found to be unenforceable, and such provision shall fail, but the remainder of the contract and these conditions shall remain in full force and effect.