In these conditions:
“The Seller” means Farmplan Computer Systems, a division of LNRS Data Services Ltd.
“The Buyer” means the person, partnership, company or body with whom the Seller contracts.
“The Contract” means the contract between the Seller and the Buyer for the sale and purchase of the Goods.
“The Hardware” means the hardware and ancillary items supplied or to be supplied by the Seller pursuant to the Contract.
“The Software” means the software and ancillary items supplied or to be supplied by the Seller pursuant to the Contract.
“Goods” means the Hardware (if any) and the Software (if any).
“These conditions” mean the terms and conditions set out herein and any terms or conditions expressly stated on or expressly incorporated by reference into the Contract. The Buyer hereby acknowledges that it has not relied on any statement, warranty or representation as to the use, function, or state of Goods including but not limited to promotional or trade literature or published performance figures emanating from the Seller, other than as specifically contained in a written quotation of the Seller.
2.1 The Goods are sold subject to these conditions in accordance with any written quotation of the Seller accepted by the Buyer or any written order of the Buyer accepted in writing by the Seller. Any other terms and conditions subject to which any such quotation is accepted or any such order is made are excluded.
2.2 If an order confirmation is despatched by the Seller in response to the Buyer’s written or verbal order, such order confirmation shall constitute the Seller’s offer to sell the Goods subject to these terms and conditions and the acceptance by the Buyer of delivery of the Goods shall constitute the Buyer’s acceptance of such offer subject to these terms and conditions.
2.3 No variation to these conditions shall be binding, unless agreed in writing between the Buyer and the Seller.
2.4 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. The Buyer does not rely on and waives any claim for breach of any representations not so confirmed.
2.5 Any non-standard Goods requiring special manufacturing will only be accepted against a written order accepting these conditions.
2.6 The quantity, specification and description of the Goods shall be set out in the Seller’s written quotation or the Seller’s order confirmation of the Buyer’s written or verbal order.
2.7 The Seller reserves the right to make any changes in the specification of the Goods which do not materially affect their quality or performance, or which are necessary to conform with safety or other statutory requirements.
2.8 No written or verbal quotation by the Seller which has been accepted by the Buyer may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss, costs, damages, charges and expenses incurred by the Seller as a result of cancellation.
2.9 Goods delivered in correct execution of any Contract may on no account be returned without agreement in writing by the Seller. A handling charge of not less than 15% of the invoiced values will be made on all Goods authorised to be returned by the Seller which have been supplied in correct execution of a Contract and which are not defective.
3.1 The price of the Goods shall be the price quoted by the Seller to the Buyer or stated in any order confirmation.
3.2 The Seller reserves the right to increase the price to reflect any increase in the cost to the Seller, which is due to any factor beyond the control of the Seller (including any foreign exchange fluctuation, currency regulations, alterations of duties, significant increases in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
3.3 The price is exclusive of Value Added Tax, which the Buyer shall pay to the Seller.
3.4 All prices are exclusive of delivery charge to the Buyer, unless otherwise agreed in writing by the Seller. The Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance for deliveries, unless otherwise agreed in writing by the Seller.
4.1 Unless otherwise agreed in writing, the Buyer shall pay 25% of total order value including VAT on placing the order for the Goods and the remaining 75% of total order value including VAT when the Goods are tendered for delivery. The time of payment shall be of the essence.
4.2 Failure to pay any part of the purchase price on the due date entitles the Seller (without prejudice to any other right or remedy available to it) to:
4.2.1 cancel the Contract or suspend delivery;
4.2.2 appropriate any payment to such Goods as the Seller may think fit; and
4.2.3 charge the Buyer on the unpaid amount from the due date until the date of actual payment (whether before or after judgement) at the rate of three percent per annum above HSBC Bank Plc base rate from time to time.
5.DELIVERY AND RISK
5.1 Dates quoted for delivery are approximate only. The Seller shall not be liable for any delay in delivery. Time for delivery shall not be of the essence.
5.2 If the Buyer refuses to take delivery of the goods supplied in correct execution of the order and which are not defective the Seller may charge for return transport. Any failure by the Buyer to take delivery of the Goods shall not relieve the Buyer of his obligation to pay the contract price in respect thereof.
5.3 Where damage to or loss of the Goods occurs before delivery thereof to the Buyer, the Seller undertakes (subject as provided below) to replace or (at its discretion) to repair free of charge any Goods so damaged or lost. The foregoing undertaking of the Seller is conditional upon:
5.3.1 the Buyer giving written notice of such damage or loss with reasonable particulars thereof to the Seller within three days of the receipt of the Goods or in the case of total loss within seven days of receipt of the Seller’s order confirmation or other notification; and
5.3.2 the Buyer allowing the Seller facilities to inspect any damaged Goods and if requested by the Seller, and at the Seller’s expense, returning any damaged Goods to the Seller’s works within five days of receipt of such request.
5.4 If the Buyer wrongly fails to take delivery of the Goods the risk of damage to or loss of the Goods shall pass to the Buyer at the time when the Seller has tendered delivery of the Goods.
5.5 Save as expressly provided in this Clause 5, the Seller shall not have any liability whatsoever for or in connection with any damage to or loss of the Goods in transit to the contracted place of delivery.
6.1 Notwithstanding delivery and the passing of risk, the property in the Hardware shall not pass to the Buyer until the Seller has received payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
6.2 Property in the Software shall not pass to the Buyer.
6.3 Until such time as the property in the Hardware passes to the Buyer the Buyer shall:
6.3.1 hold the Hardware as the Seller’s fiduciary agent and bailee; and
6.3.2 keep the Hardware separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property; and
6.3.3 be entitled to resell or use the Hardware in the ordinary course of its business but shall account to the Seller for the proceeds of sale or otherwise of the Hardware 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.
6.4 Until such time as the property in the Hardware passes to the Buyer (and provided the Hardware is still in existence and has not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Hardware to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Hardware is stored and repossess the Hardware.
7.WARRANTIES AND LIABILITY (SOFTWARE)
7.1 The Seller warrants that the diskette on which the Software is supplied will be free from defects in materials and workmanship under normal use for a period of 90 days after the date of original purchase (“the Warranty Period”). If a defect in the diskette shall occur during the Warranty Period it may be returned with proof of purchase to the Seller who will replace it free of charge.
7.2 The Seller warrants that the Software will perform substantially in accordance with its accompanying documentation (provided that the Software is properly used on the computer and with the operating system for which it was designed) and that the documentation correctly describes the operation of the Software in all material respects. If the Seller is notified of significant errors during the Warranty Period it will correct any such demonstrable errors in the Software or its documentation within a reasonable time or (at its option) provide or authorise refund (against return of the Software and its documentation).
7.3 The above represent the Buyer’s sole remedies for any breach of the Seller’s warranties, which are given only to the Buyer.
7.4 The express terms of these conditions are in lieu of all warranties, conditions, undertakings, terms and obligations implied by statute, common law, trade usage, course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law.
7.5 The Seller does not warrant that the Software will meet the Buyer’s requirements or that the operation of the Software will be uninterrupted or error-free or that defects in the Software will be corrected. The Buyer shall load and use the Software at the Buyer’s own risk and in no event will the Seller be liable to the Buyer for any loss or damage of any kind (except personal injury or death resulting from the Seller’s negligence) including lost profits or other consequential loss arising from the Buyer’s use of or inability to use the Software or from errors or deficiencies in it whether caused by negligence or otherwise except as expressly provided herein. In no event shall the Seller’s liability exceed the amount paid by the Buyer for the Software.
8.WARRANTIES AND LIABILITY (HARDWARE)
8.1 The Seller warrants that for a period of 12 months (1 month for second hand Hardware) from the date of delivery of the Hardware to the Buyer, the Hardware shall be free from defects in materials and workmanship.
8.2 If any breach of the foregoing warranty is notified to the Seller within 14 days of the date of its discovery by the Buyer (and if the Buyer fails so to notify the Seller the Buyer shall be deemed to have waived such breach) the Seller shall forthwith at its option either repair or replace the Hardware or such parts of it as are defective without charge. The foregoing warranty shall be in lieu of all warranties, condition or representations whether express, implied, statutory or otherwise.
8.3 The Seller’s obligations to the Buyer in any proceeding relating to the Hardware whether in contract or in tort shall be limited to the repair or replacement of the Hardware.
8.4 In no event whatsoever shall the Seller have any liability in respect of consequential loss or damage whether in respect of loss of business or profits or otherwise arising out of or in connection with the use, non-use, performance or non-performance of the Hardware.
8.5 Nothing herein shall take effect so as to limit or exclude liability for death or personal injury.
9.1 The Seller shall not be liable for any delay in performing or any failure to perform any of its obligations if the delay or failure was due to any cause beyond the Seller’s reasonable control, including:
9.1.1 act of God, explosion, flood, tempest, fire or accident;
9.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
9.1.4 import or export regulations or embargoes;
9.1.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or a third party);
9.1.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.1.7 power failure or breakdown in machinery.
10.INSOLVENCY OF BUYER
10.1 The Seller shall be entitled to cancel the Contract and suspend any further deliveries without any liability to the Buyer and, if Goods have been delivered but not paid for, the price shall become immediately due and payable if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or
10.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases or threatens to cease to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
11.1 The Buyer, upon delivery of the Software, accepts a non-exclusive licence to use the Software which shall commence upon payment in full for the Goods upon the terms of this clause 11.
11.2 The Buyer is permitted to:
11.2.1 load the Software into and use it on a single computer which is under its control;
11.2.2 transfer the Software from one computer to another provided it is used on only one computer at any one time;
11.2.3 use the Software on a computer network provided that the Buyer has purchased such number of copies of the Software equal to the maximum number of copies of the Software in use on that network at any one time;
11.2.4 make up to 1 copy of the Software for back-up purposes only in support of the permitted use. The copies must reproduce and include the Seller’s copyright notice as set out in the Software;
11.2.5 transfer the Software (complete with all its associated documentation) and the benefit of this licence to another person provided that he has agreed to accept the terms of this licence and the Buyer contemporaneously transfers all copies of the Software which the Buyer has made to that person and destroys all copies not so transferred. If any transferee does not accept such terms then this licence shall automatically terminate. The transferor does not retain any rights under this licence in respect of the transferred Software.
11.3 The Buyer is not permitted:
11.3.1 to load the Software onto a network server for the purposes of distribution to one or more other computer(s) on that network or to effect such distribution (such use requiring a separate licence);
11.3.2 except as expressly permitted by this licence and save to the extent and in the circumstances expressly required to be permitted by law, to rent, lease, sub-licence, loan, copy, modify, adapt, merge, translate, reverse engineer, decompile, disassemble or create derivative works based on the whole or any part of the Software or its associated document, or use, reproduce or deal in the software or any part thereof in any way.
11.4 This licence is effective until the Buyer terminates it by destroying the Software and its documentation together with all copies. It will also terminate if the Buyer fails to abide by its terms. Upon termination the Buyer agrees to destroy all copies of the Software and its documentation including any Software stored on the hard disk of any computer under the Buyer’s control.
12.1 Any notice required to be given by either party to the other shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.2 No waiver by the Seller 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.
12.3 The Contract shall be governed by English law.