Frontier Agriculture Ltd Terms and Conditions of Sale  June 2007 

FRONTIER AGRICULTURE LTD TERMS AND CONDITIONS OF SALE 

A. STANDARD CONDITIONS OF SALE 

1.  APPLICATION OF TERMS AND CONDITIONS 

1.1 These Terms and Conditions (the 'Conditions') constitute the only conditions on which Frontier Agriculture Limited is willing to supply goods (the 'Goods') and/or services (the 'Services') to any person to whom a quotation, confirmation of order or contract is addressed or from whom a telephone order is received (the 'Customer'). The Conditions shall prevail over any terms and conditions in the Customer's purchase order, confirmation of order or other document issued by the Customer. The Conditions are subject only to the Company's own Special Conditions for the sale of seed and the terms and conditions provided to the Customer in relation to agronomy advice provided to the Customer by the Company. No employee or agent of the Company has any authority whatsoever to alter, vary or waive the Conditions in any way unless expressly authorised in writing by a Director of the Company. Paragraphs in these Conditions referring to 'Goods' shall apply to all goods supplied by the Company except where such provisions are divided under sub-headings 'seeds', 'fertilisers, 'chemicals' or 'feeding stuffs', when the expression 'Goods' shall be limited to those goods specified in the sub-heading. The headings throughout these Conditions are neither binding nor form part of these Conditions.

1.2 No employee or agent of the Company has any authority to make or give any representation or warranty whatsoever in relation to either the Goods or the Services and any representations about the Goods or Services shall have no effect unless expressly agreed in writing and signed by a Director of the Company.

1.3 Each order for Goods or Services by a Customer (whether verbal or written) shall be deemed to be an offer by the Customer to purchase Goods or Services subject to these Conditions. No order placed by a Customer shall be accepted by the Company until confirmed unequivocally by the Company (whether verbally or in writing). Any quotation is given on the basis that no contract will come into existence until an order (whether verbal or written) is received from the Customer which is accepted by the Company. Following acceptance of an order from a Customer the Company may carry out credit checks in relation to the Customer and the contract for the sale of the Goods or Services is in all respects conditional on the receipt of satisfactory results of such credit checks. In the event that the results of such credit checks are not to the Company's satisfaction the Company may terminate the contract, without liability to either party.

1.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by the Company shall be subject to correction without any liability on the part of the Company.

1.5 The description of the Goods shall be as set out in the contract acknowledgement sent by the Company and the Goods shall comply in all material respects with such description. All information contained in the Company's catalogues or advertising is issued or published for the sole purpose of giving an approximate idea of the goods described therein and will not form part of the contract or be deemed to constitute a representation as to the accuracy of such matters. 

2. AVAILABILITY 

2.1 All sales of imported goods are subject to supplies being made to the Company by the normal supplier with whom the contract for their supply has been placed. In the event of failure of supplies from abroad and the Goods not being replaceable from other sources at a price no greater than that charged in any contract for the supply of the Goods to the Company current from time to time, the contract will be deemed to be cancelled without liability to either party provided that notice of such failure is given by the Company at the earliest opportunity. The Company shall have no liability as a result of failure to deliver the Goods for the reasons stated herein.

2.2 The Company reserves the right to cease to supply or provide any or all Goods and Services without prior notice for any reason, without liability to the Company or the Customer, subject to the Company's obligations under any pre-existing contracts. 

3. PRICES

3.1 Save where a quotation has been given to a Customer by the Company for the supply of Goods and/or Services (whether verbally or in writing), the prices listed in the Company's current catalogue or price list will apply to any contract, telephone order or confirmation of order. Prices quoted by the Company (whether verbally, in writing) or given in a price list or catalogue may be withdrawn by the Company at any time prior to a contract for Goods or Services being entered into.

3.2 The Company reserves the right to increase the prices of the Goods or the Services to reflect any increase in cost to the Company due to any change in law or regulation applicable to the Company, the Goods or the Services or tax, duty, levy or other payment whatsoever imposed upon the Goods or the Services after the date of the contract by the European Union or any national government. The Company also reserves the right to terminate, without liability, any contract the performance of which, as a result of any change in such law or regulation or imposition of such duty, will have a material adverse effect on the Company which cannot be resolved by an increase of the prices of the Goods or Services.

3.3 All prices are subject to the addition of VAT where applicable. 

4. PAYMENT

4.1 Payment is due at the Company's offices by the date specified on the Company's invoice save where alternative payment terms have previously been agreed in writing between the parties. The Company reserves at its discretion the right to require payment before delivery. Time for payment shall be of the essence.

4.2 If the Customer fails to make payment for Goods or Services on the due date under any contract then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled, at its discretion, to do any of the following: -   

 (i)   cancel the contract and any other contract between the Company and the Customer or suspend further deliveries to the Customer;   

(ii) appropriate payment made by the Customer to such of the Goods or Services (or Goods or Services supplied under any other contract) as the Company may think fit notwithstanding any purported  appropriation by the Customer;   

(iii) Sell or otherwise dispose of any Goods whether appropriated to the contract or not;   

(iv)  charge the Customer an amount equal to 2% of the amount outstanding under the contract each month until payment is made, the first such charge being on the day following the due date for payment and subsequent charges being on a monthly basis. The Customer shall not be entitled to any reimbursement of such charges as a result of payment of the amount outstanding being made part way through a month.   

(v) to sue for the price of the Goods even though title in them may not have passed to the Customer.  4.3  Payment will be made in full without deduction or delay in respect of any set-off, counterclaim or dispute unless confirmed by the Company in writing. 

5. DELIVERY

5.1 Unless otherwise agreed delivery of the Goods shall take place at the Company's place of business. The Customer will take delivery of the Goods within the time period set out in the contract for the sale of the Goods. 

5.2 If the Company agrees to deliver the Goods at any place other than the Company's premises:      

(i)  if the Goods shall be required to be stored in a particular manner whether pursuant to statute, manufacturer's instructions or otherwise then it shall be a condition of the contract that the Customer shall provide, at the place to which the Goods are to be delivered, storage facilities complying with such requirements and shall make arrangements to ensure that the Company's delivery operative has access to such facilities at the time of actual delivery. The Company shall be entitled to treat failure to make due provision in accordance with the terms of this sub-clause as failure to take delivery of the Goods;    

(ii)  the Customer shall provide staff to enable the Goods to be offloaded and provide suitable access to the point of unloading; and     

(iii)  delivery shall be deemed to have taken place immediately upon offloading of the Goods at their destination.

5.3  The Company's liability in respect to any total failure to deliver the Goods for any reason, other than any cause beyond the Company's reasonable control (including non-availability of goods from suppliers and non-availability of transport services) or as a result of the Customer's fault, shall be limited to the excess (if any) over the price of the Goods of the price of similar goods to the Customer (in the cheapest available market) to replace those not delivered, provided always that written notice of non-delivery is given by the Customer within 14 days of the last day of the time period for delivery set out in the contract. This clause relates strictly to non-delivery and not to late delivery which is dealt with in Clause

5.4. Time shall not be the essence of the contract either in relation to the delivery of the Goods or the completion of the Services and the Company shall not be liable for any loss (including loss of profit), damage, costs, charges or expenses howsoever arising directly or indirectly from any delay in the delivery of the Goods or completion of the Services by the date specified in the contract. 5.5 The Company shall be entitled to deliver the Goods within any agreed period in one or more consignments. Unless otherwise expressly agreed, each delivery or consignment shall stand as a separate contract. The Company shall be entitled to render its invoice for those Goods which have been delivered and to receive payment therefore in accordance with the contract and these Conditions notwithstanding that the remainder of the Goods have not been delivered.

5.6 In the event that the Customer will not accept delivery of any of the Goods (whether by collection from the Company's place of business or by delivery at any other place agreed between the parties) or the Company is unable to deliver because the Customer has failed to give the Company adequate delivery instructions or appropriate authorisations within the time period for delivery set out in the contract for the sale of the Goods (otherwise than by reason of the Company's fault) then without prejudice to any other right or remedy available to the Company:-    

(i) risk in the Goods will pass to the Customer and the Customer shall remain liable for the price of the Goods unless and until sold in accordance with (iv) below;    

(ii) the Company may store the goods until actual delivery and charge the Customer the reasonable costs (including insurance) of storage and of any failed delivery of the Goods by the Company to the Customer and of any return of the Goods to the Company;     

(iii) the Company shall not be liable for any deterioration of the Goods after the time period for delivery set out in the contract; and    

(iv) the Company may sell the Goods at the best price readily obtainable and charge the Customer for any shortfall below the price under the contract, together with any reasonable expenses incurred in relation to such sale, and the Company shall have no further liabilities under the contract with the Customer. 

6. QUANTITIES

6.1  Delivery of a shortage or surplus not exceeding 5% of the quantity or weight of the Goods ordered shall, at the Company's option, be considered to be due execution of the contract and the Customer shall not be entitled to object to or reject the Goods by reason of such surplus or shortfall. The Company shall have the right to the return of any surplus over the amount of Goods ordered.

6.2 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.

7. RISK/OWNERSHIP

7.1 The Goods are at the risk of the Customer from the time of delivery or, if earlier, as provided in paragraph 5.6.

7.2 The Company shall remain the sole and absolute owner of the Goods until such time as the price of the Goods and all other monies which are or which become due to the Company from the Customer have been paid to the Company by the Customer in cash or cleared funds. Until such time the Customer shall:    

(i) be the bailee of the Goods for the Company;    

(ii) store them separately from the Customer's own Goods or those of any other  person and in a manner which makes them readily identifiable as the Goods of the Company;    

(iii) hold the proceeds of the insurance on trust for the Company and not mix them with any other money. Until such time as ownership passes to the Customer the Customer shall be entitled to re-sell or use the Goods in the ordinary course of business until permission to do so is withdrawn in writing by the Company.

7.3 The Customer's right to possession of the Goods shall cease at whichever is the earliest of the following dates: -   

(i) on the failure by the Customer to perform its obligations under any contract with the Company or under these Conditions; or   

(ii) on the Customer being the subject of any one of the events listed in Clause 14.1 of these Conditions.

7.4 The Customer grants the Company, its agents and employees an irrevocable licence to enter any premises where the Goods are stored to inspect them or, where the Customer's right to possession has terminated, recover them.

7.5 The Customer 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 the Company but if the Customer does so, all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) immediately become due and payable. 

8. INSPECTION

8.1 The Customer must carefully examine the Goods on delivery and shall, other than for defects in bulk deliveries, within 3 working days of delivery of the Goods give notice in writing to the Company of any short or over delivery (in excess of 5% only) or any defects reasonably discoverable on careful examination. In the case of such defects in Goods delivered in bulk, notice must be given verbally to the Company before the load has been discharged. In the absence of receipt of such notice, the Company shall be discharged from all liability in respect of defects reasonably discoverable on careful examination on delivery or short or over delivery. In the event that the Customer establishes that the goods are so defective, the Customer's sole remedy shall be limited as the Company may elect to the replacement of the defective Goods or a refund of the price of the Goods on return of the Goods to the Company. Notwithstanding Clause 15.1, arbitration proceedings must be claimed in relation to defects reasonably discoverable on careful examination within 28 days from the date of delivery of the Goods. 

9.  WARRANTIES FOR GOODS AND STANDARD OF SERVICES

9.1   (a) SEED   

(i) All seeds sold by the Company comply at the time of delivery with the UK Seeds Regulations currently in force and the minimum standards of the EC Seeds Directives unless otherwise stated.  

(ii)  Diseases of plants can be transmitted by the wind, by insects, by animals or by human agencies and may be seed-borne or soil-borne. The Company believes the Goods are free from latent defects but it is not a condition of sale nor does the Company warrant that any Goods shall be free from such defect and the Company will not be responsible in any way for the resultant crop since any failure can depend on many factors outside the Company's control. In particular and without prejudice to the generality of this Clause, although every care is taken in the selection of cereal seed, it is not a condition of sale, nor does the Company warrant, that seed is sold free from loose smut and the Company will not accept any liability whatsoever for any direct or consequential damage which the Customer might suffer as a result of the presence of loose smut in the seed sold.   

(iii) Where specially treated or tested seed is offered, the Company's warranty is limited to the fact that the treatment or testing to the specification quoted has been carried out.   

(iv) The Company excludes all liability whatsoever for:   a) any defects in the Goods which could not reasonably have been discovered by the Company prior to delivery and for any defects in the Goods occurring without any negligence on the part of the Company.   b) all latent defects referred to in paragraph (ii) above.   

(v) Orders are accepted by the Company subject to Goods of the contract description being available to the Company. In the event that the Company's production contracts with third parties do not produce sufficient quantities of the required quality of seed of the contract description to meet the Customer's requirements the Company shall not be under an obligation to purchase such seed from alternative sources of supply and the contract is deemed to be cancelled without liability to either party in relation to the unperformed portion.    

(b)   CHEMICALS AND FERTILISERS   The Company gives no warranty whatsoever in relation to chemicals and fertilisers since the Goods are not of its manufacture. However the Company will use its reasonable endeavours to pass on to the Customer any guarantee or warranty which it may have been given by the manufacturer.    

(c)    FEEDING STUFFS    

(i)    The Statutory Statement shall contain the actual amounts and other particulars required by the Agriculture Act 1970, as at any time amended, and this shall be the only warranty given under the contract of sale. Claims for breach of contract in respect of this warranty shall be admitted and settled only in accordance with the provisions of Part IV of the Agriculture Act 1970 and various regulations made under the Act.   

(ii)  The Goods are not intended for sale or sold for direct feed, but are only suitable as raw materials for further processing and mixture with other materials as to which no warranty is given or to be implied as to the percentage of these goods to be used in any such operations which are at Customer's sole risk.

9.2 All other warranties (other than those in clause 9.1), terms and conditions, express or implied by statute or otherwise, including, without limitation, in relation to quality, fitness, correspondence with sample or description in relation to the Goods are hereby excluded to the fullest extent permissible by law.

9.3 All Services of an advisory nature including, without limitation, advice on markets, seed varieties or the use and application of chemicals or fertilisers are carried out by the Company with all reasonable skill and care and on the basis of best information available to the Company at the time such Services are provided. No warranty or representation of any nature is given by the Company in relation to the Services or the accuracy or completeness of information, recommendations or advice provided by the Company, its employees or agents and all warranties, terms or conditions, express or implied by statute or otherwise, are hereby excluded to the fullest extent permissible by law. 

10. LIMITATION OF LIABILITY

10.1 Subject to the provisions of Clause 8 of these Conditions, in the event that the Goods do not comply with the express terms of the contract of sale or there is a breach of the warranties contained in Clause 9.1 then the Company shall at its option, either:   

(i) replace the defective Goods free of charge to the Customer; or  

(ii) refund up to maximum of the total payments made by the Customer to the Company under the contract in respect of the defective Goods provided that notice of any defect shall have been given to the Company as soon as reasonably possible in accordance with Clause 15.1. This shall be the sole remedy of the Customer in relation to any breach of warranty or the failure of the Goods to comply with the express terms of the contract of sale.

10.2 Subject to Clause 10.6, all liability of the Company for loss or damage, direct or indirect, arising in respect of the provision of Services of an advisory nature (excluding advice on the use and application of chemicals) is hereby excluded to be fullest extent permissible by law. In relation to Services that are of an advisory nature provided by the Company in relation to the use or application of chemicals, the Company shall have no liability to the Customer in relation to such advisory Services unless it is proved that any chemical recommended by the Company for a particular purpose is not recommended by the manufacturer of such chemical for use for such purpose. Any such advisory Services are subject to the terms and conditions provided separately to the Customer in relation to agronomy advice provided by the Company.

10.3  It is acknowledged by the Company and the Customer that after the Goods have been delivered to the Customer, the Company cannot exercise any control over either the storage, handling, mixing, application and use of the Goods supplied or the weather conditions prevailing before, during and after application or use, all or any of which may affect the performance of the Goods. It is also acknowledged that failure, whether total or partial, of any crop may depend on many natural and other factors beyond the Company's control. Accordingly, the Company's liability in respect of defective Goods or Services, in contract, tort or otherwise, is strictly limited as set out in Clause 9 and this Clause

10. .4 It shall be a condition of the Company's liability hereunder that the Customer has followed strictly the instructions for use furnished to him in respect of the Goods by the manufacturer of the Goods or the Company including, without limitation instructions on storage, handling, mixing and application and has records in safekeeping to show that the Customer has done so. The Company shall have no liability as a result of the Customer's failure to produce the appropriate aforementioned records.

10.5 Subject to Clause 10.6, the Company's aggregate liability for breach of contract or the warranties contained herein or in tort (including negligence and misrepresentation) shall be limited to four times the net price paid for the Goods or Services under the contract. The Company shall be under no liability whether in contract, tort or otherwise for any loss of profit, loss of goodwill or for any other consequential loss or damage whatsoever suffered by a Customer or any other person in connection with Goods or Services supplied by the Company.

10.6 Nothing herein contained shall be deemed to exclude or restrict any liability which cannot be excluded or restricted under the provisions of any statute, including the Unfair Contract Terms Act 1977, and in particular the Company does not exclude any liability for death or personal injury resulting from the Company's negligence. 

11. CANCELLATIONS AND RETURNS

11.1 No order which has been accepted by the Company may be cancelled by the Customer and no Goods which have been supplied may be returned by the Customer to the Company (other than Goods which are proved defective under Clause 8 or 9) except with the agreement in writing of the Company and on the following terms:-   

(i) any Goods returned must be returned no more than one calendar month after the date of delivery and in any event no return of Goods will be accepted after the end of the applicable planting season;   

(ii) no Goods will be accepted for return if the Goods supplied are no longer on the Approved List of the Department for Environment, Food and Rural Affairs as at the date of return;   

(iii) no Goods will be accepted by the Company as returned Goods unless the Goods are in their original packaging unopened and in undamaged condition; and      

(iv) in all cases where an order is cancelled by the Customer or Goods are returned by the Customer, the Customer shall pay the Company a handling charge of 10% of the invoiced price. 

12. INDEMNITY 12.1 

The Customer shall indemnify and hold the Company harmless against any liability arising as a result of actions, claims or demands by third parties whether arising in contract, from breach of statutory duty or in tort (including negligence) or otherwise howsoever arising either directly or indirectly from:-

(i) the use of the Goods or Services supplied by the Company other than in accordance with the manufacturers or the Company's instructions or in breach of Clause 17; or   

(ii) any failure by the Customer to obtain any permissions, consents or licences which may be necessary for use of, or possession of, the Goods. 

13. FORCE MAJEURE

13.1 The Company shall not be responsible for failure to perform its obligations under a contract for the sale of Goods or Services occasioned by any act beyond the reasonable control of the Company including, without limitation, act of God, act of terrorism, war, adverse weather, action by Government or Government authority whether at Port, Local, National or European Union level, strike-out, combination of workman accident or breakdown of plant or machinery, power failure, crop failure or fire (a 'Force Majeure Event') provided that the Company dispatches written notice to the Customer within 7 consecutive days of its knowledge of the occurrence. If the Force Majeure Event continues for more than 30 consecutive days, the Customer shall have the option of cancelling the unperformed portion of the contract if the subject Goods are not already in course of transit by giving to the Company written notice to that effect but shall not be entitled to any compensation in respect of such cancellation. A further extension of 30 days may be mutually agreed if requested by the Company. If performance under this Clause be prevented during the extension period the contract or any unfulfilled part thereof shall be cancelled. The Customer shall have no claim against the Company for non-performance or otherwise under this Clause. 

14. INSOLVENCY

14.1 If the Customer:      

(i) has a receiver or liquidator appointed to any of his property or business undertaking or has a    petition for an administration order in respect of the property or business undertaking presented to the High Court;      

(ii) announces that it is ceasing to trade;      

(iii) fails to make payment as due, suspends payments and/or notifies any of its creditors that it is unable to meet debts or that it is about to suspend payment of its debts;      

(iv) convenes, calls or holds a meeting of creditors;      

(v) being an individual trader, becomes bankrupt or makes any composition or scheme of arrangement with his creditors; and/or      

(vi) being a body corporate, convenes calls or holds any meeting for the purpose of going into liquidation other than for the purpose of reconstruction or amalgamation by the making of an order or the passing of a resolution for winding up then the provisions of clauses 14.2 and 14.3 shall apply.

14.2 In the circumstances set out in Clause 14.1, notwithstanding any previous arrangements with the Company for deferred payments the full remaining price for any Goods delivered or Services supplied by the Company shall become immediately payable.

14.3 The Company shall have the right, without prejudice to any rights and remedies available, to cancel and/or suspend or to refuse to accept any further deliveries and/or terminate the contract at any time after becoming aware of any circumstances listed in Clause

14.1, provided that when exercising any of the above rights, the Company shall inform the Customer in writing of its intention to exercise such right or rights within 28 days of the relevant occurrence. 14.4 Whenever any of the rights set out in this clause 14 are exercised by the Company then the Company will not be liable to pay any compensation to the Customer in respect of such exercise. 

15. DISPUTE RESOLUTION  General

15.1 Subject to Clause 8, all claims relating to the supply of Goods or Services by the Company must be notified by the Customer to the Company in writing immediately when the Customer became aware of the subject matter of such a claim or should reasonably have been so aware and no claim may be made unless thereafter a reasonable opportunity is given to the Company, its employees or agents to carry out such inspections and/or investigations in relation to the said claim which the Company reasonably regards as necessary or desirable. Additionally the Company, its employees or agents will not be liable in respect of any claim unless the Customer has taken every opportunity to minimise such a claim. Subject to the provisions of Clause 8, arbitration proceedings must be claimed within 90 days from the last day of the contract. The Company shall have no liability in relation to any claim not made within the time limits set out above. 

15.2 Any dispute which remains unresolved (other than a claim for an unpaid debt which shall be dealt with in the courts) shall be referred for settlement by arbitration in England under the rules of the Agricultural Industries Confederation (AIC) of which all the parties shall be deemed to have knowledge. 

15.3 If in any dispute between the parties subject to arbitration it is reasonably apparent to either party that the manufacturer of the Goods supplied which are the subject matter of the arbitration should be a party to the proceedings, then the arbitration proceedings shall be stayed to enable Court proceedings to be taken with the manufacturer as a party.

15.4 These Conditions and any contracts with Customers are governed by the laws of England and Wales and in respect of all disputes arising from the contract (save those which are to be referred to arbitration in accordance with the provisions of this Clause) the parties agree to submit to the jurisdiction of the Courts of England and Wales.  Quality Claims

15.5 The Company reserves the right to demand samples of any Goods in relation to which the Customer is making a quality claim, whether pursuant to Clause 10, Clause 9 or otherwise. The Company and the Customer shall jointly appoint an independent person to be the official analyst for the purpose of the contract who shall act as an expert and not as an arbitrator. If the Customer and the Company are unable to agree on the identity of the independent expert such expert shall be appointed by AIC. The results of such analysis shall be final and binding on the Company and the Customer. The costs of the independent expert shall be borne by the Customer in cases where no quality claim is payable, but by the Company if the Customer is entitled to a quality claim.  

16.  CUSTOMER''S DUTY TO APPLY CORRECTLY

16.1 All directions, warnings, or notices as to applying, sowing or otherwise using the Goods contained on or in the Goods supplied to the Customer by the Company or the manufacturer are to be complied with by the Customer in applying sowing or otherwise using the Goods. The Company will accept no liability whatsoever for damage or loss suffered thereby whether direct or indirect where the Customer fails to comply with such instructions, warnings or notices.

16.2 Where the Goods supplied to the Customer by the Company contain any recommendations, instructions or directions as to methods of storage or in any other case where the horticultural and/or agricultural industries recognise and recommend certain means of storage for such Goods, failure to comply with such recommendations, instructions or directions in respect of the Goods supplied will absolve the Company from all liability whatsoever in respect of damage or loss suffered by the Customer whether direct or indirect.

17.  APPLICATION OF PRODUCTS

17.1 Where products, such as crop protection products or fertiliser ('Products'), are to be applied to the Customer's site by the Company or the Company's agents or sub-contractors, the Customer shall be responsible for indicating to the Company's employee, agent or sub-contractor the area to be treated immediately prior to the commencement of the application. 

17.2 The Customer shall inform the Company's employee, agent or sub-contractor of any matters known to the Customer calling for special care or attention when applying any Product and shall indemnify and hold the Company harmless in respect of all actions, costs, claims and demands arising from damage resulting from the application arising as a result of failure by the Customer to inform the Company's employee, agent or sub-contractor of any such matters in accordance with the provisions in this Clause.

17.3 The liability of the Company in relation to the application of Products at a Customer's site is limited to the amount paid by the Customer to the Company for the application of the Product. The Company shall be under no liability whether in contract, tort (including negligence) or otherwise for any loss of profit or for any other consequential loss or damage whatsoever suffered by a Customer or any other party in connection with application of any Products by the Company to the Customer's site. 

18. CONDITIONS OF HIRE 

18.1 When sprayers, granular applicators or other equipment ('Equipment') is hired from the Company, in addition to such conditions of hire as shall apply to such hire, whether in these conditions or elsewhere, the Customer warrants that all materials used through such Equipment shall be purchased from the Company whether they are of the Company's manufacture or brand or not and further undertakes that all such Equipment will be used by qualified personnel and that it will be responsible for the notification of any faulty safety Equipment to the Company. The Customer acknowledges and agrees that

(i) the Company is not the designer or manufacturer of the Equipment and therefore gives no warranty, whether expressed or implied, in relation to the Equipment including without limitation the absence of defects in, of the fitness for the purpose of, the Equipment; and

(ii) all liability of the Company arising in connection with the Equipment is hereby excluded to the fullest extent permitted by law. 

19.  DATA PROTECTION

19.1  The Company may hold personal data about you and your business. These details may be retained and shared with other associated companies and joint venture entities in which it holds an interest. Some administrative activities may be carried out by third parties who may be provided with any information the Company holds about you and your business. In particular, you should note that the Company may from time to time pass details including account conduct data to credit reference agencies, insurance companies and Bankers as part of their credit approval process and that they may retain a record of that and share information with other users. The Company may from time to time use your data to send you details about services and products, offers or promotions, which may be of interest to you. If you do not wish to receive this information please notify us in writing. 

20. SEVERABILITY

20.1 If these conditions shall be or become void in whole or in part, the other provisions shall remain valid and enforceable. 

21. RIGHT TO ASSIGN THE CONTRACT

21.1 The contract is entered into between the Company and the Customer as principals and the Customer shall not be entitled to assign the benefit or burden of it or with any interest in it without the prior written consent of the Company. The Company shall be able to sub-contract the whole or part of its obligation under the contract and to assign its interest in the contract.

22. THIRD PARTIES

22.1 A person who is not a party to the contract (a 'third party') shall have no rights pursuant to the Contract (Rights of Third Parties) Act 1999 (the 'Act') to enforce any of these conditions. Any right or remedy of a third party which exists or is available apart from the Act is not affected. 

23. EXERCISING ANY RIGHT OF REMEDY 

23.1 A failure by the Company to exercise, or a delay in exercising, any right of remedy under this contract shall not constitute a waiver of the right or remedy or a waiver of any other right or remedies which the Company may otherwise have and no single or partial exercise of any right or remedy under this contract shall prevent any further exercise of any right or remedy or the exercise of any other right or remedy. Equally, any waiver by the Company of a breach of any of the terms of this contract or of any default under this contract shall not be deemed a waiver by the seller of any subsequent breach or default and shall not affect the other terms of this contract. 

24. NOTICES

24.1 Any notice hereunder shall be in a permanent readable form and shall be deemed properly given if addressed to the party concerned at its principal place of business or last known address. 

B. SPECIAL CONDITIONS OF SALE FOR SEED  S1. SPECIAL CONDITIONS FOR THE SUPPLY OF SEEDS 

S1.1 In the event of a contract for the supply of seeds the Company's Conditions will apply except insofar as such Conditions conflict with the items of the Special Conditions contained in Clauses S1 to S8 of the Conditions or do not address any issue provided for in the Special Conditions in which event the said Special Conditions will apply. 

S2.  AVAILABILITY

S2.1 The supply of United Kingdom grown seeds is subject to harvest and the Company reserves the right in the event of market shortages to apportion such supplies as become available amongst its customers at its sole discretion. In the event that the Company's production contracts with third parties do not produce sufficient quantities of the required quality of seed of the contract description to meet customer's requirements, the Company shall not be under an obligation to purchase such seed from alternative sources of supply. All seeds grown abroad are booked subject to the safe arrival and correct delivery of the relevant contract. 

S3. RETAIL SUBSTITUTION

S3.1 In accordance with usual trade practice the Company reserves the right in the event that the variety ordered is not available to substitute a suitable alternative variety. If the substituted variety is not acceptable to the Customer then the Customer must return it unopened to the Company within 14 days of receipt. The price paid and transport costs will be refunded in full to the Customer by the Company. In that event the contract between the parties will then be deemed to be cancelled without any further liability to either party. 

S4.  PLANT VARIETIES AND SEEDS ACT 1964 (AS AMENDED)

S4.1 The price of any variety which becomes the subject of a grant of breeders' rights under the Plant Varieties and Seed Act 1964 (as amended) will be adjusted to include the cost of any royalty payable to the owner of the right. If in the case of a variety which is already the subject of plant breeders' rights there is any change of rate of loyalty payable to the owner of the rights will be adjusted accordingly.

S5.  PERFORMANCE DISPUTES

S5.1 No complaint relating to the supply of seed by the Company can be considered unless the Customer can provide clear proof that the seed grown and alleged to have performed unsatisfactorily was in fact the seed supplied and that it was sown on pre-prepared ground treated carefully and correctly throughout and subject only to such conditions that were likely to produce a favourable crop. Any complaint relating to the performance of seed supplied by the Company must be made in accordance with Clause 15.1 of the Conditions and confirmed in writing by recorded delivery as soon as reasonably practicable.

S5.2 Any dispute under a Contract involving a seed grower in the United Kingdom shall be referred to arbitration in accordance with the rules agreed between the AIC and the NFU. 

S6.  SEED TREATMENT AND TESTING

S6.1 Where the Customer requests any treatment whether chemical or otherwise is applied to the seed the Company's only duty shall be to ensure that such treatment is carried out in accordance with the instructions given by the manufacturer of the chemical in question and the Company accepts no responsibility whatsoever for the effectiveness of such treatment or for any liability, loss or damage, direct or consequential, which may result from such treatment.

S6.2 Where the seeds have been treated with a liquid or powder to control pest or diseases or have been fumigated or pelleted, the purity and germination percentages are based on tests made before the treatment. 

S7. REPRODUCTION

S7.1 Seed is offered and sold for the production of consumer crops only and the Company accepts no responsibility or liability for any seeds produced by the Customer through reproduction. 

S8. STANDARDS

S8.1 All information whether contained in the Company's catalogue, other documentation of the Company or given by staff relating to varieties, varietal characteristics or periods of maturity or fitness for any particular purpose or otherwise relating to the performance of seeds is given for general guidance only as variations in local or climactic conditions can render such information inaccurate and all liability of the Company in relation to such information is hereby excluded. 

S9. ADVENTITIOUS CONTAMINATION

S9.1 This clause applies to the sale of rapeseed only and references to seed herein are references to rapeseed. The Company seeks assurances from seed breeders and from third party seed processors from whom the Company purchases pre-processed seed that appropriate controls are in place and that seed has been tested by a reputable laboratory for the adventitious presence of genetically engineered organisms. Seed processed by the Company is also so tested by a reputable laboratory prior to processing. Test results and further information on testing procedures and levels are held by the Company.

S9.2 In respect of any seed, no guarantee, warranty or assurance can be given of the absence of organisms produced as a result of genetic engineering as seed is field grown and Europe is not a genetic engineering free environment. Testing does not guarantee an absence of genetically engineered organisms and only gives comfort that the levels on the sample tested of those particular genetically engineered organisms which are tested for, using particular methods, are as set out on the test certificate. Accordingly, no liability for loss or damage is accepted by the Company as a result of contamination of seed with genetically engineered organisms.