Terms & Conditions of Business. © Buzzy Seeds UK Ltd 2010. 1. DEFINITIONS The terms 'the Company', 'we', 'us', 'our', and 'ours' refer to Buzzy Seeds UK Limited. The terms 'you', 'your', and 'yours' refer to the Customer. "Acceptance Document" means a document or other communication issued by us to indicate our acceptance under these Terms of your request for Products. "Agreement" means the legally binding contract which is made between you and us in respect of an Order. "Consumer Supplies" means the supply of Products directly to consumers in accordance with a particular campaign, promotion, advertisement, or series of advertisements. "Customer" means the person, firm or corporation identified as such on a relevant Acceptance Document or in an Order. "Default" means any act, statement, omission, or negligence on the part of us or you in connection with, or in relation to, the subject matter of an Agreement in respect of which you and us are legally bound to each other, or to any third party, whether in contract or in tort. A number of Defaults which together result in, or contribute to, substantially the same loss or damage shall be treated as one Default occurring on the date of the occurrence of the last such Default. "Delivery" means the process by which Products are transferred by us to you. "Order" means a request for specific Products placed by you and accepted by us either by the delivery of Products or by the issue of an Acceptance Document. "Products" means any goods provided by us to you, including but not limited to, seed packs, seed mats, grow-your-own kits, plants, shrubs, saplings, promotional materials, and other horticultural products "Quotation" means the document in which we set out the details of a prospective Order including specification of Products, method and estimated time of Delivery, prices, and any other relevant terms and conditions. "Terms" means these standard terms and conditions of business, as revised from time to time. Nothing in any Agreement shall affect the statutory rights of a consumer. 2. INTRODUCTION AND ENTIRE AGREEMENT 2.1 When an Agreement is made, the Terms and any terms in the Quotation and/or the Acceptance Document exclusively govern the supply of Products and by us to you, and constitute the entire Agreement in respect of the subject matter thereof and shall supersede all representations, proposals, or prior agreements, oral or written, and all other communications between the parties relating thereto, and regardless of any other additional contract terms stated or referred to in your request or otherwise sought to be applied by you in that request. 2.2 The Terms, as revised from time to time, will remain in effect for all future Orders. 2.3 In the event of any conflict in terms, the following order of precedence shall apply; firstly the Acceptance Document, then the Quotation, then the Terms. 3. INDEPENDENT CONTRACTOR The relationship between us and you is that of independent contractor. Neither we nor you is the agent of the other and neither party has any authority to make any contract or make any obligation, express or implied, in the name of the other party. 4. REPRESENTATIONS Our employees or agents are not authorised to make any representations concerning Products unless confirmed in writing by us. In entering into the Agreement, you acknowledge that you do not rely on, and waive any claim for breach of, any such representations which are not so confirmed. 5. PLACING OF ORDERS 5.1 Your requirements for Products will normally be placed in writing, quoting an official order number, and be duly signed by your authorised representative. 5.2 On certain Products we may stipulate that Orders are subject to a minimum order quantity which shall be specified in our Quotation. 5.3 In respect of Consumer Supplies, the receipt of the appropriate duly completed coupon or voucher shall constitute a separate Order. In situations where we are receiving payment direct from a consumer, we will complete the Order as your agent notwithstanding that no payment shall be due to you in respect of any such Orders. Where we are not receiving payment direct from a consumer, we shall prepare a monthly schedule of Orders processed and raise an invoice on an agreed basis for the amount payable by you to us in respect of such Orders. 6. ACCEPTANCE OF ORDERS We will indicate acceptance of your request for Products by issuing an Acceptance Document to you, which shall be evidence of the Agreement under these Terms, or by making Delivery of the Products which are the subject of such request. 7. CANCELLATION OR MODIFICATION OF ORDERS We shall not be bound to accept any request by you to cancel or modify any Order but, in the event that we do agree to accept any such request, you may be liable to a reasonable administration charge and you will indemnify us against all loss, costs, damages, charges and expenses arising out of the cancellation or modification of the Order. 8. SPECIFICATION OF PRODUCTS 8.1 Unless otherwise agreed, the Products are supplied in accordance with the manufacturer's/suppliers standard specifications as these may be improved, substituted or modified. 8.2 Where Products are to be supplied to your design and/or specification, full details will be set out in our Quotation and/or your purchase order. Where artwork, design, or layout is required for promotional materials or packaging, we shall accept no responsibility for any errors or omissions in any such artwork supplied by you and you shall remain fully liable to make due payment to us in respect of any relevant Order notwithstanding any such errors or omissions. 8.3 Where artwork, design, or layout is required for promotional materials or packaging, and you request that we shall be responsible for any relevant design, layout, or artwork, we shall accept no responsibility for any errors or omissions in any such design, layout or artwork where you have approved a final design proof prior in advance; you shall remain fully liable to make due payment to us in respect of any relevant Order notwithstanding any such errors or omissions. 9. DELIVERY 9.1 Delivery of the Products shall be made by us, or our appointed agent, to your designated address for Delivery, or by you, or your appointed agent, upon collecting the Products from our premises. For Consumer Supplies we shall despatch Products to the consumer?s designated delivery address by appropriate means. 9.2 Delivery shall be complete when you, or your appointed agent, have signed the requisite Delivery documentation or, in the case of Consumer Supplies: 9.2.1 where Royal Mail ?unsigned for? delivery services are used, three days after despatch; 9.2.2 where Royal Mail ?signed for? delivery services are used, when signed for by the recipient; 9.2.3 where courier services are used, when signed for by the recipient. 9.3 Any dates quoted for Delivery of Products are approximate only and may be delayed or postponed due to circumstances beyond our reasonable control. In no event shall we be liable for any damages or penalty for delays in Delivery. For Consumer Supplies, we normally expect to despatch Products within 28 days of receiving the relevant coupon or voucher. 9.4 We will, at our discretion, and unless instructed by you otherwise, make partial Delivery of Products against any Order. In such circumstances, you undertake that any invoice raised in respect of any such partial Delivery will be paid in accordance with normal settlement terms, irrespective of the time of Delivery of the remainder of the Products covered by the Order. 9.5 Where Products are delivered in instalments, each Delivery shall constitute a separate contract and any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and you shall be bound to accept Delivery thereof. 9.6 Where, due to circumstances beyond our control, we are unable to complete Delivery of the balance of any Order against which partial Delivery may have been made, we shall be at liberty, having given you due notice of our intention to do so, to terminate the contract in respect of the balance of the Order without prejudicing the validity of the contract(s) relating to the Delivery of Products already completed against that Order. We shall not be liable to you for any loss or damage in the event that we elect to terminate the contract in relation to the balance of any Order in such circumstances. 9.7 If Products are damaged in transit you must notify us and, where relevant, any third party carrier, within two working days of receipt of Products. All packaging and contents must be held by you for inspection. 9.8 If Products have not been received, you must notify us within seven days of the date of the invoice relating to the Delivery. If proof of Delivery is required, this must be requested within fourteen days of the date of the invoice relating to the Delivery. 10. PRICES 10.1 Prices for Products shall be charged in accordance with our relevant Quotation or, in the case of Consumer Supplies, as published in the relevant campaign or advertisement, or as otherwise agreed. 10.2 Unless otherwise specified, all prices given by us are exclusive of carriage, packing and insurance for which additional charges may be made to you or, in the case of Consumer Supplies, to consumers. 10.3 All prices are exclusive of Value Added Tax and any similar taxes. All such taxes shall, if applicable, be payable by you, or, in the case of agency sales, by consumers and will be applied at the prevailing rates at the tax point date. 10.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, Acceptance Document, invoice or any other document or information issued by us shall be subject to correction without any liability on our part. 11. PAYMENT 11.1 We will raise an invoice on, or immediately after, the date of despatch of Products, or at the end of a calendar month for Products despatched during that month, or as otherwise agreed. If you have been granted an approved credit account with us, payment shall become due from you within thirty days of the invoice date or as otherwise specified in writing by us. If you have not been granted an approved credit account with us, payment shall be made either in advance of Delivery of Products or upon completion of Delivery of Products or within such other time frame as we may determine and agree with you. The time of payment shall be the essence of the Agreement. 11.2 If you fail to make payment by the due date, other than by reason of a valid dispute, then, without prejudice to any other right or remedy available to us, we shall be entitled to:- 11.2.1 cancel the Agreement, or suspend Delivery of further Products to you until we receive payment; and 11.2.2 charge to you all costs of collection together with interest on all unpaid amounts, before and after judgement until fully paid, calculated at the rate of 4% per annum above the base lending rate then current of Bank of Scotland. Such interest shall accrue on a daily basis and be payable on demand. 12. TITLE 12.1 Subject to the proprietary rights of third parties, title to all Products supplied by us shall only pass once we have received full payment for them. 12.2 Until such time as title to the Products passes to you, and provided the Products are still in existence, we shall be entitled, in the event that you are in Default, to require you to deliver up the Products to us upon demand. 13. RISK The risk of loss of, or damage to, Products supplied by us to you under any Agreement shall pass to you once Delivery has been completed. 14. WARRANTY 14.1 Subject as may be expressly provided in these Terms, and except where the Customer is a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. 14.2 Where the Products are sold under a consumer transaction, the statutory rights of the Customer are not affected by these Terms. 15. RETURNS 15.1 Return of Products that have been correctly supplied by us to you in accordance with your Order will not normally be accepted. 15.2 Return of any Products, whether correctly or incorrectly supplied, or whether faulty or damaged, may only be made with our prior written authorisation. 15.3 We will normally only consider any request by you for a returns authorisation if this is made within ten working days of the date of the invoice. 15.4 Any returns authorisations given by us shall be valid for ten working days from the date of issue. Products which are the subject of a returns authorisation which has time expired may only be returned subject to the issue of a new returns authorisation which will be given at our absolute discretion. 15.5 We reserve the right to charge you for handling and administration in respect of any Products that are accepted for return which have been correctly supplied to you by us. 16. INTELLECTUAL PROPERTY RIGHTS 16.1 Subject to any pre-existing rights of any third party, any and all intellectual property rights in or with respect to any process or system developed or provided by us to facilitate the fulfilment of our obligations to you under any Agreement shall belong to and remain with us. 16.2 In the event that any claim is made against you by reason of any Products supplied by us having infringed a patent, design registration, design right in original designs, moral right, copyright or any other intellectual property right effective in the United Kingdom, we shall indemnify and defend you, and your employees against all loss, damages, costs and expenses awarded against or agreed to be paid by you in settlement of the claim provided that you:- 16.2.1 promptly notify us in writing of any such claim; and 16.2.2 give us full control of any proceedings or negotiations in connection with any such claim; and 16.2.3 except pursuant to a final award, undertake not to pay or accept any such claim, or compromise without our consent, such consent not to be unreasonably withheld; and 16.2.4 undertake not to do anything which might vitiate any policy of insurance which you may have in relation to such infringement (this indemnity shall not apply to the extent that you recover any sums under such policy, which you shall use your best endeavours to do); and 16.2.5 without prejudice to any of your duties at common law, takes, at our expense, such steps as we may reasonably require to mitigate or reduce any loss, damages, costs or expenses for which we are liable to indemnify you under this clause. 16.3 We shall not be required to indemnify you, nor be held liable to any third party, for the infringement of any patent, design registration, design right in original designs, moral right, copyright or any other intellectual property right effective in the United Kingdom if this is caused by any Default on your part. 17. TERMINATION FOR CAUSE 17.1 Notwithstanding any provisions contained elsewhere in these Terms or in any Acceptance Document, any or all Agreements may be summarily terminated by written notice: 17.1.1 By us if you fail to pay any sums due hereunder by the due date; 17.1.2 By either party if the other is in breach of any provision hereunder and remains in breach thirty days after receipt of written notice, and a request to remedy, the breach; 17.1.3 By either party if the other ceases to trade, or 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, other than for the purposes of amalgamation or reconstruction, or has a Receiver or Manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of current insolvency laws. 17.2 Any termination pursuant to this clause shall be without prejudice to any other rights or remedies either party may be entitled to hereunder or at law. 18. LIABILITY FOR LOSS AND DAMAGE 18.1 We shall not be liable for any loss or damage or for failure to perform our obligations hereunder if this arises as a result of a failure by you to fulfil any of your obligations hereunder. 18.2 We shall not be liable for any loss or damage or for failure to meet our obligations hereunder if this arises as a result of reliance upon any written information provided by you, or your authorised representative, if such information is inaccurate or incomplete, unless you advise us that this is the case at the time the information is provided. 18.3 We shall indemnify you for direct physical injury or death caused solely by the negligent acts of our employees or authorised representatives acting within the course of their engagement and the scope of their authority. 18.4 We shall indemnify you for direct damage to property caused solely by the negligent acts of our employees or authorised representatives acting within the course of their engagement and the scope of their authority. Our total liability under this sub-clause shall be limited to £1,000,000 for any one event or series of connected events. 18.5 Neither party shall be liable to the other, whether in contract, tort, or otherwise, for any consequential or indirect loss or damage, howsoever arising, and of whatever nature, including, but not limited to, loss of profit or loss of contracts, suffered or incurred directly or indirectly by either party except as otherwise provided in these Terms. 19. FORCE MAJEURE Neither party shall be responsible for failure to fulfil its obligations hereunder to the extent that this is due to acts of God, war, insurrection, government regulations, embargoes, strikes, labour disputes, illness, fire, explosion, flood, tempest or any other cause beyond its reasonable control. 20. COMMERCIAL CONFIDENTIALITY 20.1 Each party undertakes, throughout the term of any Agreement, and for a period of two years thereafter, not, without the express written consent of the other, to disclose, except on a need to know basis, any trade secrets, or other matters identified by the other as confidential. Each party undertakes that it will make known to any of its personnel, and other such contractors to whom it is disclosed, its confidential nature. 20.2 These obligations of confidentiality shall survive any termination or expiration of any Agreement but shall cease to apply to matters after they become public knowledge unless by reason of the Default of either party. 21. WAIVER Failure by either party to enforce any of its rights hereunder shall not be construed as a waiver of such rights. If either party does waive any of its rights in relation to a breach of any Agreement, such waiver shall not be construed as a waiver in respect of any other breach. 22. SEVERABILITY If any provisions or portions of any Agreement shall be held to be invalid, illegal, or unenforceable, or shall be required to be modified, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. 23. VARIATION No amendment, or modification of, or waiver to, any Agreement shall be binding unless made in writing and signed by an officer of the Company and an authorised official of the Customer. 24. NOTICES Any notices required to be given under these Terms shall be valid and sufficient if delivered to the address of the parties stated in any Agreement, either by hand or by registered mail, or recorded delivery, or by first class mail, postage prepaid, in which case the notice will be deemed to have been served five working days after posting. 25. GOVERNING LAW AND STATUTES 25.1 All Agreements shall in all respects be governed by, and be construed in accordance with, English Law. 25.2 Any reference in these Terms to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.