TERMS AND CONDITIONS
Spring Assortment 2022
TERMS AND CONDITIONS
The customer's attention is drawn in particular to
the provisions of clause 9.
1.1 Definitions. In these Conditions, the following definitions
Business Day: a day (other than a Saturday, Sunday or public
holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document
as amended from time to time in accordance with clause 13.6.
Contract: the contract between the Supplier and the Customer
for the sale and purchase of the Goods in accordance with these
Customer: the person or firm who purchases the Goods from
Force Majeure Event: has the meaning given in clause 12.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods, as provided to the
supplier in whatever format by the customer.
Supplier: Volmary Limited (registered in England and Wales with
company number 02466472), or any subsequent change of name
of the company.
1.2 Construction. In these Conditions, the following rules
(a) A person includes a natural person, corporate or
unincorporated body (whether or not having separate legal
(b) A reference to a party includes its personal representatives,
successors or permitted assigns.
(c) Any phrase introduced by the terms including, include,
in particular or any similar expression shall be construed as
illustrative and shall not limit the sense of the words preceding
(d) A reference to writing or written includes faxes and emails.
2. Basis of Contract
2.1 These Conditions apply to the Contract to the exclusion of
any other terms that the Customer seeks to impose or incorporate,
or which are implied by trade, custom, practice or course of
2.2 The Order constitutes an offer by the Customer to purchase
the Goods in accordance with these Conditions. The Order
shall only be deemed to be accepted when the Supplier issues
a written acceptance of the Order, at which point the Contract
shall come into existence. Each Order shall constitute a separate
2.3 The Contract constitutes the entire agreement between the
parties. The Customer acknowledges that it has not relied on any
statement, promise, representation, assurance or warranty made
or given by or on behalf of the Supplier which is not set out in the
2.4 Any samples, drawings, descriptive matter, or advertising
produced by the Supplier and any descriptions or illustrations
contained in the Supplier’s catalogues or brochures are produced
for the sole purpose of giving an approximate idea of the Goods
described in them. They shall not form part of the Contract or have
any contractual force.
3.1 The Goods are described in the Supplier’s catalogue and/
or Order. In the event that the Goods specified in the Order are
not available on the date of dispatch, the Supplier may substitute
3.2 Varieties of Goods listed with the suffix “(p)” are protected
by the plant breeders’ rights (Protected Plants) set out within
the Plant Varieties and Seeds Act 1964 and the Plant Varieties
Act 1997 (the Plant Acts) and are subject to a royalty. Placing an
Order for these Protected Plants constitutes an acceptance by the
Customer of the conditions of the plant breeders’ rights scheme
and the Plant Acts, which includes the requirement of a direct
licence with the plant breeder in order to propagate, import or
export or sell. Additionally, the relevant plant breeder has the right
to inspect your premises and/or your accounts to verify that no
unauthorised activities have taken place.
3.3 The Customer shall indemnify the Supplier against all claims,
proceedings and losses suffered by the Supplier in relation to any
breach by the Customer of clause 3.2.
4.1 The Supplier shall deliver the Goods to the location set
out in the Order or such other location as the parties may agree
(Delivery Location) at any time after the Supplier notifies the
Customer that the Goods are ready or the Customer shall collect
the Goods from the Supplier’s premises (Delivery Location)
within 3 Business Days of the Supplier notifying the Customer that
the Goods are ready to be collected.
4.2 Any dates quoted for delivery are approximate only, and
the time of delivery is not of the essence. The Supplier shall not
be liable for any delay in delivery of the Goods that is caused
by a Force Majeure Event or the Customer’s failure to provide
the Supplier with adequate delivery instructions or any other
instructions that are relevant to the supply of the Goods.
4.3 If the Supplier fails to deliver the Goods, its sole liability shall
be limited to the costs and expenses incurred by the Customer in
obtaining replacement goods of the same variety, tray format and
specification in the cheapest market available, less the price of the
4.4 If the Customer fails to take delivery of the Goods within
three Business Days of the Supplier notifying the Customer that
the Goods are ready, then, except where such failure or delay
is caused by a Force Majeure Event or the Supplier’s failure to
comply with its obligations under the Contract, the Supplier may
resell or otherwise dispose of part or all of the Goods.
4.5 The Supplier 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 the Customer to cancel any other
4.6 The Customer shall verify and inspect the Goods as soon
as reasonably practicable upon receipt and in any event within
three (3) days. Depending on the size of the delivery, verification/
inspections may take place through random sampling of a
sufficient quantity of Goods.
4.7 The Customer’s obligation to inspect the Goods and report
any defects also includes to phytosanitary properties, including
viruses, infestations and diseases. If the Customer suspects the
presence of such phytosanitary properties, it shall comply with
5.1 The Supplier warrants that on delivery, the Goods shall:
(a) conform in all material respects with their description;
(b) be free from material defects, including disease and/or
(c) be of satisfactory quality (within the meaning of the Sale of
Goods Act 1979).
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier within a
three days of discovery, or the period set out in cause 5.4 below in
respect of diseased and/or infection, that some or all of the Goods
do not comply with the warranty set out in clause 5.1; and
(b) the Supplier is given a reasonable opportunity of examining
such Goods, the Supplier shall, at its option, replace the defective
Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for Goods’ failure to comply
with the warranty set out in clause 5.1 in any of the following
(a) the Customer makes any further use of such Goods after
giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow
the Supplier’s oral or written instructions as to the storage, use
and maintenance of the Goods or (if there are none) good trade
practice regarding the same; or
(c) the defect arises as a result of fair wear and tear, wilful
damage, negligence, or abnormal storage conditions or
inappropriate growing techniques used by the Customer.
5.4 In the event that the Customer discovers or suspects, or
should have reasonably discovered or suspected that the Goods
are diseased and/ or infected, the Customer shall immediately
notify the Supplier in writing, and in any event such notification
must be within one (1) month of delivery of the Goods, and shall
take steps to prevent the spread of the disease and/or infection,
such as separating diseased and/or infected Goods to avoid crosscontamination
prior to inspection of the Goods by the Supplier.
5.5 Except as provided in this clause 5, the Supplier shall have no
liability to the Customer in respect of the Goods’ failure to comply
with the warranty set out in clause 5.1.
5.6 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
5.7 These Conditions shall apply to any repaired or replacement
Goods supplied by the Supplier.
6. Title and Risk
6.1 The risk in the Goods shall pass to the Customer on
completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the
(a) the Supplier receives payment in full (in cash or cleared
funds) for the Goods; and
(b) the Customer resells the Goods, in which case title to the
Goods shall pass to the Customer at the time specified in clause
6.3 Until title to the Goods has passed to the Customer, the
(a) store the Goods separately from all other goods held by the
Customer so that they remain readily identifiable as the Supplier’s
(b) not remove, deface or obscure any identifying mark or
packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition;
(d) notify the Supplier immediately if it becomes subject to any
of the events listed in clause 8.2; and
(e) give the Supplier such information relating to the Goods as
the Supplier may require from time to time.
6.4 The parties agree that, notwithstanding the nature of the
Goods that mean that the Goods may be planted, grown, or the
Customer may add value to it, title shall belong to the Supplier in
accordance with the provisions of this clause 6, unless the Goods
have changed materially in nature.
6.5 Subject to clause 6.6, the Customer may resell or use the
Goods in the ordinary course of its business (but not otherwise)
before the Supplier receives payment for the Goods. However, if
the Customer resells the Goods before that time title to the Goods
shall pass from the Supplier to the Customer immediately before
the time at which resale by the Customer occurs.
6.6 If before title to the Goods passes to the Customer the
Customer becomes subject to any of the events listed in clause
8.2, then, without limiting any other right or remedy the Supplier
(a) the Customer’s right to resell the Goods or use them in the
ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession
which have not been resold, or irrevocably incorporated into
another product; and
(ii) if the Customer fails to do so promptly, enter any premises
of the Customer 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,
subject to any errors or omissions, or, if no price is quoted, the
price set out in the Supplier’s published price list in force as at the
date of delivery.
7.2 The Supplier adds a 10% credit charge to all orders, unless
agreed in writing. This may be deducted if payment is made
within the terms set out in clause 7.6.
7.3 The Supplier may, by giving notice to the Customer 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 the Supplier’s control including but not
limited to foreign exchange fluctuations of 5% or more, increases
in taxes and duties, any increase in any royalty payable under the
Varieties and Seeds Act 1964 or any statutory modification or reenactment
thereof for the time being in force;
(b) any request by the Customer to change the delivery date(s),
quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Customer or
failure of the Customer to give the Supplier adequate or accurate
information or instructions;
(d) any factors beyond the Supplier’s control as a result of any
legislation rising from Brexit which increases the Supplier’s cost.
7.4 The price of the Goods is exclusive of amounts in respect of
value added tax (VAT). The Customer shall, on receipt of a valid
VAT invoice from the Supplier, pay to the Supplier such additional
amounts in respect of VAT as are chargeable on the supply of the
7.5 The Supplier may invoice the Customer for the Goods in
accordance with the Order.
7.6 Unless otherwise agreed in writing, the Customer shall pay
the invoice in full and in cleared funds within 28 Business Days
of the date of the invoice. Payment shall be made to the bank
account nominated in writing by the Supplier. Time of payment
is of the essence.
7.7 If the Customer fails to make any payment due to the
Supplier under the Contract by the due date for payment, then
the Supplier reserves the right to require the Customer to pay
interest on the overdue amount at the rate of 2% per month
above Santander Bank UK PLC’s base rate from time to time.
Such interest shall accrue on a daily basis from the due date until
actual payment of the overdue amount, whether before or after
judgment. The Customer shall pay the interest together with the
7.8 The Customer shall pay all amounts due under the Contract
in full without any set-off, counterclaim, deduction or withholding
(except for any deduction or withholding required by law or as
agreed in writing). The Supplier may at any time, without limiting
any other rights or remedies it may have, set off any amount
owing to it by the Customer against any amount payable by the
Supplier to the Customer.
7.9 The Supplier may suspend delivery of the Goods in the
event that the Customer fails to make any payment due to the
Supplier under this or any other contract between the Supplier
and the Customer.
8. Termination and Suspension
8.1 If the Customer becomes subject to any of the events listed
in clause 8.2, the Supplier may suspend or terminate the Contract
with immediate effect by giving written notice to the Customer.
8.2 For the purposes of clause 8.1, the relevant events are:
(i) the Customer suspends, or threatens to suspend, payment
of its debts, or is unable to pay its debts as they fall due or
admits inability to pay its debts, (ii) the Customer commences
negotiations with all or any class of its creditors with a view to
rescheduling any of its debts, or makes a proposal for or enters
into any compromise or arrangement with its creditors, (iii)
a petition is filed, a notice is given, a resolution is passed, or an
order is made, for or in connection with the winding up of the
Customer, (iv) an application is made to court, or an order is made,
for the appointment of an administrator or if a notice of intention
to appoint an administrator is given or if an administrator is
appointed over the Customer; (v) a person becomes entitled
to appoint a receiver over the Customer’s assets or a receiver is
appointed over the Customer’s assets, (vi) (being an individual)
the Customer is the subject of a bankruptcy petition or order,
(vii) any event occurs, or proceeding is taken, with respect to
the Customer in any jurisdiction to which it is subject that has
an effect equivalent or similar to any of the events mentioned
above, (viii) the Customer suspends, threatens to suspends, ceases
or threatens to cease to carry on all or a substantial part of its
business, (ix) the Customer’s financial position deteriorates to such
an extent that in the Supplier’s opinion the Customer’s capability
to adequately fulfil its obligations under the Contract has been
placed in jeopardy, or (x) being an individual) the Customer dies
or, by reason of illness or incapacity (whether mental or physical),
is incapable of managing his or her own affairs or becomes a
patient under any mental health legislation.
8.3 On termination of the Contract for any reason the Customer
shall immediately pay to the Supplier all of the Supplier’s
outstanding unpaid invoices and interest.
8.4 Termination of the Contract, however arising, shall not affect
any of the parties’ rights, remedies, obligations and liabilities that
have accrued as at termination.
8.5 Clauses which expressly or by implication survive
termination of the Contract shall continue in full force and effect.
9. Limitation of Liability
9.1 Nothing in these Conditions shall limit or exclude the
Supplier’s liability for:
(a) death or personal injury caused by its negligence, or
the negligence of its employees, agents or subcontractors (as
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of
Goods Act 1979;
(d) defective products under the Consumer Protection Act
(e) any matter in respect of which it would be unlawful for the
Supplier to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) the Supplier shall under no circumstances whatever be
liable to the Customer, whether in contract, tort (including
negligence), breach of statutory duty, or otherwise, for any loss
of profit, or any indirect or consequential loss arising under or in
connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of
all other losses arising under or in connection with the Contract,
whether in contract, tort (including negligence), breach of
statutory duty, or otherwise, shall in no circumstances exceed:
(i) within the first calendar month the price of the Goods, plus
reasonable growing on costs (to be agreed by the parties or in the
event of a dispute, by an expert); and
(ii) in any event two hundred percent (200%) of the price of the
Goods (exclusive of VAT).
10. Intellectual Property Rights and Plant Breeders Rights
10.1 The use of our intellectual property rights, including
commercial property rights (plant variety protection and
trademark protection), copyrights and image rights, is only
permitted on the basis of a separate licensing agreement.
10.2 The Customer warrants that it shall not produce
reproductive material or export fertile materials in relation to any
Protected Plants to a country that does not provide plant variety
protection, unless licenced to do so under a separate agreement.
10.3 If mutations occur, the Customer shall immediately notify
the Supplier, grant us access for examination and review and
voluntarily provide us with samples and cuttings of the mutations.
10.4 If the Customer purportedly receives rights from discovery
of a mutation that the Customer wishes to sell or protect, the
Customer agrees to notify us in advance. We reserve the right to
claim our own rights to any mutations.
10.5 If the Customer sells any acquired rights to mutations, the
Customer shall grant us irrevocable pre-emptive rights; in the case
of the planned protection of such rights, the Customer agrees,
effective immediately to offer us assignment of its rights and, in
the event of their non-transferability, to exclusive licensing at a
10.6 If the parties fail to agree on an appropriate price in
accordance with clause 10.5, an expert appointed by the
Community Plant Varieties Office shall have the final say.
10.7 The buyer grants us or third parties nominated by us the
irrevocable right to visit its premises upon prior notice and by
appointment in order to verify compliance with the provisions of
10.8 The Customer may not use trademarks or symbols used by
us to differentiate its products from those of other legal entities
or companies, or use trademarks or symbols that do not differ
substantially form or own without our express written permission.
The sale of plants in production in our original packaging marked
with our trademarks and symbols is exempt. Goods delivered with
labels originating from us are also exempt. In this case, trademarks
appearing on labels may be used only through use of the labels
delivered along with the delivered material to ensure preservation
of our corporate designs.
11. Advice, Plant Protection & Cultivation
11.1 Storage tips, planting instructions, information on resistance,
plant protection advice and any other advice provided by the
Supplier are provided at the Customer’s risk and the Supplier
does not provide any warranty in respect of the provision of
such advice. The provision of such advice does not relieve the
buyer from its obligation to properly and professionally store and
process the Goods and take the necessary care, especially when
using pesticides and fertilisers as well as growth promoters and
inhibitors. The possibility that pathogens may break the indicated
resistance cannot be ruled out.
11.2 If the Supplier provides plant protection advice and
information regarding resistance, the Customer agrees to first test
the recommended measures on a portion of the goods before
proceeding with the recommended plant protection methods,
which it does at its own risk. Only if the test is successful should
the methods be employed on a general basis. Tested plants must
be kept under exactly the same conditions as the other plants that
will be subject to the plant protection methods upon successful
completion of the test.
11.3 The Customer is responsible for complying with all laws,
including the Plant Acts.
11.4 The Customer shall be responsible for cultivation, especially
in the selection and use of growth promoters and inhibitors,
fertilisers and pesticides. The Customer shall ensure the
compatibility of the methods employed. Please note that damage
may occur if non-compatible growth promoters and inhibitors
and pesticides are used. We are not liable for any damage resulting
from cultivation errors.
11.5 Descriptions, illustrations, growing recommendations and
other information, in whatever form, that have been provided
by the Supplier (or its agents), including shelf life information,
sowing, planting and harvesting dates or details and information
about breeding and cultivation conditions, are based as closely
as possible on practical and experimental procedures. We do
not accept responsibility for any loss or damage that results
from the implementation of use of such descriptions, growing
recommendations or other information. The Customer shall bear
the full risk and responsibility, whether the products and growing
recommendations are suitable for the intended cultivation under
local conditions. Product pictures in catalogues, on the internet
or in other publications show the varietal type of each variety
and not the variety as such. These pictures provide neither an
expressed or implied warranty regarding the harvest results.
12. Force Majeure
Neither party shall be liable for any failure or delay in performing
its obligations under the Contract to the extent that such failure
or delay is caused by a Force Majeure Event. A Force Majeure
Event means any event beyond a party’s reasonable control,
which by its nature could not have been foreseen, or, if it could
have been foreseen, was unavoidable, including strikes, lock-outs
or other industrial disputes (whether involving its own workforce
or a third party’s), failure of energy sources or transport network,
acts of God, war, terrorism, riot, civil commotion, interference
by civil or military authorities, national or international calamity,
armed conflict, malicious damage, breakdown of plant or
machinery, nuclear, chemical or biological contamination, sonic
boom, explosions, collapse of building structures, fires, floods,
storms, earthquakes, loss at sea, epidemics including coronavirus
outbreaks or similar events, natural disasters or extreme adverse
weather conditions, disease, infestation or crop failure, or default
of suppliers or subcontractors.
13.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage,
charge, subcontract or deal in any other manner with all or any of
its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge,
subcontract, declare a trust over or deal in any other manner with
any or all of its rights or obligations under the Contract without
the prior written consent of the Supplier.
(a) Any notice or other communication given to a party
under or in connection with the Contract shall be in writing,
addressed to that party at its registered office (if it is a company)
or its principal place of business (in any other case) or such other
address as that party may have specified to the other party in
writing in accordance with this clause, and shall be delivered
personally, sent by pre-paid first class post or other next working
day delivery service, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have
been received: if delivered personally, when left at the address
referred to in clause 13.2(a); if sent by pre-paid first class post
or other next working day delivery service, at 9.00 am on the
second Business Day after posting; if delivered by commercial
courier, on the date and at the time that the courier’s delivery
receipt is signed; or, if sent by fax or email, one Business Day after
(c) The provisions of this clause shall not apply to the service of
any proceedings or other documents in any legal action.
(a) If any provision or part-provision of the Contract is or
becomes invalid, illegal or unenforceable, it shall be deemed
modified to the minimum extent necessary to make it valid,
legal and enforceable. If such modification is not possible, the
relevant provision or part-provision shall be deemed deleted. Any
modification to or deletion of a provision or part-provision under
this clause shall not affect the validity and enforceability of the rest
of the Contract.
(b) If any provision or part-provision of this Contract is invalid,
illegal or unenforceable, the parties shall negotiate in good faith
to amend such provision so that, as amended, it is legal, valid and
enforceable, and, to the greatest extent possible, achieves the
intended commercial result of the original provision.
13.4 Waiver. A waiver of any right or remedy under the Contract
or law is only effective if given in writing and shall not be deemed
a waiver of any subsequent breach or default. No failure or delay
by a party to exercise any right or remedy provided under the
Contract or by law shall constitute a waiver of that or any other
right or remedy, nor shall it prevent or restrict the further exercise
of that or any other right or remedy. No single or partial exercise of
such right or remedy shall prevent or restrict the further exercise
of that or any other right or remedy.
13.5 Third party rights. A person who is not a party to the
Contract shall not have any rights to enforce its terms.
13.6 Variation. Except as set out in these Conditions, no
variation of the Contract, including the introduction of any
additional terms and conditions, shall be effective unless it is in
writing and signed by the Supplier.
13.7 Governing law. The Contract, and any dispute or claim
arising out of or in connection with it or its subject matter or
formation (including non-contractual disputes or claims), shall
be governed by, and construed in accordance with the law of
England and Wales.
13.8 Jurisdiction. Each party irrevocably agrees that the courts
of England and Wales shall have exclusive jurisdiction to settle any
dispute or claim arising out of or in connection with this Contract
or its subject matter or formation (including non-contractual
disputes or claims).