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The Farmer's attention is particularly drawn to the provisions of conditions 7 and 8.
1.1 Definitions. In these Conditions, the following definitions and rules of interpretation apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with condition 18.5.
Contract: the contract between the Supplier and the Farmer for the supply of Goods and/or Services in accordance with these Conditions.
Delivery Location: has the meaning set out in condition 3.
Draw Down: the procedure whereby the Farmer (having contracted with the Supplier to pay monthly for an agreed quantity of Goods as set out in the Order) requests delivery of any quantity of the Order for the Goods (in whole or in part) (and “Drawn Down” and “Draws Down” shall be interpreted accordingly).
Draw Down Period: the period of 52 weeks from the date of Contract.
Farmer: the person or firm who purchases the Goods and/or Services from the Supplier.
Force Majeure Event: has the meaning given to it in condition 17.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Farmer's order for the supply of Goods and/or Services, as set out in the Farmer's written acceptance of the Supplier's quotation, or on the Order Form set out overleaf, as the case may be.
Order Form: the form detailing key terms of the Contract.
Personal Data: has the meaning given in condition 13.1.
Price: the price payable by the Farmer for the Goods and/or Services as set out in the Order.
Requested Delivery Date: means the date specified in the Order as the date requested by the Farmer for delivery of the Goods and/or performance of the Services, or, in respect of any Goods which are Drawn Down by the Farmer pursuant to an Order, the date agreed by the Supplier and the Farmer for delivery of the applicable Goods.
Services: the services supplied by the Supplier to the Farmer as set out in the Order.
Supplier: Alta Limited a company incorporated in Scotland with company number SC166236 and having its registered office at 147 Bath Street, Glasgow, G2 4SN.
Supplier Materials: has the meaning set out in condition 6.1.6.
1.2 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.3 a reference to a party includes its successors or permitted assigns;
1.4 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and
1.5 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 those terms.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Farmer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Farmer to purchase Goods and/or Services in accordance with these Conditions. The Farmer shall ensure that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted on the earlier of:
2.3.1 the Supplier signing the Order Form; or
2.3.2 the Supplier commencing delivery of the Goods and/or performance of the Services, at which point the Contract shall come into existence (Commencement Date).
2.4 The Supplier may agree to supply Goods to the Farmer on a Draw Down basis during the Draw Down Period.
2.5 The Contract constitutes the entire agreement between the parties. The Farmer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any descriptive matter or advertising issued by the Supplier and any descriptions of the Goods and/or Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or any other contract between the Supplier and the Farmer for the supply of the Goods and/or Services.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. DELIVERY OF GOODS
3.1 The Supplier will 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 Farmer that the Goods are ready.
3.2 In the case of a Contract for the supply of Goods to be Drawn Down by the Farmer:
3.2.1 the Farmer shall give the Supplier no less than 5 Business Days’ notice of the type and quantity of Goods to be Drawn Down; and
3.2.2 the Supplier shall use its reasonable endeavours to make deliveries of such types and quantities at such frequencies as may be agreed by the parties.
3.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
3.4 The Supplier shall use its reasonable endeavours to make the Goods available for delivery or collection on the Requested Delivery Date, but the Supplier shall not incur any liability whatever in the event of any delay however caused. For the avoidance of doubt, time for delivery of the Goods shall not be of the essence.
3.5 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant reference numbers of Farmer and Supplier, the type and quantity of the Goods (including the code number of the Goods, where applicable) and any special storage instructions.
3.6 For the avoidance of doubt, the Farmer shall not be entitled to reject the Goods if the Supplier delivers up to and including 10% less than the quantity of Goods ordered.
3.7 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment (including any instalments delivered on a Draw Down basis) shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Farmer to cancel any other instalment.
4. TITLE AND RISK.
4.1 The risk in the Goods shall pass to the Farmer on completion of delivery of the whole or part of the Goods (as applicable).
4.2 Title to the Goods shall not pass to the Farmer until the Supplier has received payment in full (in cash or cleared funds) for
4.2.1 the Goods and/or Services; and
4.2.2 any other goods or services that the Supplier has supplied to the Farmer in respect of which payment has become due.
4.3 If before title to the Goods passes to the Farmer the Farmer becomes subject to any of the events listed in condition 15.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Farmer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into the Farmer’s cows or heifers, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Farmer to deliver up the Goods and, if the Farmer fails to do so promptly, enter any premises of the Farmer or of any third party where the Goods are stored in order to recover them.
5. SUPPLY OF SERVICES
5.1 The Supplier shall:
5.1.1 perform the Services at the Farmer’s address specified in the Order unless otherwise agreed between the parties;
5.1.2 use reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services;
5.1.3 have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Farmer in any such event.
6. FARMER'S OBLIGATIONS
6.1 The Farmer shall:
6.1.1 co-operate with the Supplier in all matters relating to the Goods and/or Services and provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Farmer's premises, office accommodation and other facilities as reasonably required by the Supplier to deliver the Goods and/or provide the Services;
6.1.2 comply with the Supplier’s written instructions in relation to the Goods and/or Services;
6.1.3 provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
6.1.4 prepare the Farmer's premises for the delivery of the Goods and/or supply of the Services;
6.1.5 where applicable, obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
6.1.6 keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Farmer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
6.2 If the Supplier's performance of any of its obligations in respect of the Goods and/or Services is prevented or delayed by any act or omission by the Farmer or failure by the Farmer to perform any relevant obligation (Farmer Default):
6.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend delivery of the Goods and/or performance of the Services until the Farmer remedies the Farmer Default, and to rely on the Farmer Default to relieve it from the performance of any of its obligations to the extent the Farmer Default prevents or delays the Supplier's performance of any of its obligations;
6.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Farmer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this condition 6.2; and
6.2.3 the Farmer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Farmer Default.
7. WARRANTY AND FITNESS FOR PURPOSE
7.1 The Farmer acknowledges and accepts that:
7.1.1 progeny created using the Goods and/or Services will have varying fertility rates, characteristics and traits due to a number of factors including the fertility, genotype and characteristics of the recipient cow or heifer and the environment in which the recipient cow or heifer is kept; and
7.1.2 factors outside of the Supplier’s control, including the genotype of the recipient cow or heifer and its environment may cause progeny created from the use of the Goods and/or Services to possess recessive genes or defects which may lead to genetic abnormalities or contribute to illness, disease, impairment, ill-health or otherwise.
7.2 The Supplier shall take all reasonable steps to maintain the fertility of the Goods but cannot guarantee that the Goods are fertile at the time of delivery.
7.3 The Supplier gives no guarantee that progeny will result from use of the Goods and/or Services.
7.4 The Supplier gives no guarantee in respect of the sex ratio of progeny resulting from the use of the Goods and/or Services.
7.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8. LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
8.1.1 death or personal injury to any human being caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
8.1.2 fraud or fraudulent misrepresentation; or
8.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
8.1.4 any other liability which cannot at law be excluded.
8.2 Subject to condition 8.1:
8.2.1 the Supplier shall not be liable to the Farmer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for loss of profit; loss of business; loss of opportunity; loss of revenue; loss of, or damage to goodwill or reputation; or any other indirect or consequential loss whatsoever, arising under or in connection with the Contract;
8.2.2 the Farmer shall be solely responsible for and hold the Supplier fully indemnified from and against any and all claims, demands, liabilities, losses, damages, proceedings, costs and expenses incurred by the Supplier as a result of:
(a) a breach by the Farmer of any term of these Conditions; and/or
(b) the use by the Farmer of the Goods otherwise than in accordance with the written instructions of the Supplier; and
8.2.3 the Supplier’s total liability to the Farmer 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 be limited to the Price.
8.3 This condition 8 shall survive termination of the Contract.
9. PRICE AND PAYMENT
9.1 In consideration of the Goods and/or Services, the Farmer shall pay to the Supplier the Price.
9.2 Subject to condition 9.3, the Supplier shall invoice the Farmer for the Goods and/or Services in the last week of the month during which the Goods were delivered and/or Services performed (as applicable).
9.3 Where the Supplier has contracted to supply Goods on a Draw Down basis, the Supplier shall invoice the Farmer in accordance with the payment schedule agreed with the Farmer, as the same may be set out on the Order.
9.4 The Farmer shall pay all invoices in full and in cleared funds within 30 days of the date of the invoice. Time of payment is of the essence.
9.5 All amounts payable by the Farmer under the Contract are exclusive of amounts in respect of value added tax (VAT) which shall be charged at the prevailing rate. The Farmer 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 Goods and/or Services.
9.6 All payments, if not made by BACS or standing order, shall be made by cheque to the address of the Supplier stated above or at such other address as the Supplier may from time to time specify or by credit or debit card.
9.7 If the Farmer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), then the Farmer shall pay interest on the overdue amount at the rate of 2% per month above the Bank of England base rate. Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. The Farmer shall pay the interest together with the overdue amount. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.8 The Farmer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Farmer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. 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 Farmer against any amount payable by the Supplier to the Farmer.
10. REVISION OF THE PRICE
10.1 The Supplier may, in its absolute discretion, by giving notice to the Farmer at any time before the Requested Delivery Date revise the Price to reflect any change that is due to:
10.1.1 any factor beyond the Supplier's control (including foreign exchange fluctuations, changes in taxes and duties, labour, materials and other manufacturing costs);
10.1.2 any request by the Farmer to change the Requested Delivery Date(s), quantities of the Goods, nature and/or scope of the Services and/or any other aspect of the Order; or
10.1.3 any delay caused by any instructions of the Farmer or failure of the Farmer to give the Supplier adequate or accurate information or instructions.
10.2 Where the Supplier has contracted to supply Goods on a Draw Down basis, the Supplier reserves the right to amend the Price payable by the Farmer for such Goods where the period within which the Farmer Draws Down the Order extends beyond the Draw Down Period.
10.3 Any such revision of the Price pursuant to condition 10.1 or condition 10.2 will be notified by the Supplier to the Farmer as soon as is practicable and in any event on or before the Requested Delivery Date.
10.4 The Farmer shall, for a period of 7 days after receipt of a notification pursuant to condition 10.1, have the right to serve notice on the Supplier cancelling the Order and, subject to condition 10.5, the Farmer will incur no liability or obligation to the Supplier on account of such cancellation.
10.5 Where any increase in the Price is caused by an act or omission of the Farmer, the Farmer shall be liable to pay any expenses or charges incurred by the Supplier up to the point of cancellation.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
11.2 The Farmer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Farmer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Farmer.
11.3 All Supplier Materials are the exclusive property of the Supplier.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This condition 12 shall survive termination of the Contract.
13. DATA PROTECTION
13.1 By placing an Order for Goods and/or Services the Farmer consents to the Supplier processing personal data collected from the Farmer (including name, address, telephone number and email address (Personal Data)) for the purposes of:
(a) fulfilling the Order;
(b) fulfilling any subsequent order from the Farmer; and
(c) sending marketing literature by post or email to the Farmer regarding the Supplier’s related products, goods or services.
13.2 Any Personal Data processed by the Supplier shall be processed in accordance with the requirements of the Data Protection Act 1998. Without prejudice to the generality of the foregoing, the Supplier shall not use or disclose the Personal Data to any third party except as set out in these Conditions.
13.3 The Farmer consents to disclosure by the Supplier of the Farmer’s Personal Data to any member of the Supplier’s group, which means its subsidiaries, ultimate holding company and its subsidiaries, as defined in section 1159 of the UK Companies Act 2006.
13.4 The Farmer has the right to request that the Supplier does not process its Personal Data for marketing purposes. Such request shall be made by the Farmer in writing to the Supplier and the Supplier shall cease processing the Personal Data for marketing purposes within 10 days of receipt of such request.
13.5 This condition 13 shall survive termination of the Contract.
14.1 If the Farmer:
14.1.1 fails to pay the Price or any other sums payable under any Contract in full within 14 days after such sums have become due (whether demanded or not); or
14.1.2 commits a material or persistent breach of any other term of these Conditions (whether express or implied), then the Farmer shall be deemed to have committed a repudiatory breach of the Contract and the Supplier may accept such repudiation and immediately cancel the Contract without liability to the Farmer and without prejudice to the Supplier’s other rights and remedies at law or under these Conditions.
14.2 In the event of any such cancellation under condition 14.1, the Supplier may cancel or suspend the supply of Services and all further deliveries due under any Contract between the Farmer and the Supplier without incurring any liability to the Farmer, all outstanding sums in respect of Goods delivered to the Farmer shall become immediately due and the provisions of condition 14.1 shall apply.
14.3 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing of the breach.
15. FARMER'S INSOLVENCY OR INCAPACITY
15.1 If the Farmer becomes subject to any of the events listed in condition 15.2, or the Supplier reasonably believes that the Farmer is about to become subject to any of them and notifies the Farmer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract and/or any contract between the Farmer and the Supplier without incurring any liability to the Farmer, and all outstanding sums in respect of Goods delivered and/or Serviced performed to the Farmer shall become immediately due.
15.2 For the purposes of condition 15.1, the relevant events are:
15.2.1 if the Farmer goes into liquidation, becomes insolvent or has an administrator, receiver or similar officer appointed in respect of all or part of its undertaking (or is the subject of a filing with any court for the appointment of any such officer), or any event occurs, or proceeding is taken, with respect to the Farmer in any jurisdiction to which it is subject that has an effect equivalent or similar; or
15.2.2 the Farmer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or
15.2.3 the Farmer's financial position deteriorates to such an extent that in the Supplier's opinion the Farmer's capability adequately to fulfil its obligations under the Contract has been placed in jeopardy; or
15.2.4 (being an individual) the Farmer 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.
16. CONSEQUENCES OF CANCELLATION
16.1 Without prejudice to the Supplier's rights to claim damages, the Farmer shall, upon any cancellation under condition 14 or 15 immediately pay to the Supplier:
16.1.1 all arrears of the Price and all other sums accrued due and unpaid at the date of termination, together with interest in accordance with condition 2; and
16.1.2 any costs and expenses incurred by the Supplier in locating, recovering or restoring the Goods or collecting any payments due under the Contract or otherwise in obtaining the due performance of the obligations of the Farmer under these Conditions (as applicable).
16.2 On cancellation of the Contract the Farmer shall return all of the Supplier Materials to the Supplier. If the Farmer fails to do so, then the Supplier may enter the Farmer's premises and take possession of them. Until they have been returned, the Farmer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
17. FORCE MAJEURE
17.1 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, explosions, collapse of building structures, fire, floods, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors. The provisions of this condition shall not apply to any payment obligations.
17.2 A party claiming to be unable to perform its obligations in the circumstances set out in condition 17.1 must immediately notify the other party of the nature and extent of the circumstances in question.
18.1 Assignment and subcontracting. The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Farmer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
18.2 Severance. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
18.3 Waiver. A waiver of any right or remedy under the Contract 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18.4 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
18.5 Variation of the Contract. Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the parties.
18.6 Rights Cumulative. The rights of the Supplier under these Conditions are additional and without prejudice to any other rights and remedies available to it either in these Conditions or provided or permitted by law or equity.
18.7 Notices. Any notice or other document to be served under these Conditions or other communication to any party must be in writing and may be delivered or sent by pre-paid first class letter post to the party to be served at that party's address above or at such other address or number as that party may from time to time notify in writing to the other party to these Conditions. Any notice or document shall be deemed served: if delivered, at the time of delivery; or if posted, 48 hours after posting.
18.8 Invalidity. The invalidity, illegality or unenforceability of any provision of these Conditions shall not affect the other provisions.
18.9 Governing Law and jurisdiction. 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.