1.1. In these Conditions: “Conditions” are these terms and conditions of trading and any special terms and conditions mentioned on any written quotation or acceptance of the Customer’s order.
1.2. “Customer” means the party identified as the Customer in these conditions to whom Forage Technology may agree to supply Products in accordance with these conditions.
1.3. “Contract” is the contract for the purchase and sale of the products.
1.4. “Quotation” or “quote” is a tender made by Forage Technology whether oral or in writing.
1.5. “Forage Technology” means Forage Technology Limited, company registration number 03283676 trading as Forage Technology Limited, registered address Unit 1, Furness Vale Marina, Station Road, Furness Vale, High Peak SK23 7QA or any subsidiary or associated company.
1.6. “Products” means products and/or services including but not limited to Silosolve FC , Silosolve MC and Maneuver Lagoon to be provided by Forage Technology to the Customer in accordance with these terms and conditions.
1.7 “Estimated Times” means the timescale provided on the delivery date specified by Forage Technology.
2.1. All orders placed with Forage Technology by the Customer for Products shall constitute an offer to Forage Technology, under these conditions, subject to availability of the products and to acceptance of the order by Forage Technology’s authorised representative.
2.2. All orders are accepted and Products supplied subject to these express terms and conditions only. No amendment to these terms and conditions will be valid unless confirmed in writing on or after the date hereof by Forage Technology’s authorised representative.
2.4. It is agreed that these terms and conditions prevail over the Customer’s terms and conditions of purchase unless Forage Technology amends these latter terms and conditions in writing and signed by Forage Technology’s authorised representative to expressly agree that the Customer’s terms and conditions will prevail.
2.5. Forage Technology’s employees or agents are not authorised to make any representations concerning the Products unless confirmed by Forage Technology in writing. In entering into the contract the Customer acknowledges that it does not rely on, and irrevocably waives any claim it may have for damages for or right to rescind the Contract for any such representations which are not so confirmed (unless such representations were fraudulently made).
2.6. Any advice or recommendation given by Forage Technology or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by Forage Technology is followed or acted upon entirely at the Customer’s own risk and, accordingly, Forage Technology shall not be liable for any such advice or recommendation which is not so confirmed.
2.7. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Forage Technology shall be subject to correction without any liability on the part of Forage Technology.
3.1. The relationship between the Supplier and Customer is that of Independent Contractor. Neither party is the agent of each other, and neither party has any authority to make any contract or enter into any obligation directly or indirectly in the name of the other party, without that party’s prior written consent for express purposes connected with the performance of these conditions.
3.2 Each Customer agrees to conduct a face to face meeting to discuss business plan, volumes, pricing and any issues arising from the supplier/Customer relationship including marketing budgets (inputs and expectations),customer support budgets and Forage Technology initiatives.
3.3 Each Customer who is an on-seller agrees to facilitate at least twice yearly meetings between the Forage Technology technical sales support team and their own sales team to update and refresh product sales information and to share feedback. Each Customer will nominate a “Silosolve” technical specialist within the Customer organisation to undertake extended training and education in forage conservation from both Forage Technology and Christian Hansen A/S.
3.4 Each Customer who is an on-seller agrees to facilitate at least twice yearly meetings between the Forage Technology technical sales support team and their own marketing teams to plan literature, social media, show presence, share contacts with grassland societies, HF groups and Young Farmers. All marketing and advertising including sales scripts requires the prior approval in writing of Forage Technology to ensure that there is no breach of Christian Hansen A/S guidelines.
3.5 Each Customer who is an on-seller agrees to restrict on-sales of products to sub-distributors who have reached and who are currently up-to-date and confirmed by Forage Technology to be in good standing with Forage Technology’s training requirements so as to show a similar level of technical sales and marketing competence to the satisfaction of Forage Technology. Forage Technology promotes a healthy and competitive marketplace and approves of fair competition between distributors and sub- distributors but is unlikely to approve sub-distributors who have behaved unethically or who have been involved in predatory pricing, have induced breach of contract on previous occasions so as to bring the Products and Forage Technology into disrepute.
4.1. Any time quoted for despatch or delivery is to be treated as an estimate only. It is the responsibility of the customer to ensure any import duty is paid in full. In no event shall Forage Technology be liable for any loss or damages or penalty, direct or indirect, for delay in despatch or delivery. However orders placed can often be fulfilled on a next day delivery basis using DPD’s delivery service which has a function for providing Estimated Times- both notifying a one hour delivery slot and an ETA.
4.2. Time for delivery shall not be of the essence and DPD are an independent contractor.
4.3. Forage Technology shall not be responsible for loss or damage resulting from delay or failure to notify the Customer of any delay. Changed specifications or instructions may result in changes to Estimated Times.
4.4. The Products may be delivered in instalments. Each delivery shall constitute a separate contract and failure by Forage Technology to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
4.5. The place for delivery of the Products will be notified to Forage Technology by the Customer prior to despatch of the Products. If the Customer fails to take delivery of the Products, fails to pay import duties, or fails to give Forage Technology adequate delivery instructions at the time stated for delivery then Forage Technology may store the Products until actual delivery and charge the Customer for the costs (including insurance) of storage and re-delivery; or sell the Products at the best price readily obtainable and (after deducting all storage, selling and other expenses) account to the Customer for the excess over sums owing by the Customer or charge the Customer for any shortfall.
4.6. Risk shall pass to the Customer at the time the Products are despatched by Forage Technology. Forage Technology accepts no liability for loss or damage caused by the carrier.
4.7. If Products have not been received, the Customer must notify Forage Technology within 7 days of the date of the invoice. If proof of delivery is required, this must be requested within 14 days of the date of the invoice.
5.1. Any request by the Customer for cancellation of any order or for the rescheduling of any deliveries will only be considered by Forage Technology if made at least 12 hours before dispatch of the Products, and shall be subject to acceptance by Forage Technology at Forage Technology’s sole discretion, and subject to a reasonable administration charge therefor by Forage Technology. The Customer hereby agrees to indemnify Forage Technology against all loss, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.
5.2. Forage Technology may cancel the Contract with the Customer by giving written notice in the event that:
5.2.1. Any invoices for the sale of Forage Technology’s Products are overdue for payment;
5.2.2. The manufacturer of the Products advises Forage Technology of an increase in the price of the Products;
5.2.3. For reasons beyond the control of Forage Technology it is unable to effect delivery following the manufacturer’s termination of the Products or there is an insufficient supply of Products from the manufacturer;
5.2.4. On the giving of such notice of cancellation, Forage Technology shall repay to the Customer any sums paid in respect of the price of the Products. Forage Technology shall not be liable for any loss or damage arising from such cancellation.
6.1. Catalogues, price lists and other advertising literature or material as used by Forage Technology are intended only as an indication as to the price and range of Products offered and no prices, descriptions or other particulars contained therein shall be binding on Forage Technology.
6.2. All prices are given by Forage Technology at the time of the order on an ex-works basis and the Customer is liable to pay for import duties, transport, packing and insurance. Forage Technology does not sell Silosolve outside the United Kingdom.
6.3. All quoted or listed prices are based on the cost to Forage Technology of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in any way of such costs in respect of Products which have not yet been delivered, the price payable may be subject to amendment without notice at Forage Technology’s discretion.
6.4. All prices are exclusive of Value Added Tax, import duties and any similar taxes. All such taxes are payable by the Customer and will be supplied in accordance with UK legislation in force at the tax point date.
6.5. The Customer shall pay Forage Technology’s invoices without any deduction or set off. Forage Technology may recover the price notwithstanding that delivery may not have taken place and property in the Products has not passed to the Customer. The time of payment shall be of the essence.
6.6. Quotations may be withdrawn at any time prior to acceptance of order and shall automatically be taken to have lapsed after 7 days from the date of any Tender.
7.1. Invoices will be raised and dated by Forage Technology on the date of delivery of the Products. Unless otherwise specifically requested and agreed, invoices will be payable within 30 days of the invoice date. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at the rate of 2% per annum above the base rate for the time being of Royal Bank of Scotland plc. Forage Technology retains the right to charge such interest cost which it may incur, and interest shall accrue on a daily basis and be payable on demand after as well as before judgment.
7.2. If the Customer has a credit account with Forage Technology, the credit limit as determined from time to time by Forage Technology shall not be exceeded without the written consent of Forage Technology’s authorised representative. Credit terms may be withdrawn at the discretion of Forage Technology.
7.3. If the Customer has a credit account with Forage Technology Ltd, invoices must be paid within 14 days of the invoice date. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at the rate of 2% per annum above the base rate for the time being of RBS. Such interest shall accrue on a daily basis and be payable on demand after as well as before judgement.
7.4. Forage Technology Limited reserve the right to terminate credit account payment terms with immediate effect when it deems this reasonable to do so.
8.1. Forage Technology will invoice with VAT at the applicable rate unless the customer requests and provides sufficient information for zero or European VAT supply. Forage Technology will not refund VAT after the completion of the sale.
8.2 All import duties will be paid for by the Customer.
9.1. When all prices, taxes and charges due in respect of all of the Products and any Products supplied previously to the Customer have been paid in full, title to physical Products only and not the Intellectual Property they represent will then pass to the Customer.The Customer agrees to take no action to infringe the Intellectual; property rights of Forage Technology and will not seek to reverse engineer analyse or reproduce any of the Products.
9.2. Notwithstanding despatch and the passing of risk in the Products to the Customer pursuant to Clause 9.1, or any other provision of these conditions, the property of the Products shall not pass to the Customer until Forage Technology has received cash or cleared funds payment of the price of the Products and all of the Products agreed to be sold by Forage Technology to the Customer for which payment is then due.
9.3. Until such time as and unless the property in the Products passes to the Customer, the Customer shall hold the Products as Forage Technology’s fiduciary agent and bailee, and shall keep the Products properly stored, protected and insured and identified (by way of identifying sticker identifying the Product as Forage Technology’s property. Until that time the Customer shall be entitled to use the products in the ordinary course of its business.
9.4. Until such time as and unless the property in the Products passes to the Customer (and provided the Products are still in existence), Forage Technology shall be entitled at any time to require the Products be delivered to Forage Technology and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.
9.5. The Customer’s power of sale or right to use such Products shall immediately cease if an Administrative receiver is appointed over all or any part of its assets or if it adjudicated bankrupt or enters liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of the Insolvency Act 1986.
9.6. On termination of the Company’s power of sale or right to use the Products the Customer will immediately hold the Products to the order of Forage Technology.
9.7. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtness any of the Products which remain the property of Forage Technology, but if the Customer does so, all monies owing by the Customer to Forage Technology shall (without prejudice to any other right or remedy of Forage Technology) forthwith become due and payable.
9.8. Forage Technology reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, Forage Technology reserves the right to withdraw any credit facility such that the whole of the Customer’s account becomes due for payment forthwith.
10.1. All consignment stock must be stored at all times in refrigerated conditions approved by Forage Technology and Forage Technology reserves the right to conduct periodic spot-checks on storage conditions.
10.2. Forage Technology will not be liable in respect of any loss or damage caused by or resulting from any variation or deviation in use for whatsoever reason from the manufacturer’s instructions for use contained in its specifications or technical data and will not be responsible for any loss or damage following such variation or deviation. Forage Technology reserves the right to vary the composition or formulation of its Products from time to time.
11.1. The Customer hereby acknowledges that any proprietary rights in any Forage Technology Product supplied hereunder or derived from use of the Products including but not limited to any title or ownership rights, patentable rights, copyright and rights in data confidential information or trade secrets , shall at all times and for all purposes be assigned to vest in and remain for all purposes vested in Forage Technology
11.2. NO TITLE OR OWNERSHIP OF ANY INTELLECTUAL PROPERTY RIGHTS IN ANY PRODUCT SOLD TO THE CUSTOMER UNDER THIS AGREEMENT IS TRANSFERRED TO THE CUSTOMER UNDER ANY CIRCUMSTANCES.
12.1. The Customer shall inspect the Products on delivery and unless the Customer notifies any defects in writing within 7 days of delivery and unless Customer gives Forage Technology an opportunity to inspect the Products within a reasonable time following delivery and before any use is made of the Products, the Products shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage and the Customer shall be deemed to have accepted the Products.
12.2. After acceptance the Customer shall not be entitled to reject Products, which are not in accordance with the Contract. In no event shall the Customer be entitled to reject the Products on the basis of any defect or failure, which is so slight that it would be unreasonable for the Customer to reject the Products.
12.3. The Customer shall notify Forage Technology of any shortage of quantity or damage to the Products or any alleged failure to comply with its description within 2 working days of receipt of the Products.
12.4. Returns must be made subject to the following:
12.4.1. prior authority having been obtained from Forage Technology which will be given at Forage Technology’s sole discretion;
12.4.2. within 30 days of the date of the invoice;
12.4.3. the Products must be properly packed and stored. The shelf life of the product varies according to its storage temperature so evidence of the prevailing average temperature during storage musty be provided;
12.4.4. the Products must be in a saleable condition;
12.4.5. the Products must be accompanied by a packing list;
12.4.6. the Product has been subject to and conditional upon a satisfactory total bacteria count (“TBC”) test prior top return.
12.5. Forage Technology reserves the right to reject any returned Products which do not comply with the conditions set out in clause 12.4. and will be returned to the Customer freight collect. Forage Technology shall specifically not accept the returned Products unless it includes the original packaging.
12.6 The Customer agrees not to contact solicit or deal with any subcontractor, end-manufacturer or supplier to Forage Technology of any Products for a period of 12 months from the supply of any Products by Forage Technology.
13.1. Forage Technology warrants that it has good title to the Products is entitled to supply all Products to the Customer.
13.2. If any part of the Products should arrive so damaged as to be unusable, such Products will be replaced only PROVIDED THAT no unauthorised modifications to the Product or to the system of which the Product forms part have taken place or that the Product has been damaged by the Customer. Forage Technology is not responsible for the loss arising from the use of Products other than as directed by Forage Technology.
13.3. If the Products are rejected by the Customer as not being in accordance with the Customer’s order pursuant to clause 13.2 or 13.3, Forage Technology will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. Forage Technology will not consider any claim for compensation, indemnity or refund under liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the invoiced Products be deducted or set off by the Customer until Forage Technology has passed a corresponding credit note.
13.5 Forage Technology cannot and does not represent or provide any warranty, guarantee or other assurance that Product will meet the present or future requirements of Customer.
13.6 Except for the warranties provided in clause 13.1 and 11, Forage Technology does not provide any warranties, guarantees or representations, and all conditions, warranties, representations and other terms expressed or implied by statute, common law or otherwise in connection with this Agreement and in relation to which Forage Technology might otherwise be liable or responsible are hereby excluded to the fullest extent permitted by law.
13.6. EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 13, FORAGE TECHNOLOGY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE.
14.1. Forage Technology does not attempt to limit liability for personal injury or death caused by its negligence or the negligence of its employees or agents. Subject to the provisions of the Unfair Contract Terms Act 1977, otherwise all warranties, conditions, representations or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.2. To the extent the law does not permit the liabilities concerned to be excluded and save as otherwise expressly provided, Forage Technology’s entire aggregate liability for all claims shall be limited to damages of an amount equal to the price of the relevant batch of Products paid.
14.3. Except as stated in clauses 14.1 and 14.2 above, Forage Technology disclaims and excludes all liability to the Customer in connection with these terms and conditions including the Customer’s installation and use of the Products and in no event shall Forage Technology be liable to the Customer for special, indirect or consequential damage including but not limited to loss of profits including loss of profits arising from loss of data or in connection with the use of the Products. Subject to 14.1 . All terms of any nature, express or implied, statutory or otherwise, as to correspondence with any particular description or sample, fitness for purpose or merchantability, are hereby excluded.
14.5. The Customer shall indemnify and defend Forage Technology and its employees in respect of any claims by third parties, which are occasioned by or arise from following the instructions of the Customer or its authorised representative.
15.1. The Customer shall fully and effectively indemnify Forage Technology against the total expense to Forage Technology arising out of the Customer’s breach or breaches of these conditions of sale. Such expense shall include (without limitation)
15.1.1. all expenses incurred by Forage Technology in connection with the breach
15.1.2. all court fees
15.1.3. all amounts payable to Forage Technology’s professional advisers (payable on an indemnity basis) in pursuing claims against the Customer for breach or breaches of these conditions and for enforcing any judgement/s and/or order/s
15.1.4. all amounts payable to Forage Technology’s insurers including increased premiums and/or debt recovery agents, in each case including anticipated sums payable by Forage Technology only after payment of any sums from the Customer.
16.1. Forage Technology shall
16.1.1. in any event not be liable for loss or damage for any cause beyond its control; and
16.1.2. be entitled to cancel or rescind the contract if the performance of its obligations under the contract is in any way adversely affected by any cause whatsoever beyond Forage Technology’s control including (but not limited to) the delays or default of any sub-contractor, war, terrorism, strike, lock-out, trade disputes, flood, accident to plant or machinery, shortage of materials or labour.
17.1. This agreement may be terminated forthwith by notice in writing:
17.1.1. By Forage Technology if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment in these Trading Terms.
17.1.2. If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party.
17.1.3. If either party is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or a reconstruction, or makes an arrangement with creditors or petitions for an administration order 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 Section 123 of the Insolvency Act 1986, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this Agreement forthwith.
17.2. Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued rights or liabilities of either party.
18.1. Having regard to the current statutory or other United Kingdom government regulations in force from time to time and, in the case of Products manufactured in the United States of America, to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the Customer to Forage Technology of an ultimate destination for any Products, the customer will not export or re-export any Products without first obtaining all such written consents or authorisations as may be required by any applicable government regulations.
19.1. The headings in this Agreement are for ease of reference only and shall not affect its interpretation or construction.
19.2. No forbearance, delay, indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
19.3. The Customer agrees not to assign any of its rights herein without the prior written consent of Forage Technology.
19.4. In the event of any of these terms and conditions or any part of them being judged illegal or unenforceable for any reason, the continuation in full force and effect of the remainder of them shall not be prejudiced.
19.5. Neither party shall be liable to the other for any delay in failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from force majeure, act of God, fire, explosion, accident, industrial dispute or any cause beyond its reasonable control.
19.6. Any documents or notices given hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.
19.7. These terms and conditions shall be construed in accordance with English Law.
20.1. The terms of these conditions do not affect a consumer’s statutory rights.
20.2. The following terms shall only apply to those persons who purchase products from Forage Technology as a consumer as defined in the consumer protection (distance selling) regulations (“Regulations”)
20.3. A consumer shall, subject to the terms set out in this clause 20, have the right to cancel a contract within 7 working days from the day after the date of the delivery of the products by Forage Technology to the consumer providing that the consumer makes the request to Forage Technology in writing. In the case of online purchases a consumer has certain rights under the Distance Selling Regulations which are summarised here: https://www.gov.uk/accepting-returns-and-giving-refunds. No form of cancellation is required or stipulated and cancellation by email to Forage Technology will suffice.
20.4. Should a consumer exercise their right to cancel pursuant to this clause, Forage Technology will in accordance with the regulations, reimburse any payment made by the consumer for the products minus any carriage.
charges within 30 days of receiving the written notification of cancellation unless: –
20.4.1. The consumer does not take reasonable care of the products whilst in their possession, either prior to or after cancellation. The consumer will be deemed not to have taken reasonable care of the Products if such Products are not kept packaged in their original boxes, with all disks, manuals, cables and other items and that the external packaging is not altered in any way.