1. DEFINITIONS AND INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:

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;

Contract: the contract between Horizon and the Customer for the sale and purchase of the Goods in accordance with these Conditions;

Customer: the person or firm who purchases the Goods from Horizon;

Force Majeure Event: has the meaning given in clause 11;

Goods: the goods (or any part of them) set out in the Order;

Horizon: the seller of the Goods, Horizon Agricultural Machinery Ltd trading as Horizon (registered in England and Wales with company number 5930757);

Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form or the Customer’s written acceptance of Horizon’s quotation (as the case may be);

Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Horizon.

1.2 Construction. In these Conditions, the following rules apply:

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a party includes its personal representatives, successors or permitted assigns.

1.5 A reference to a statute or statutory provision is a reference to such statute or provision as amended or reenacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.6 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.

1.7 A reference to writing or written includes e-mails.

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 dealing.

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.

2.3 The Order shall only be deemed to be accepted when Horizon issues a written acceptance of the Order (Order Confirmation), at which point the Contract shall come into existence.

2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Horizon (whether made innocently or negligently) which is not set out in the Contract. The Customer agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

2.5 Any samples, drawings, or advertising produced by Horizon and any illustrations contained in Horizon’s catalogues, website, social media content 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.

2.6 A quotation for the Goods given by Horizon shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue and Horizon reserves the right to revise the quotation prior to acceptance of an Order.

3. GOODS

3.1 The Goods are described in the Order Confirmation and any applicable Specification..

3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Horizon against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Horizon in connection with any claim made against Horizon for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Horizon’s use of the Specification. This clause 3.2 shall survive termination of the Contract.

3.3 Horizon reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

4. DELIVERY

4.1 The dates mentioned in any quotation, Order, acceptance form, Order Confirmation or elsewhere for delivery of the Goods are approximate only and time for delivery is not of the essence and shall not be made so by the service of any notice.

4.2 Horizon accepts no liability for failure to deliver on or by a particular date or dates.

4.3 Horizon shall deliver the Goods to the location set out in the Order Confirmation or such other location as the parties may agree in writing (Delivery Location) at any time after Horizon notifies the Customer that the Goods are ready. For the avoidance of doubt the Delivery Location could be Horizon’s premises, the Customer’s premises or another location.

4.4 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

4.5 Horizon 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 Horizon with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If Horizon fails to deliver the Goods, its liability shall be limited to the repayment of any advance payments made in respect of the Goods and the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Horizon shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Horizon with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.7 If the Customer fails to take (or accept) delivery of the Goods within five Business Days of Horizon notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Horizon’s failure to comply with its obligations under the Contract:

4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day after the day on which Horizon notified the Customer that the Goods were ready; and

4.7.2 Horizon shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.8 If ten Business Days after the day on which Horizon notified the Customer that the Goods were ready for delivery the Customer has not taken (or accepted) actual delivery of them, Horizon may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods (taking into account any advance payments made by the Customer in respect of the Goods).

5. QUALITY

5.1 Please refer to Horizon’s Warranty Policy for the terms of the warranty given by Horizon in respect of the Goods.

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:

6.2.1 Horizon has received payment in full including any value added tax (VAT) payable (in cleared funds) for the Goods and any other goods or services that Horizon has supplied to the Customer in respect of which payment has become due; or

6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer immediately before the time at which resale by the Customer occurs.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Horizon’s property;

6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

6.3.4 notify Horizon immediately if it becomes subject to any of the events listed in clause 8.2; and

6.3.5 give Horizon such information relating to the Goods as Horizon may require from time to time.

6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business.

6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or Horizon reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Horizon may have, Horizon may at any time require the Customer to deliver up the Goods and, 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, or, if no price is quoted, the price set out in Horizon’s published price list in force as at the date of delivery.

7.2 Horizon 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:

7.2.1 any factor beyond Horizon’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs, transport and shipping costs);

7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give Horizon adequate or accurate information or instructions.

7.3 Unless otherwise stated by Horizon, the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

7.4 The price of the Goods is exclusive of amounts in respect of VAT. The Customer shall, on receipt of a valid VAT invoice from Horizon, pay to Horizon such additional amounts in respect of VAT as are chargeable on the supply of the Goods. The Customer shall pay any other sales taxes, levies, costs or charges in relation to packaging, labelling, loading, unloading, carriage and freight in addition to price for the Goods.

7.5 In respect of Goods which are machine parts or components:

7.5.1 Horizon may invoice the Customer on or at any time after the completion of delivery; and

7.5.2 the Customer shall pay the invoice in full and in cleared funds within 30 calendar days of the date of the invoice (or in accordance with any other terms agreed by Horizon and confirmed in writing to the Customer).

7.6 In respect of Goods which are complete pieces of machinery, unless otherwise agreed in writing with the Customer:

7.6.1 Horizon shall invoice the Customer for the deposit set out in the Order on Order Confirmation and the Customer shall pay the deposit within 7 calendar days of the date of the invoice; and

7.6.2 Horizon shall invoice the Customer for the balance due for the Goods (being the price of the Goods less the deposit) at any time prior to the completion of delivery and the Customer shall pay the balance due for the Goods before delivery of the Goods, and Horizon shall have no obligation to deliver the Goods until such payment has been made.

7.7 Payments shall be made in full and in cleared funds to a bank account nominated in writing by Horizon.

7.8 Time for payment shall be of the essence of the Contract.

7.9 If the Customer fails to make any payment due to Horizon under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%. 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 Customer shall pay the interest together with the overdue amount.

7.10 The Customer shall pay all amounts due under the Contract in full including any bank transfer charges and without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Horizon in order to justify withholding payment of any such amount in whole or in part. Horizon 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 Horizon to the Customer.

7.11 If the Customer terminates the Contract at any time prior to delivery, Horizon reserves the right to retain any deposit received from the Customer in respect of that Contract.

8. CUSTOMER’S INSOLVENCY OR INCAPACITY OR NON-PAYMENT

8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or Horizon reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment, and Horizon notifies the Customer accordingly, then, without limiting any other right or remedy available to Horizon, Horizon may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Horizon without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

8.2 For the purposes of clause 8.1, the relevant events are:

8.2.1 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, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

8.2.2 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;

8.2.3 (being a company) 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, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; or the Customer applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

8.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order;

8.2.5 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

8.2.6 (being a company) 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;

8.2.7 (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;

8.2.8 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;

8.2.9 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 in clause 8.2.1 to clause 8.2.8 (inclusive);

8.2.10 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;

8.2.11 the Customer’s financial position deteriorates to such an extent that in Horizon’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

8.2.12 (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 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. 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 Horizon’s liability for:

9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

9.1.2 fraud or fraudulent misrepresentation;

9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;

9.1.4 defective products under the Consumer Protection Act 1987; or

9.1.5 any matter in respect of which it would be unlawful for Horizon to exclude or restrict liability.

9.2 Subject to clause 9.1:

9.2.1 Horizon shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:

9.2.1.1 loss of profits;

9.2.1.2 loss of anticipated savings;

9.2.1.3 loss of sales or business;

9.2.1.4 loss of agreements or contracts; or

9.2.1.5 any indirect or consequential loss in each case arising under or in connection with the Contract; and

9.2.2 Horizon’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 50 per cent of the price of the Goods ordered under the Contract.

10. INTERNATIONAL CONTRACTS

Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall apply.

10.1 The Customer shall be responsible for obtaining, at its own cost, such import licences and other consents and customs clearance in relation to the Goods as are required from time to time and, if required by Horizon, the Customer shall make those licences and consents available to Horizon prior to the relevant shipment.

10.2 The Customer shall be responsible for payment of any import duties and taxes in relation to the Goods. It shall be the Customer’s responsibility to contact its local customs office for further information before placing an Order.

10.3 It shall be the Customer’s responsibility to comply with all applicable laws and regulations of the country for which the Goods are destined, including any obligation to translate instructions, labelling or packaging. Horizon shall have no liability for any breach by the Customer of any such laws.

10.4 Where the Delivery Location is in the UK, the Customer shall be responsible for obtaining and paying for all export licences and other consents, export duties and taxes and customs clearance in relation to the export of the Goods.

11. 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 or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

12. ASSIGNMENT AND SUBCONTRACTING

12.1 Horizon 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.

12.2 The Customer 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 Horizon.

13. NOTICES

13.1 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 sent by email to the email address of the other party specified in the Order or such other address or email 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, recorded delivery, commercial courier, or e-mail.

13.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.1; if sent by pre-paid first class post or recorded delivery, 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 e-mail, one Business Day after transmission.

13.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

14. SEVERANCE

14.1 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.

14.2 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.

15. WAIVER

15.1 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.

16. THIRD PARTY RIGHTS

16.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.

17. VARIATION

17.1 Except as set out in these Conditions, 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 both parties.

18. GOVERNING LAW AND JURISDICTION

18.1 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 laws of England and Wales, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.