Terms & Conditions
These Terms and Conditions ("Terms”) apply to the supply of all products by VistaGreen Limited (incorporated in England under number 09356464 with registered office at 58 High Street Top Floor, London, SW19 5EE, United Kingdom) (VistaGreen).
By placing an Order, the Customer agrees to be bound by these Terms to the exclusion of all other terms and conditions, including any referenced on the Customer’s documentation.
The Customer’s attention is drawn in particular to clause 15.
Contract: the contract for the supply of the Products which is subject to these Terms and comprised as set out in clause 2.
Contract Price: the price agreed for the Products as stated in the Order Confirmation and including any agreed Expenses.
Customer's Premises: the Customer’s trading address as set out in the Order Form.
Delivery Note: a document produced by VistaGreen or the appointed carrier of the relevant Products to the Customer at the Delivery Point.
Delivery Point: the Customer's Premises or such other location as the Customer specifies on the Order Form and which has been accepted by VistaGreen in the Order Confirmation.
Expenses: any out-of-pocket costs incurred by VistaGreen in fulfilling an Order which are chargeable as part of the Contract Price, including (without limitation):
(a) postage, packaging, carriage, freight, and handling charges;
(c) currency conversion and banking charges applicable to the payment method used;
(d) value added tax or any other applicable sales tax in the country in which VistaGreen is resident; and
(e) any customs, import or other duties charged in respect of the sale and importation of Products into the country in which the Customer is resident or the Delivery Point is located.
Guarantee Period: the period, as published by VistaGreen or otherwise communicated by VistaGreen to the Customer, for which VistaGreen warrants performance of the Products following installation in accordance with clause 3.
Intellectual Property Rights: all copyright, database rights, topography rights, design rights, trade marks, trade names, utility models, patents, domain names and any other intellectual property rights of a similar nature (whether or not registered) subsisting anywhere in the world in or associated with the Products.
Invoice: an invoice raised by VistaGreen in accordance with clause 6.3.
List Prices: the prices for the Products provided by VistaGreen from time to time as may be varied in accordance with clause 6.2, but excluding any Expenses.
Order: an order for Products submitted by the Customer to VistaGreen and accepted by VistaGreen in accordance with clause 2.4.
Order Confirmation: an order confirmation document sent by VistaGreen to the Customer, agreeing to fulfil the Order and identifying the relevant Order by its Order Reference.
Order Form: a written order in a form reasonably acceptable to VistaGreen sent by the Customer to VistaGreen, requesting the supply of Products or confirming an oral order for Products.
Order Reference: the reference applied to an Order Form by VistaGreen on receipt of that Order Form.
Products: artificial green wall panels and installations and such other products as may be sold by VistaGreen from time to time.
Specification: the specification of the Products published by VistaGreen on its website or otherwise made available to the Customer.
1.2 Reference to a clause, paragraph or Schedule is to a clause, paragraph or Schedule of or to the Contract, unless the context requires otherwise.
1.3 A reference to one gender includes a reference to the other gender.
1.4 Words in the singular include the plural and in the plural include the singular.
1.5 A reference to a person includes an incorporated or unincorporated body.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.7 Unless the context otherwise requires, the words including and include and words of similar effect shall not be deemed to limit the general effect of the words which precede them.
1.8 The headings in the Contract are for ease of reference only and shall not affect its construction or interpretation.
2.1 The Contract for the supply of the Products shall be comprised of:
(a) the Specifications;
(b) the Order Confirmation; and
(c) these Terms.
In the event of any contradiction between the above documents: the Specifications take priority over the Order Confirmation; the Order Confirmation takes priority over these Terms.
2.2 An Order shall be treated as an offer by the Customer to contract with VistaGreen, but shall not be binding on the Customer until accepted by VistaGreen in accordance with clause 2.4. VistaGreen may, at its sole discretion, accept amendments to an Order after acceptance.
2.3 VistaGreen shall apply an Order Reference to each Order received from the Customer and inform the Customer of the Order Reference as soon as reasonably practicable. Each party shall use the Order Reference to identify each Order from the time at which the Order Reference is known to it.
2.4 VistaGreen shall, at its discretion, accept the Order using an Order Confirmation and such Order Confirmation shall be treated as acceptance of the Customer's Order.
2.5 VistaGreen shall arrange delivery of the Products in accordance with the Customer's instructions on the Order Form and the provisions of the Contract, provided that the Customer shall be liable to pay for all Expenses incurred by VistaGreen in complying with such instructions. Such Expenses shall be included on the Invoice for the relevant Products.
3.1 VistaGreen warrants that all Products supplied to the Customer pursuant to the Contract will:
All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) other than those expressly set out in the Contract are excluded from the Contract to the fullest extent permitted by law.
3.2 The Customer shall be entitled to reject any quantity of the Products which do not comply with the warranty in clause 3.1(a), provided that any purported rejection is made no later than seven days from the date of delivery in accordance with clause 4.5.
3.3 In the event that any of the Products do not comply with the warranty in clause 3.1(b), VistaGreen shall repair or replace the non-compliant Products at no charge to the Customer (but provided that clause 3.1(b) shall only apply to replacement Products during the original Product Lifetime of the non-compliant Products).
3.4 The warranty set out in clause 3.1(b) is (i) conditional on the Products being installed in the United Kingdom or, if installed elsewhere, in a location where typical weather conditions are equivalent to those prevailing in the United Kingdom (in each case, as averaged over the ten years prior to installation) and (ii) excludes fading within the AATCC Gray Scale for Color Change Rating stated in the Specification. In all other locations, the Product Lifetime is an indication only and is not guaranteed.
3.5 The remedies set out above are the sole remedies for breach of the warranties.
4. DELIVERY OF THE PRODUCTS
4.1 VistaGreen will have fulfilled its contractual obligations in respect of each delivery provided that the quantity actually delivered is no greater than 10% more or less than the quantity specified on the Order Form. The Customer shall pay for the actual quantity delivered.
4.2 Delivery of the Products shall take place at the Delivery Point. Acceptance of any change to the Delivery Point requested by the Customer shall be at VistaGreen's sole discretion and the Customer shall be liable for any additional Expenses incurred by VistaGreen as a result of such change. VistaGreen shall arrange for suitable transport to the Delivery Point. On delivery, VistaGreen (or its appointed carrier) shall provide the Customer with such export documents as are necessary and which the Customer is unable to prepare together with a Delivery Note.
4.3 Delivery or performance dates in relation to the supply by VistaGreen of Products are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery of the Products.
4.4 VistaGreen may effect delivery in one or more instalments.
4.5 The Customer shall, within seven days of the arrival of each delivery of the Products at the Delivery Point, give written notice of rejection to VistaGreen on account of any defect by reason of which the Customer alleges that the Products delivered do not comply with the Warranty and which was apparent on reasonable inspection.
4.6 If the Customer fails to give notice as specified in clause 4.5 then, except in respect of any defect which is not one which would be apparent on reasonable inspection, the Products shall conclusively be presumed to comply with the Warranty and, accordingly, the Customer shall be deemed to have accepted the delivery of the Products in question and VistaGreen shall have no liability to the Customer with respect to that delivery (except in relation to liability for any latent defects).
4.7 If the Customer alleges that any Products are defective, it shall, if so requested by VistaGreen, return the relevant Products (unaltered and unrepaired) to VistaGreen for inspection as soon as possible and at its own risk and expense.
4.8 If the Customer rejects any delivery of the Products which do not comply with the Warranty, VistaGreen shall, within fourteen days of VistaGreen accepting that the Products do not comply with the Warranty:
4.9 VistaGreen's reasonable decision as to whether the Products comply with the Specification shall be final.
5. IMPORT LICENCES
The Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Products as are required from time to time and, if required by VistaGreen, the Customer shall make those licences and consents available to VistaGreen prior to the relevant shipment.
6. PRICES AND PAYMENT
6.1 The Customer shall pay VistaGreen for the Products in accordance with the provisions of this clause 6.
6.2 The List Prices may be varied from time to time by VistaGreen on giving 30 days' notice to the Customer. The Contract Price shall be the latest version of the List Prices for the Products that has been notified to the Customer at least 30 days before the delivery date unless VistaGreen has expressly agreed some other price with the Customer.
6.3 Unless VistaGreen has expressly agreed otherwise, VistaGreen shall invoice the Customer for the Contract Price prior to shipping the Products (when supplied from stock) or manufacturing the Products (when made to order) and the Customer shall pay the invoice in full prior to delivery or manufacturing being commenced (as the case may be)..
6.4 The Customer shall pay to VistaGreen the total amount of each Invoice in pounds sterling by wire transfer to the bank account nominated by VistaGreen in writing within seven days of the date of the relevant Invoice, notwithstanding that delivery may not have taken place and that property in the Products has not passed to the Customer.
6.5 All amounts of money referred to in the Contract shall be interpreted as being amounts exclusive of value added tax, any similar sales tax or any tax that replaces such sales taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to VistaGreen, the Customer shall increase the sum it pays to VistaGreen by the amount necessary to leave VistaGreen with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
6.6 All amounts due to VistaGreen under the Contract shall become due immediately if the Contract is terminated or novated despite any other provision.
6.7 The time for payment shall be of the essence and no payment shall be deemed to have been made until VistaGreen has received payment in cleared funds.
6.8 If the Customer does not make payment on or before the date on which it is due, interest shall be payable on the overdue amount at the rate which is the rate in force pursuant to the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time. Interest shall be payable at this rate both before and after any judgment is made against the Customer until the date on which payment in cleared funds is received in full, including all accrued interest.
6.9 The Customer shall make all payments due under the Contract without any deduction by way of set-off, counterclaim, discount or otherwise.
7. TITLE AND RISK
7.1 Risk in and responsibility for the Products shall pass to the Customer once they have been delivered to the carrier appointed to deliver the Products to the Delivery Point.
7.2 Subject to clause 7.4, ownership of the Products shall not pass to the Customer until VistaGreen has received payment in full of all monies owed by the Customer to VistaGreen.
7.3 Until ownership of the Products passes to the Customer, the Customer shall hold the Products on the following terms:
(a) the Products shall be stored separately from other goods held by the Customer and shall be clearly identifiable as the property of VistaGreen;
(b) the Products shall not be mixed with other goods or altered in any way;
(d) each Product shall be insured for an amount at least equal to its List Price and any proceeds of the insurance policy shall be held on trust for VistaGreen in a separate account in the joint names of VistaGreen and the Customer. The Customer shall not mix the insurance proceeds with any other money or pay the proceeds into an overdrawn bank account. The Customer shall account to VistaGreen for the proceeds accordingly and make good any shortfall in the amount due to VistaGreen.
7.4 The Customer may resell (but may not deal in any other way with) the Products to a third party and pass good title to that third party on the following terms:
The Customer shall account to VistaGreen for the proceeds accordingly and shall make good any shortfall in the amount due to VistaGreen.
7.5 The Customer shall lose its rights to possession and resale of the Products if:
7.6 The Customer grants to VistaGreen an irrevocable licence for VistaGreen, its agents and employees to enter any premises where the goods of the Customer are stored to ascertain whether any Products are stored there and to inspect, count and recover them.
7.7 The Customer shall register any necessary charge over money or goods and take such other steps as are necessary to give effect to this clause 7 at the request of VistaGreen.
8.1 VistaGreen may, immediately on giving written notice to the Customer:
8.2 VistaGreen may, on giving written notice to the Customer, elect to alter the Specification of any of the Products otherwise than in accordance with clause 8.1(b). Where the Customer has placed an Order and VistaGreen has accepted that Order using an Order Confirmation, and the Specification of any of the Products contained in that Order are varied in accordance with this clause 8.2, the Customer may cancel the part of the Order that relates to the varied Products only.
8.3 VistaGreen may, on giving written notice to the Customer, amend the Order Confirmation to exclude from the Contract one or more of the Products as it thinks fit otherwise than in accordance with clause 8.1(a). Where the Customer has placed an Order and VistaGreen has accepted that Order using an Order Confirmation, and any of the Products contained in that Order are excluded from the Contract, the Order shall automatically be varied to exclude such excluded Products.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The Customer acknowledges that:
9.2 The Customer shall not repackage the Products and/or remove any copyright notices, confidential or proprietary legends or identification or safety warnings from the Products or their packaging.
9.3 The Customer shall not use (other than pursuant to the Contract) or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which VistaGreen owns or claims rights in anywhere in the world.
9.4 If at any time it is alleged that the Products infringe the rights of any third party or if, in VistaGreen's reasonable opinion, such an allegation is likely to be made, VistaGreen may at its option and its own cost:
9.5 The Customer shall promptly and fully notify VistaGreen of:
9.6 The Customer agrees (at VistaGreen's request and expense) to do all such things as may be reasonably required to assist VistaGreen in taking or resisting any proceedings in relation to any infringement or claim referred to in clause 9.5.
9.7 In the event of any claim, proceeding or suit by a third party against the Customer alleging an infringement of any Intellectual Property Right connected with the Products, VistaGreen shall defend the Customer at VistaGreen's expense, subject to:
9.8 VistaGreen shall reimburse the Customer with an amount equal to any cost, expense or legal fees incurred at VistaGreen's written request or authorisation and shall indemnify the Customer against any liability assessed against the Customer by final judgement on account of an infringement described in clause 9.7.
10.1 Each party undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other which it has obtained or received as a result of discussions leading up to entry into the Contract, or which it has obtained during the course of the Contract, except any information that is:
10.2 Each party undertakes to the other to take all steps that are necessary from time to time to ensure compliance with the provisions of this clause 10 by its employees, agents and subcontractors.
11.1 Either party may terminate the Contract by giving written notice to the other party if any of the following events occurs:
11.2 On termination or novation of the Contract for any reason and subject as otherwise provided in the Contract to any rights or obligations that have accrued before termination, neither party shall have any further obligation to the other under the Contract.
12. FORCE MAJEURE
12.2 A party claiming to be unable to perform its obligations under the Contract (either on time or at all) in any of the circumstances set out in clause 12.1 shall notify the other party of the nature and extent of the circumstances in question as soon as practicable.
12.3 This clause 12 shall cease to apply when such circumstances have ceased to have effect on the performance of the Contract and the party affected shall give notice to the other party that the circumstances have ceased.
12.4 If any circumstance relied on by either party for the purposes of this clause 12 continues for more than three months, the other party shall be entitled to terminate the Contract [by giving one month's notice].
13. ENTIRE AGREEMENT
13.1 The Contract constitutes the entire agreement between the parties in connection with its subject matter and supersedes any previous agreement, warranty, statement, representation, understanding or undertaking (in each case whether written or oral) given or made before the date the Contract by or on behalf of the parties and relating to its subject matter.
13.2 Neither party has relied on any statement, representation, agreement, understanding or promise made by the other except as expressly set out in the Contract.
14. WAIVER OF RIGHTS BASED ON MISREPRESENTATION
14.1 Each party unconditionally waives any rights it may have to claim damages against the other on the basis of any oral or written statement made by the other or by its legal advisers (whether made carelessly or not) that is not set out or referred to in the Contract (or for breach of any warranty given by the other not so set out or referred to), unless such statement or warranty was made or given fraudulently.
14.2 Each party unconditionally waives any rights it may have to seek to rescind the Contract on the basis of any statement made by the other (whether made carelessly or not), unless such statement was made fraudulently.
15. LIMITATION OF LIABILITY
15.1 VistaGreen's total liability in contract, tort (including negligence), misrepresentation or otherwise in relation to the Contract shall be limited to the List Price of the Products to which the claim relates.
15.2 VistaGreen shall not be liable to the Customer for:
a) any indirect, special or consequential loss or damage; or
15.3 VistaGreen shall not be liable for any losses arising from the Customer's subsequent use or misuse of the Products including (without limitation):
15.4 VistaGreen is not liable for a defect in the Products unless it is notified to VistaGreen within seven days of the date of delivery or, if the defect would not be apparent on reasonable inspection, within three months of the date of delivery.
15.5 The Customer acknowledges and agrees that the List Prices reflect the limitations of liability contained in the Contract.
The Customer shall not, without the prior written consent of VistaGreen, assign, transfer, charge or deal in any other similar manner with the Contract or its rights or any part of them under the Contract, subcontract any or all of its obligations under the Contract, or purport to do any of the same.
17.1 Subject as may be provided elsewhere in the Contract, all disputes, differences or questions arising in relation to the Contract shall be referred in the first instance to a senior manager of each party, who shall meet together and attempt to settle the dispute between themselves (acting in good faith) within one calendar month.
17.2 If the senior managers fail to resolve the dispute, it shall be referred to the managing director of each of VistaGreen and the Customer, who shall meet together and attempt to settle the dispute between themselves (acting in good faith) within one calendar month.
17.3 If the managing directors fail to resolve the matter within one calendar month, then either party may refer the dispute to an appropriate court or tribunal, or may (at its discretion) opt for mediation (in which case such an election shall bind the other party until a conclusion is made or the mediator rejects the case).
17.4 Any reference to mediation shall be made in accordance with the procedures of [the Centre for Effective Dispute Resolution (CEDR)]. The mediation shall be conducted by a single mediator appointed by the parties or, if the parties are unable to agree on the identity of the mediator within fourteen (14) days after the date of the request that the dispute be resolved by mediation, or if the person appointed is unable or unwilling to act, the mediator shall be appointed by CEDR on the application of either party. The mediation shall be conducted in English at [the offices of CEDR in. Mediation is without prejudice to the rights of the parties to the injunctive relief or to the rights of the parties in any future proceedings.
18. CUMULATIVE REMEDIES
Each right or remedy of the parties under the Contract is without prejudice to any other right or remedy of the parties, whether or not such rights or remedies are set out in the Contract.
19. NO PARTNERSHIP OR AGENCY
Nothing in the Contract shall create, or be deemed to create, a partnership, joint venture or legal relationship of any kind between the parties that would impose liability upon one party for the acts or failure to act of the other party, or authorise either party to act as agent for the other. Save where expressly stated in the Contract, neither party shall have the authority to make representations, act in the name or on behalf of or otherwise bind the other.
The invalidity, illegality or unenforceability of any provision of the Contract, or a provision in any other agreement which is identical to one in the Contract, shall not affect the other provisions and the agreement shall be given effect as if the invalid, illegal or unenforceable provision had been deleted and replaced with a provision with a similar economic effect to that intended by the parties if this can be achieved by another clause.
21. AMENDMENT AND WAIVER
21.1 No variation of the Contract shall be effective unless it is made in writing, refers specifically to the Contract and is signed by both of the parties.
21.2 No waiver of any term, provision or condition of the Contract shall be effective, except where it is clearly made in writing and signed by the waiving party. No waiver of any particular breach of the Contract shall be held to be a waiver of any other or subsequent breach.
21.3 No omission or delay on the part of any party in exercising any right, power or privilege under the Contract shall operate as a waiver by it or of any right to exercise it in future or of any other of its rights under the Contract.
21.4 The rights and remedies arising under, or in connection with, the Contract are cumulative and, except where otherwise expressly provided in the Contract, do not exclude rights and remedies provided by law or otherwise.
22. THIRD PARTY RIGHTS
No person who is not party to the Contract shall have any right to enforce any term of the Contract.
23.1 Any notice or other communication to be given under the Contract shall be in writing and in the English language and may be delivered by hand or sent by pre-paid post (by airmail post if to an address outside the country of posting) or fax to the relevant party at that party's registered office.
23.2 Any notice or document shall be deemed served:
23.3 Notices under the Contract shall not be validly served by e-mail.
24. SURVIVAL OF OBLIGATIONS
Any of the provisions of the Contract that are expressed to take effect in whole or in part on or after termination, or are capable of having effect after termination, shall remain in full force and effect despite termination.
25. GOVERNING LAW AND JURISDICTION
25.1 The Contract shall be governed by and construed in all respects in accordance with English law. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to the Contract.
25.2 Subject to clause 17, the parties submit to the exclusive jurisdiction of the courts of England and Wales.
25.3 It is the Customer's obligation to acquaint itself and to comply with all applicable requirements and restrictions imposed by law or by governmental and other authorities or corporations relating to the possession, use, import, export, or resale of the Products. It is the Customer's obligation to ensure that no Products are exported or imported in violation of the laws of any jurisdiction into or through which the Products are transported during the course of reaching the Delivery Point. Where necessary, the Customer shall inform VistaGreen at a reasonable time before delivery of any documents which it is necessary for VistaGreen to provide in order to allow export of the Products in compliance with the laws of any relevant jurisdiction.