- INTERPRETATION
1.1 In these conditions, unless the context requires otherwise
the following words and expressions have the following meanings:
1.1.1 Buyer: the person, firm or company who purchases the Goods
from the Company.
1.2 Company: Thomson Sawmills Limited, registered in England and
Wales with company no. 3179745, registered office: Sylvan House,
Shortthorn Road, Felthorpe, Norwich NR10 4DE.
1.3 Contract: any contract between the Company and the Buyer for
the sale and purchase of the Goods, incorporating these conditions.
1.4 Delivery Point: the place where delivery of the Goods is to
take place.
1.5 Goods: any goods agreed in the Contract to be supplied to
the Buyer by the Company.
1.6 A reference to a particular law is a reference to it as it
is in force for the time being taking account of any amendment,
extension, application or re-enactment and includes any subordinate
legislation for the time being in force made under it.
1.7 Words in the singular include the plural and in the plural
include the singular.
1.8 A reference to one gender includes a reference to the other
gender.
1.9 Condition headings do not affect the interpretation of these
conditions.
- APPLICATION OF TERMS AND CONDITIONS
2.1 Subject to condition 2.3 the Contract shall be on these conditions
to the exclusion of all other terms and conditions.
2.2 No terms or conditions endorsed on, delivered with or contained
in the Buyer's purchase order, confirmation of order, specification
or other document shall form part of the Contract simply as a
result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company's sales and any
variation to these conditions and any representations about the
Goods shall have no effect unless expressly agreed in writing
and signed by the Company. The Buyer acknowledges that it has
not relied on any statement, promise or representation made or
given by or on behalf of the Company which is not set out in the
Contract. Nothing in this condition shall exclude or limit the
Company's liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer
from the Company shall be deemed to be an offer by the Buyer to
buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted
by the Company until a written acknowledgement of order is issued
by the Company or (if earlier) the Company delivers the Goods
to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any
applicable specification are complete and accurate.
- DESCRIPTION
3.1 The quantity and description of the Goods shall be as set
out in the Company's quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications
and advertising issued by the Company and any descriptions or
illustrations contained in the Company's catalogues or brochures
are issued or published for the sole purpose of giving an approximate
idea of the Goods described in them. They shall not form part
of the Contract and this is not a sale by sample.
3.3 If the Company gives an estimate of the quantity of Goods
required this is a guideline only. The Buyer is responsible for
ensuring it orders the correct quantity.
3.4 If Goods are prepared in accordance with the Buyer’s
specifications or instructions the Buyer must then ensure that
the specifications or instructions are accurate. The Buyer must
ensure that goods prepared in accordance with those specifications
or instructions will be fit for the purpose for which the Buyer
intends to use them.
3.5 The Company reserves the right to make minor changes in the
specification of the goods without prior notification to the Buyer.
- DELIVERY
4.1 The Company shall deliver the Goods to the Delivery Point
or to such other place of delivery as is agreed by the Company
in writing prior to delivery of the Goods.
4.2 Any dates specified by the Company for delivery of the Goods
are intended to be an estimate and time for delivery shall not
be made of the essence by notice. If no dates are so specified,
delivery shall be within a reasonable time.
4.3 Subject to the other provisions of these conditions the Company
shall not be liable for any direct, indirect or consequential
loss (all three of which terms include, without limitation, pure
economic loss, loss of profits, loss of business, depletion of
goodwill and similar loss), costs, damages, charges or expenses
caused directly or indirectly by any delay in the delivery of
the Goods (even if caused by the Company's negligence).
4.4 The Company may deliver the Goods by separate instalments.
Each separate instalment shall be invoiced and paid for in accordance
with the provisions of the Contract. Each instalment shall be
a separate Contract and no cancellation or termination of any
one Contract relating to an instalment shall entitle the Buyer
to repudiate or cancel any other Contract or instalment.
4.5 The Company will not deliver the Goods if it would be unsafe,
unlawful or unreasonably difficult to do so, or if the Delivery
Point or access to it are unsuitable for the Company’s vehicle.
The Company will deliver the Goods to the nearest good hard surface
on or at the Delivery Point.
- NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by the
Company on despatch from the Company's place of business shall
be conclusive evidence of the quantity received by the Buyer on
delivery unless the Buyer can provide conclusive evidence proving
the contrary.
5.2 Any liability of the Company for non-delivery of the Goods
shall be limited to replacing the Goods within a reasonable time
or issuing a credit note at the pro rata Contract rate against
any invoice raised for such Goods.
- RISK/TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Delivery takes place at the Company’s premises (if the
Buyer is collecting the Goods or arranging carriage); or at the
Buyer’s premises or designated Delivery Site (if the Company
is arranging carriage).
6.3 Ownership of the Goods shall not pass to the Buyer until the
Company has received in full (in cash or cleared funds) all sums
due to it in respect of the Goods; and all other sums which are
or which become due to the Company from the Buyer on any account.
6.4 Until ownership of the Goods has passed to the Buyer, the
Buyer shall hold the Goods on a fiduciary basis as the Company's
bailee; store the Goods (at no cost to the Company) separately
from all other goods of the Buyer or any third party in such a
way that they remain readily identifiable as the Company's property;
not destroy, deface or obscure any identifying mark or packaging
on or relating to the Goods; and maintain the Goods in satisfactory
condition and keep them insured on the Company's behalf for their
full price against all risks to the reasonable satisfaction of
the Company. On request the Buyer shall produce the policy of
insurance to the Company.
6.5 The Buyer may resell the Goods before ownership has passed
to it solely on the following conditions: any sale shall be effected
in the ordinary course of the Buyer's business at full market
value; and any such sale shall be a sale of the Company's property
on the Buyer's own behalf and the Buyer shall deal as principal
when making such a sale.
6.6 The Buyer's right to possession of the Goods shall terminate
immediately if: the Buyer has a bankruptcy order made against
him or makes an arrangement or composition with his creditors,
or otherwise takes the benefit of any statutory provision for
the time being in force for the relief of insolvent debtors, or
(being a body corporate) convenes a meeting of creditors (whether
formal or informal), or enters into liquidation (whether voluntary
or compulsory) except a solvent voluntary liquidation for the
purpose only of reconstruction or amalgamation, or has a receiver
and/or manager, administrator or administrative receiver appointed
of its undertaking or any part thereof, or documents are filed
with the court for the appointment of an administrator of the
Buyer or notice of intention to appoint an administrator is given
by the Buyer or its directors or by a qualifying floating charge
holder (as defined in paragraph 14 of Schedule B1 to the Insolvency
Act 1986), or a resolution is passed or a petition presented to
any court for the winding-up of the Buyer or for the granting
of an administration order in respect of the Buyer, or any proceedings
are commenced relating to the insolvency or possible insolvency
of the Buyer; or the Buyer suffers or allows any execution, whether
legal or equitable, to be levied on his/its property or obtained
against him/it, or fails to observe or perform any of his/its
obligations under the Contract or any other contract between the
Company and the Buyer, or is unable to pay its debts within the
meaning of section 123 of the Insolvency Act 1986 or the Buyer
ceases to trade; or the Buyer encumbers or in any way charges
any of the Goods.
6.7 The Buyer must inform the Company immediately if the Buyer
becomes insolvent.
6.8 The Company shall be entitled to recover payment for the Goods
notwithstanding that ownership of any of the Goods has not passed
from the Company.
6.9 The Buyer grants the Company, its agents and employees an
irrevocable licence at any time to enter any premises where the
Goods are or may be stored in order to inspect them, or, where
the Buyer's right to possession has terminated, to recover them.
6.10 Where the Company is unable to determine whether any Goods
are the goods in respect of which the Buyer's right to possession
has terminated, the Buyer shall be deemed to have sold all goods
of the kind sold by the Company to the Buyer in the order in which
they were invoiced to the Buyer.
6.11 On termination of the Contract, howsoever caused, the Company's
(but not the Buyer's) rights contained in this condition 6 shall
remain in effect.
- CANCELLATION
7.1 The Company may at any time prior to any Goods being delivered
cancel the order for those Goods without any liability for any
loss caused by or resulting from such cancellation.
7.2 The Buyer may not cancel the order unless the Company agrees
in writing.
7.3 If the order is cancelled (for any reason) the Buyer is liable
to pay the Company for all stock (finished or unfinished) that
the Company holds (or to which the Company is committed) for the
order.
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- PRICE
8.1 Unless otherwise agreed by the Company in writing, the price
for the Goods shall be the price set out in the Company's quotation.
8.2 The Company’s quotations are valid for 30 days.
8.3 The price for the Goods shall be exclusive of any value added
tax and all costs or charges in relation to packaging, loading,
unloading, carriage and insurance, all of which amounts the Buyer
shall pay in addition when it is due to pay for the Goods.
8.4 VAT will be charged at the rate applying at the time of delivery.
8.5 At any time before delivery the Company may adjust the price
to reflect any increase in its costs of supplying the goods.
- PAYMENT
9.1 The Buyer is to pay the Company in cash on or before the delivery
or otherwise in cleared funds, unless the Buyer has an approved
credit account with the Company.
9.2 If the Buyer has an approved credit account with the Company,
subject to condition 8.5, payment of the price for the Goods is
due in pounds sterling on the last working day of the month following
the month in which the Goods are delivered or deemed to be delivered.
9.3 Time for payment shall be of the essence.
9.4 No payment shall be deemed to have been received until the
Company has received cleared funds.
9.5 All payments payable to the Company under the Contract shall
become due immediately on its termination despite any other provision.
9.6 The Buyer shall make all payments due under the Contract in
full without any deduction whether by way of set-off, counterclaim,
discount, abatement or otherwise unless the Buyer has a valid
court order requiring an amount equal to such deduction to be
paid by the Company to the Buyer.
9.7 If the Buyer fails to pay the Company any sum due pursuant
to the Contract, the Buyer shall be liable to pay interest to
the Company on such sum from the due date for payment at the annual
rate of 3% above the base lending rate from time to time of HSBC
Bank plc, accruing on a daily basis until payment is made, whether
before or after any judgment. The Company reserves the right to
claim interest under the Late Payment of Commercial Debts (Interest)
Act 1998.
9.8 If the Buyer fails to pay the Company on the due date for
payment the Company may suspend or cancel future deliveries to
the Buyer and may cancel any discount offered to the Buyer.
- QUALITY
10.1 The Company warrants that (subject to the other provisions
of these conditions) on delivery the Goods shall be of satisfactory
quality within the meaning of the Sale of Goods Act 1979.
10.2 The Company gives no warranty and excludes any warranty,
term or condition that would otherwise be implied as to the quality
of the goods or their fitness for any purpose even if such purpose
has been made known to the Company.
10.3 The Company gives no warranty or guarantee as to the quality
of any Goods or the effectiveness of any chemical treatment carried
out on any of the Goods supplied to the Buyer.
10.4 The Buyer must inspect the Goods on delivery.
10.5 The Company shall not be liable for a breach of the warranty
in condition 10.1 unless: the Buyer gives written notice of the
defect to the Company, and, if the defect is as a result of damage
in transit to the carrier, within 3 days of the time when the
Buyer discovers or ought to have discovered the defect; and the
Company is given a reasonable opportunity after receiving the
notice of examining such Goods, including access to the Buyer’s
premises and product samples.
10.6 The Company shall not be liable for a breach of the warranty
in condition 10.1 if: the Buyer makes any further use of such
Goods after giving such notice; or the defect arises because the
Buyer failed to follow the Company's oral or written instructions
as to the storage, installation, commissioning, use or maintenance
of the Goods or (if there are none) good trade practice; or the
Buyer alters or repairs such Goods without the written consent
of the Company.
10.7 Subject to condition 10.5 and condition 10.6, if any of the
Goods do not conform with the warranty in condition 10.1 the Company
shall at its option repair or replace such Goods (or the defective
part) or refund the price of such Goods at the pro rata Contract
rate provided that, if the Company so requests, the Buyer shall,
at the Company's expense, return the Goods or the part of such
Goods which is defective to the Company.
10.8 If the Company complies with condition 10.7 it shall have
no further liability for a breach of the warranty in condition
10.1 in respect of such Goods.
10.9 Any Goods replaced shall belong to the Company.
- LIMITATION OF LIABILITY
11.1 Subject to conditions 4, 5 and 9, the following provisions
set out the entire financial liability of the Company (including
any liability for the acts or omissions of its employees, agents
and sub-contractors) to the Buyer in respect of: any breach of
these conditions; any use made or resale by the Buyer of any of
the Goods, or of any product incorporating any of the Goods; and
any representation, statement or tortious act or omission including
negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute
or common law (save for the conditions implied by section 12 of
the Sale of Goods Act 1979) are, to the fullest extent permitted
by law, excluded from the Contract.
11.3 Nothing in these conditions excludes or limits the liability
of the Company: for death or personal injury caused by the Company's
negligence; or under section 2(3), Consumer Protection Act 1987;
or for any matter which it would be illegal for the Company to
exclude or attempt to exclude its liability; or for fraud or fraudulent
misrepresentation.
11.4 Subject to condition 11.1 and condition 11.3
the Company's total liability in contract, tort (including negligence
or breach of statutory duty), misrepresentation, restitution or
otherwise, arising in connection with the performance or contemplated
performance of the Contract shall be limited to the Contract price;
and the Company shall not be liable to the Buyer for loss of profit,
loss of business, or depletion of goodwill in each case whether
direct, indirect or consequential, or any claims for consequential
compensation whatsoever (howsoever caused) which arise out of
or in connection with the Contract.
- ASSIGNMENT
12.1 The Company may assign the Contract or any part of it to
any person, firm or company.
12.2 The Buyer shall not be entitled to assign the Contract or
any part of it without the prior written consent of the Company.
- FORCE MAJEURE
13.1 The Company reserves the right to defer the date of delivery
or to cancel the Contract or reduce the volume of the Goods ordered
by the Buyer (without liability to the Buyer) if it is prevented
from or delayed in the carrying on of its business due to circumstances
beyond the reasonable control of the Company including, without
limitation, acts of God, governmental actions, war or national
emergency, acts of terrorism, protests, riot, civil commotion,
fire, explosion, flood, epidemic, lock-outs, strikes or other
labour disputes (whether or not relating to either party's workforce),
or restraints or delays affecting carriers or inability or delay
in obtaining supplies of adequate or suitable materials, provided
that, if the event in question continues for a continuous period
in excess of 90 days, the Buyer shall be entitled to give notice
in writing to the Company to terminate the Contract.
- GENERAL
14.1 Each right or remedy of the Company under the Contract is
without prejudice to any other right or remedy of the Company
whether under the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal
or administrative body of competent jurisdiction to be wholly
or partly illegal, invalid, or unenforceable the remaining provisions
of the Contract and the remainder of such provision shall continue
in full force and effect.
14.3 Failure or delay by the Company in enforcing or partially
enforcing any provision of the Contract shall not be construed
as a waiver of any of its rights under the Contract.
14.4 Any waiver by the Company of any breach of, or any default
under, any provision of the Contract by the Buyer shall not be
deemed a waiver of any subsequent breach or default and shall
in no way affect the other terms of the Contract.
14.5 The parties to the Contract do not intend that any term of
the Contract shall be enforceable by virtue of the Contracts (Rights
of Third Parties) Act 1999 by any person that is not a party to
it.
14.6 The formation, existence, construction, performance, validity
and all aspects of the Contract shall be governed by English law
and the parties submit to the exclusive jurisdiction of the English
courts.
- COMMUNICATIONS
15.1 All communications between the parties about the Contract
shall be in writing and delivered by hand or sent by pre-paid
first class post or sent by fax: (in case of communications to
the Company) to The Sawmill, Holt Road, Felthorpe, Norwich, NR10
4DB or such changed address as shall be notified to the Buyer
by the Company; or (in the case of the communications to the Buyer)
to the registered office of the addressee (if it is a company)
or (in any other case) to any address of the Buyer set out in
any document which forms part of the Contract or such other address
as shall be notified to the Company by the Buyer.
15.2 Communications shall be deemed to have been received if sent
by pre-paid first class post, two days (excluding Saturdays, Sundays
and bank and public holidays) after posting (exclusive of the
day of posting); or if delivered by hand, on the day of delivery;
or if sent by fax on a working day prior to 4.00 pm, at the time
of transmission and otherwise on the next working day.
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