Terms & Conditions of Sale
1. Interpretation.
In these Conditions:
‘Buyer ’ means the person who accepts a quotation from the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller..‘Goods ’ means the goods ((including any installment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions.‘Seller ’ means Dick Brothers Forestry Limited and or subsidiaries..
‘Conditions ’ means the standard terms and conditions of sale set out in this document and ((unless the context otherwise requires)includes any special terms and conditions agreed in Writing between the Buyer and the Seller.
‘Contract ’ means the contract for the sale of the Goods..
‘Writing ’ includes facsimile transmission and comparable means of communication.
1.1 Any reference in these Conditions to any provision of a statue shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the sale.
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representative of the Buyer and the Seller.
2.3 The Seller ’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the buyer ’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 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 the Seller shall be subject to correction without any liability on the part of the Seller.
2.6 Any quotation is given on the basis that no contract will come into existence until the Seller dispatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 28 days only from its date, provided that the Seller has not previously withdrawn it.
3. Orders and specifications.
3.1 No order submitted by the Buyer shall be deemed to be accepted by the seller unless and until confirmed in Writing by the Seller ’s authorised representative or (if earlier)when the Seller delivered the Goods to the Buyer.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification)submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to provide the Goods in accordance with such items.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller ’s quotation (if accepted by the Buyer)or the Buyer ’s order (if accepted by the Seller)all drawings, descriptive matter, specifications and advertising issued by the Seller and any description or illustration contained in the Seller ’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract.
3.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or where the Goods are to be supplied to the Seller ’s specification, which do not materially affect their quality or performance.
3.5 No order which has been accepted by the Seller or Goods provided pursuant to such order maybe cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit),costs (including the cost of all labour and material used),damages, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the Goods.
4.1 The price of the Goods shall be the Seller ’s quoted price, or where no price has been quoted (or a quoted price is no longer valid),the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply. All prices quoted are valid for 28 days only until or earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture),any change in delivery dates, quantities or specification for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller
agrees to deliver the Goods otherwise than at the Seller ’ premises, the Buyer shall be liable to pay the Seller ’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax or other applicable tax, which the Buyer shall be additionally liable to pay to the Seller.
4.5 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
5. Terms of payment.
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be)the Seller has tendered delivery of the Goods.
5.2 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3 5.3.1 cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller)as the Seller may think fit notwithstanding any purported appropriation by the Buyer);and l plc.
5.3.3 Charge the Buyer interest (both before and after any judgment)on the amount unpaid, at the rate of two percent per annum above Lloyds TSB Bank plc ’ s base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6. Delivery.
6.1 Delivery of the Goods shall be made by the buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or ,if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place. The Buyer will provide at its expense adequate and appropriate equipment and manual labour for unloading the Goods.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods (or any installment)for any reason other than any cause beyond the Seller ’s reasonable control or the Buyer ’s fault, and the Seller is accordingly liable to the Buyer, the Seller ’s liability shall be limited to the excess (if any)of the cost to the Buyer (in the cheapest available market)of similar goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer ’s reasonable control or by reason of the Seller ’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 Store the Goods until actual delivery and charge the Buyer for the reasonable cost (including insurance)of storage; or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract. If the Seller delivers to the Buyer a quality of Goods of up to 10%more or less than the quantity accepted by the Buyer shall not be entitled to object or reject the Goods or any of them by reason of surplus or shortfall and shall pay for such Goods at the pro-rata contract rate.
7. Risk and property.
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Seller ’s premises, at the time when the Seller notifies the Buyer that the goods are available for collections: or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller ’s premises, at the time of delivery or, if the buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2.Legal Title in the goods shall not pass to the Buyer until all sums due on the Seller’s account have been paid. If, notwithstanding that the property in the goods has not passed to the Buyer, the Buyer shall sell the goods in such manner as to pass to a third party a valid title to the goods, the Buyer shall hold the proceeds of such sale on trust for the Seller. The Buyer agrees that prior to the payment of the whole price of the goods the Seller may at any time enter upon the Buyer’s premises and remove the goods there from and that prior to such payment the Buyer shall keep the goods separate and identifiable for this purpose. Nothing herein shall constitute the Buyer the Agent of the Seller for the purposes of any such sub-sale. Notwithstanding that property in the goods shall not pass to the Buyer save as provided above, the goods shall be at the risk of the Buyer from the time of collection by or delivery to him of the goods or after expiration of the rent-free period referred to below, whichever is earlier. Goods will be stored rent free from the date for collection or delivery (if any is agreed upon )or 14 days from the date of this contract or the date when goods are available for collection, whichever is the later, after which the Customer shall pay rent at the rate charged by Public Dock Authorities in the area. Any delay caused by the unreasonable act or default of either party to rail or road transport or craft furnished by the other to be for the account of the party causing delay. Notwithstanding the preceding provisions of this clause, the Seller may, at his sole option and at any time by notice in writing to the Buyer, transfer the property in the goods to him.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller s fiduciary agent and bailee, and shall keep the goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller ’s property ,but shall be entitled to resell or use the goods in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold),the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the buyer fails to do so forth with, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller)forthwith become due and payable.
8. Warranties and liability.
8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 14 days from the date of their initial use or 14 days from delivery, whichever is the first to expire.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer:
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller ’s instructions (whether oral or in writing),misuse or alteration or repair of the Goods without the seller ’s approval ’
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee)if the total price for the Goods has not been paid by the due date for payment;
8.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the unfair Contract Terms Act 1977),All warranties, conditions or other terms implied by statue or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (restrictions on Statement) Order 1976)the statutory rights of the Buyer are not affected by these Conditions.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or failure to correspond with specification shall (whether or not delivery is refused by the Buyer)be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection)within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the contract.
8.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question)free of charge, at the Seller ’s sole discretion or refund to the Buyer the price of the Goods (or proportionate part of the price),but the Seller shall have no further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by the Seller ’s negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent),or any implied warranty, condition or other term ,or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss or profit or otherwise),costs, expense or other claim for compensation whatsoever (whether caused by negligence of the Seller, its employees or agents or otherwise)which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
8.8 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform any of the Seller ’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller ’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control;
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 War or threat of war, sabotage, insurrection, civil disturbances or requisition;
8.8.3 Acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.8.4 Import or export regulations or embargoes;
8.8.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party)
8.8.6 Difficulties in obtaining raw material, labour, fuel, parts or machinery;
8.8.7 Power failure or breakdown in machinery;
9. Default and Insolvency of Buyer.
9.1 This clause applies if:
9.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm)becomes bankrupt or (being a company)becomes subject to an administration order or goes into liquidation (otherwise than for the purposes or amalgamation or reconstruction);or
9.1.2 an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.1.5 The Buyer shall be in breach of any of its obligations under the Contract or any other contract to which the conditions apply.
9.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. Export terms.
In these Conditions incoterms means the international rules for the interpretation of trade terms of the international Chamber of Commerce as in force at the data when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of incoterms and these Conditions, the latter shall prevail.
10.1 Where the goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
10.2 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country or destination and for the payment of any duties on them.
10.4 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered FOB the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
10.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods, which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
10.6 Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in acceptance to the Seller or if the Seller has agreed in Writing on or before acceptance of the Buyer ’s order to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 60 days after sight to the order of the Seller at such branch of Barclays Bank plc in England as may be specified in the bill of exchange.
11. General.
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 No waiver by the Seller of any breach of the contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
11.4 The Contract shall be governed by and construed in all respect in accordance with the law of England, and the buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
