Terms and Conditions
The acceptance of any order resulting from these prices will be subject to the general Conditions of sale printed below. No binding contract shall exist until the Customer’s order has been acknowledged in writing.
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10
1. INTERPRETATION
In these Conditions the following words have the following meanings:
the Customer |
the person(s), firm or company who purchases the Goods from the Company; |
the Company |
Trustspan Timber Engineering Limited (company number 1282127); |
Contract |
any contract between the Company and the Customer for the sale and purchase of Goods, incorporating these Conditions; |
Delivery Point |
the place where delivery of the Goods is to take place under Condition 4; |
Goods |
any Goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them). |
In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
Headings will not affect the construction of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and Conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document will 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 a director of the Company. The Customer 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 will exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Customer from the Company shall be deemed to be an offer (“Offer”) by the Customer to purchase Goods subject to these Conditions.
2.5 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order (“Acknowledgement”) is issued by the Company.
2.6 The Customer must ensure that the terms of its order and any applicable specification in relation to any Goods are complete and accurate prior to any Acknowledgement. Any variation of the required specification for any Goods following an Acknowledgement shall entitle the Company to revise its quotation.
2.7 Any quotation is given on the basis that no Contract will come into existence until the Company despatches an Acknowledgement to the Customer. Subject to Condition
2.6, any quotation is valid for a period of 30 days only from its date (or such longer period as the Company in its absolute discretion approve) provided that the Company has not previously withdrawn it.
3. DESCRIPTION
3.1 The quantity and description of the Goods shall be as set out in the Company’s Acknowledgement.
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 will not form part of this Contract and this is not a sale by sample.
4. DELIVERY
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the time of arrival of the carrier/haulier carrying Goods immediately prior to unloading at the address notified to the Company in the Offer. The Company and/or its carrier will use reasonable endeavours to comply with the Customer’s reasonable directions at the delivery address save that where the Company and/or its carrier consider in their absolute discretion that the condition of the Goods may be prejudiced thereby, the Company and/or its carrier shall be entitled to effect delivery at such other place as it considers reasonable.
4.2 The Customer will take delivery of the Goods within 7 days of the Company giving the Customer notice that the Goods are ready for delivery (“Delivery Period”).
4.3 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 will be within a reasonable time.
4.4 Subject to the other provisions of these Conditions the Company will 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 like 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), nor will any such delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5 If for any reason the Customer will not accept delivery of any of the Goods during the Delivery Period or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisa¬tions then from the end of the Delivery Period:
4.5.1 risk in the Goods will pass to the Customer (including for loss or damage caused by the Company’s negligence);
4.5.2 the Goods will be deemed to have been delivered to the Customer;
4.5.3 the Company may store the Goods until eventual delivery whereupon the Customer will be liable to the Company for all related costs and expenses (including, without limitation, storage and insurance) and;
4.5.4 the Company will after 180 days from the end of the Delivery Period be entitled to dispose of the Goods to any other person as in its absolute discretion it sees fit, and any such sale of the Goods shall be without prejudice to the Company’s right to claim the price of the Goods from the Customer.
4.6 The Customer will provide at its expense at the Delivery Point adequate and appropriate equipment, supervision and manual labour for unloading the Goods from the carrier/haulier. The unloading of the Goods shall be the responsibility of and at the risk of the Customer.
4.7 The Company may deliver the Goods by separate Instalments. Each separate Instalment (“Instalment”) will be invoiced and paid for in accordance with the provisions of the Contract.
4.8 Each Instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an Instalment will entitle the Customer to repudiate or cancel any other Contract or Instalment.
5. NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery in relation to all Goods delivered by the Company to the Customer at such date of despatch unless the Customer can provide conclusive evidence proving the contrary in relation to any Goods despatched from the Company.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replac¬ing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. RISK/TITLE
6.1 Subject to Condition 4.5, the Goods are at the risk of the Customer from the time of delivery. The Customer shall assume risk for the unloading of the Goods even where the Company and/or its carrier has crane facilities for unloading and these are used for unloading.
6.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods (and in the case of Instalments, each and every Instalment); and
6.2.2 all other sums which are or which become due to the Company from the Customer on any account.
6.3 Until ownership of the Goods has passed to the Customer, the Customer must in relation to the Goods (and each and every Instalment of them):
6.3.1 hold them on a fiduciary basis as the Company’s bailee;
6.3.2 store them (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to them; and
6.3.4 maintain them 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 Customer shall produce the policy of insurance to the Company.
6.4 The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Customer’s business at full market value; and
6.4.2 any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
6.5 The Customer’s right to possession of the Goods shall terminate immediately if:
6.5.1 the Customer 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 Customer or notice of intention to appoint an administrator is given by the Customer 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 Customer or for the grant¬ing of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
6.5.2 the Customer 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/perform any of his/its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
6.5.3 the Customer encumbers or in any way charges any of the Goods.
6.6 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.
6.7 The Customer 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 Customer’s right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the Goods in respect of which the Customer’s right to possession has terminated, the Customer will be deemed to have sold all Goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this Condition 6 will remain in effect.
7. PRICE
7.1 Subject to Condition 7.3, the price for the Goods shall be the price set out in the Company’s Acknowledgement.
7.2 The price for the Goods shall be exclusive of any value added tax but shall include all costs or charges in relation to packaging, unloading, carriage and insurance. The Customer will pay all value added tax on the Goods in addition when it is due to pay for the Goods.
7.3 The Company reserves the right to revise quoted prices:
7.3.1 prior to an Acknowledgement; or
7.3.2 after the expiry of 30 days from the date of an Acknowledgement if delivery any the Goods has not occurred before that time,
in the event of (without limitation) any change in the Company’s costs and/or prevailing conditions or any relevant revaluation or devaluation of any currency.
7.4 The Company further reserves the right to vary the price se t out in its Acknowledgement if subsequently the Customers makes any change to the specifications to the Goods.
8. PAYMENT
8.1 Subject to Condition 8.4, payment of the price for the Goods (or any relevant Instalment) and any costs or charges associated therewith is due in pounds sterling on the last working day of the month that follows the month in which the Goods (or any relevant Instalment) are delivered or deemed to be delivered (unless the Customer does not act in the course of a business, in which case all amounts due under any Contract shall be due within 14 days of delivery of any invoice relating to any Goods).
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 Notwithstanding any other provision, all payments payable to the Company under any Contract between the Company and the Customer shall become due immedi¬ately upon:
8.4.1 termination of one or more Contracts; or
8.4.2 any default being made in relation to payment of any invoice in relation to any Goods.
8.5 The Customer shall make all payments due under a Contract to the Company in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
8.6 Subject to Condition 8.7, the Company reserves the right to claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998 (“the 1998 Act”) in relation to any amounts due under a Contract.
8.7 If the Customer who is party to any Contract does not act in the course of a business for the purposes of Section 2(1) of the 1998 Act, then if such Customer fails to pay the Company any sum due pursuant to a Contract the Customer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 2.5% above the base lending rate from time to time of Lloyds TSB Bank Plc or interest at 8% per annum pursuant to Section 69 of the County Courts Act 1984 (whichever is the greater), accruing on a daily basis until payment is made, whether before or after any judgment.
8.8 If any default is made by the Customer in paying any sums due to the Company under any Contract, the Company reserves the right to levy an administration charge in relation to its time and resources spent securing such payment(s) in accordance with its current price list as at the date of delivery.
9. QUALITY
9.1 The Company warrants that (subject to the other provisions of these Conditions) upon delivery the Goods (but not any packaging) will:
9.1.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
9.1.2 be reasonably fit for their normal and usual purpose; and
9.1.3 be reasonably fit for any particular purpose for which the Goods are being bought only if the Customer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgement of the Company.
9.2 The Company shall not be liable for a breach of the warranties in Condition 9.1 unless:
9.2.1 the Customer 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 7 days of delivery or of the time when the Customer ought reasonably to have discovered the defect; and
9.2.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's reasonable cost for the examination to take place there.
9.3 The Company shall not be liable for a breach of the warranties in Condition 9.1 if:
9.3.1 the Customer makes any further use of such Goods after giving such notice; or
9.3.2 the defect arises because the Customer failed to follow the Company’s oral or writ¬ten instructions as to the storage, installation, commissioning, use or mainte¬nance of the Goods or (if there are none) good trade practice; or
9.3.3 the Customer alters or repairs such Goods without the prior written consent of the Company.
9.4 Subject to Conditions 9.2 and 9.3, if any of the Goods do not conform with the warranties in Condition 9.1 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 Customer shall, at the Company's reasonable expense, return the Goods or the part of such Goods which is defective to the Company. Any such repairing or replacement shall be deemed to fully discharge any and all liability of the Company to the Customer in respect thereof.
9.5 If the Company complies with Condition 9.4 it shall have no further liability for a breach of the warranties in Condition 9.1 in respect of such Goods.
9.6 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be warranted on these terms at the time of their delivery to the Customer.
10. LIMITATION OF LIABILITY
10.1 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 Customer in respect of:
10.1.1 any breach of these Conditions;
10.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 Other than the warranties set out herein, 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.
10.3 Nothing in these Conditions excludes or limits the liability of the Company:
10.3.1 for death or personal injury caused by the Company’s negligence;
10.3.2 under section 2(3) Consumer Protection Act 1987;
10.3.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
10.4 Subject to Conditions 10.2 and 10.3:
10.4.1 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 this Contract shall be limited to the Contract price; and
10.4.2 the Company shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, 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.
10.5 Where any materials or other property is supplied to the Company by or on behalf of the Customer (and whether ownership of such materials or property is vested in the Customer or not), the Company accepts no responsibility for loss of or damage to such material or property howsoever and whenever accruing, nor for imperfect work caused by defects in or unsuitability of any material or property so supplied.
10.6 The Customer agrees to indemnify the Company against all expenses, loss, damage, costs and charges suffered by the Company as a result (whether direct or indirect) of false trade descriptions or of claims for any infringement of patents, trade marks, registered or unregistered designs or copyright arising out of work done or Goods supplied in accordance with the Customer’s instructions.
10.7 Notwithstanding the other provisions of this Condition 10, the Company will not be liable for any claim or complaint in respect of damaged Goods unless all recommendations contained or referred to in B.S. 5268 Part 3 1998 Code of Practice for Trussed Rafter Roofs or any amendments or alterations made thereto regarding handling, erection and storage of trussed rafters are strictly adhered to.
11. ASSIGNMENT
11.1 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
11.2 The Company may assign the Contract or any part of it to any person, firm or company.
12. FORCE MAJEURE
12.1 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 Customer (without liability to the Customer) 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 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
13. GENERAL
13.1 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.
13.2 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, void, voidable, unen¬forceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.5 The parties to this Contract do not intend that any term of this Contract will be enforce¬able by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.6 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.
14. COMMUNICATIONS
14.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:
14.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or
14.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Customer.
14.2 Communications shall be deemed to have been received:
14.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
14.2.2 if delivered by hand, on the day of delivery;
14.2.3 if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
14.3 Communications addressed to the Company shall be marked for the attention of the Managing Director.
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