Terms and conditions of sale..
1 Definitions
1.1 ‘The Seller’ means Kent Decking limited,
1.2 ‘The Buyer’ means the person, firm or company to whom goods are
supplied subject to these conditions,
1.3 ‘The Goods’ means any goods, materials or accessories agreed to be
sold or delivered by the Seller to the Buyer subject to these conditions.
1.4 ‘The Contract’ means any agreement for the purchase of Goods by the
Buyer.
1.5 ‘The Conditions’ means the terms and conditions of sale set out in
this document.
2 Existence of Contract
2.1 These Conditions shall apply to all contracts for the sale of Goods by
the Seller to the Buyer to the exclusion of all other terms and conditions
including any terms or conditions which the Buyer may purport to imply
under any purchase order or similar document. All orders for Goods shall
be deemed to be an offer by the buyer to purchase Goods pursuant to these
Conditions. Acceptance of delivery of the Goods in compliance with
Condition 7 shall be deemed conclusive evidence of the Buyer’s acceptance
of these Conditions.
2.2 A quotation by the Seller shall constitute an invitation to treat and
not an offer. The Seller may withdraw or amend any quotation at any time
prior to the Seller’s acceptance of the Buyer's order.
2.3 No other particulars contained in any advertising matter, catalogue or
other publication supplied by the Seller (including references to weights,
dimensions or performances) nor any verbal or written representation by
any employee or agent of the seller shall form part of the Contract nor
shall they be treated as constituting a representation on the part of the
Seller. These Conditions supersede any prior agreements between the Seller
and Buyer whether oral or written and any such prior agreements are
cancelled upon acceptance of these Conditions but without prejudice to any
rights which have already accrued to the Seller or Buyer.
3 Amendments and Cancellation
3.1 No additions or amendments to these Conditions shall be binding on the
Seller unless accepted in writing by a director of the Seller.
3.2 The Contract may not be cancelled by the Buyer except with the written
consent of a director of the Seller.
3.3 The Buyer agrees to indemnify the Seller in full against all loss
(including loss of profit), costs, damages, charges and expenses incurred
by the Seller as result of cancellation of the Contract by the Buyer.
4 Prices
4.1 All prices are exclusive of VAT which will be due at the rate ruling
on the date of the Seller’s invoice. All prices are subject to variation
by the Seller without notice and Goods will be invoiced at the prices
ruling at the date of despatch from the Seller’s premises.
4.2 Interest on overdue invoices shall accrue from the date when payment
becomes due from day to day until the date of payment at a rate of 2%
above Lloyds TSB Bank Plc’s base rate from time to time in force and shall
accrue at such a rate after as well as before any judgment.
5 Settlement Terms
Unless otherwise agreed in writing by a director of the Seller, payment of
the Goods and VAT shall be paid before or on delivery of goods.
6 Measures and Estimates of Quantities
6.1 The Seller shall have the option to supply all or any of the Goods in
either metric or imperial sizes in the nearest equivalent measure and
Goods may be charged in metric measure allowing for conversion.
6.2 Any estimates in respect of quantities needed or advice as to
suitability or fitness of any Goods for any particular purpose given by
the Seller or its employees or agents will be treated as without
obligation or responsibility on the part of the Seller and the Buyer will
be entirely responsible for ascertaining the quantities required and the
suitability and fitness of the Goods for their purpose.
6.3 Where fine or special tolerances are required in the Goods supplied
beyond those generally accepted in the building trade, no liability will
attach to the Seller unless such fine tolerances are notified in writing
to the Seller at the time of order and the Seller has acknowledged in
writing that it is prepared to accept such order.
7 Delivery
7.1 Delivery dates mentioned in any quotation or acceptance form or
elsewhere are approximate only and not of any contractual effect and the
Seller shall not be under any liability to the Buyer in respect of any
failure to deliver on any particular date or dates, nor shall time be of
the essence in any contract.
7.2 Where delivery to site is undertaken by the Seller, it is on the
understanding that there is a suitable road to the point on the site where
delivery is requested. If no such road exists, delivery will be made to
the nearest point to which in the opinion of the Seller’s driver motor
lorries can safely proceed and unload.
7.3 All necessary labour and equipment required to unload materials
promptly shall be supplied by the Buyer and the Seller’s driver shall not
be responsible for unloading. For the purposes of Condition 9 below
delivery shall be deemed in such instance to have taken place upon arrival
of the Goods at the site prior to Buyer unloading the Goods.
8 Return of Goods.
The Seller may in its sole discretion accept or reject of any Goods which
have been incorrectly ordered. In the event that the Seller decides to
accept the return of such Goods, such acceptance shall be upon such terms
as the Seller may determine and in particular the Seller reserves the
right to charge for the carriage and handling of such Goods.
9 Property and Risk
9.1 Risk of loss of or damage to the Goods shall pass to the Buyer on
delivery.
9.2 Notwithstanding delivery and the passing of risk in the Goods, or any
other provisions of these Conditions, the property in the Goods shall not
pass to the Buyer until the Seller has received in cash or cleared funds
payment in full of the price of the Goods and all other Goods agreed to be
sold by the Seller to the Buyer for which payment is then due.
9.3 Until such time as the property in the Goods passes to the Buyer, the
Buyer shall be entitled to resell or use the Goods in the ordinary course
of its business, but shall account to the Seller for the proceeds of sale
or otherwise of the Goods, whether tangible or intangible, including
insurance proceeds, and shall keep all such proceeds separate from any
moneys or property of the Buyer and third parties and, in the case of
tangible proceeds, property stored, protected and insured.
9.4 Until such time as the property in the Goods passes to the Buyer (and
provided the Goods are still in existence) 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 forthwith, or in any event within 7 days of
the Seller’s request, to enter upon any premises of the Buyer or any third
party where the Goods are stored and repossess the Goods.
9.5 The Buyer shall 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 moneys owing by the Buyer to
the Seller shall without prejudice to any other right or remedy of the
Seller) forthwith become due and payable.
10 Claims for defects, damage, loss or non-delivery
10.1 The Buyer shall inspect the Goods on delivery and shall within three
days from the date of delivery as stated on the sales invoice notify the
Seller in writing of any alleged defect, shortage in quantity, damage or
failure to comply with description or sample. The Buyer shall give the
Seller an opportunity to inspect such Goods at the Buyer’s premises or
delivery site within a reasonable time following delivery and before any
use is made of them or the Goods are resold to a third party.
10.2 The Buyer shall notify the Seller in writing of any non-delivery of a
whole consignment within three days of the date of despatch as stated on
the sales invoice.
10.3 If the Buyer shall fail to comply with the foregoing, the Goods shall
be conclusively presumed to be in accordance with the Contract and free
from any defect or damage which would be apparent on reasonable
examination of the Goods and the Buyer shall be deemed to have accepted
the Goods. After acceptance, the Buyer shall not be entitled to reject any
Goods which are in alleged non-accordance with the Contract and where the
Buyer accepts or has been deemed to have accepted any Goods then the
Seller shall have no liability whatever to the Buyer or any third party in
respect of the Goods. If the Buyer establishes to the Seller’s reasonable
satisfaction that the Goods are not in accordance with the Contract or are
defective the Buyer’s sole remedy in respect thereof shall be limited as
the Seller may elect, to making good any shortage to repairing or
replacing such Goods or refunding all, or part of the Contract price
against return of the Goods in good condition.
10.4 The Seller’s liability to the Buyer whether for any breach of the
Contract or otherwise shall not in any event exceed the Contract price and
the Seller shall be under no liability for any consequential or indirect
loss suffered (including but not limited to loss of profits) or liability
to third parties incurred by the Buyer.
10.5 Subject to the provisions of this Condition 10, all warranties,
conditions or terms (whether implied by Statute or otherwise) are hereby
excluded provided that nothing herein shall restrict or exclude liability
for death or personal injury causes by the negligence of the Seller or
shall affect the statutory rights of the Buyer dealing as consumer (as
defined in Section 12 of the Unfair Contract Terms Act 1977.
11 Default by the Buyer
It the Buyer fails to make payment for the Goods in accordance with the
Condition 5 or otherwise commits a breach of the Contract or if the Buyer
offers to make any arrangement with its creditors or commits an act of
bankruptcy or if any petition in bankruptcy is presented against the Buyer
or the Buyer is unable to pay its debts as they fall due or if being a
limited Company, any resolution or petition to wind up the Buyer (other
than for the purpose of amalgamation or reconstruction without insolvency)
shall be passed or presented or if a receiver, administrator,
administrative receiver or manager shall be appointed over the whole or
any part of the Buyer’s business or if any distress or execution shall be
levied upon any of the Buyer’s goods or a secured lender to the Buyer
takes any steps to obtain possession of the property on which it is
secured or otherwise to enforce its security, all sums outstanding in
respect of the Goods shall become payable immediately. The Seller may at
its absolute discretion and without prejudice to any other rights which it
may have:-
11.1 suspend all future deliveries of Goods to the Buyer and/or terminate
the Contract without liability on its part: and/or
11.2 exercise any of its rights pursuant to Condition 9.
12 Set off and counterclaim
The Buyer shall not be entitled to withhold payment of any invoice or
other amount due to the Seller by reason of any right of set off or
counterclaim which the Buyer may have or allege to have or for any other
reason whatsoever.
13 Severance
Any provision or term of these Conditions which is or may be void or
unenforceable shall, to the extent of such invalidity or unenforceability,
be deemed severable and shall not affect any of the provisions of this
Contract.
14 Waiver
No waiver of forbearance by the Seller, whether express or implied, in
enforcing any of its rights under this Contract shall prejudice its rights
to do so in the future.