Terms & Conditions
These Conditions of Sale (the “Conditions”) shall form part of every contract between HK Timbers Limited (“the Seller”) and any person, firm or company purchasing goods (the “Goods”) therefrom (any such person firm or company hereinafter being referred to as “the Buyer”). No conditions or terms of the Buyer shall apply to any such contract between the Seller and the Buyer unless expressly agreed in writing. No variation of any of these conditions shall be effective unless in writing and signed by a duly authorised representative of the Seller.
2. Quotations and Acceptance of Orders
(a) Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject
to these Conditions. Quotations by the Seller remain valid for 30 days and are subject to Clause 4(a) and to the right of the Seller to withdraw or amend a quotation during the 30 day period.
(b) No contract shall arise between the Seller and the Buyer unless and until an order or acceptance of a quotation by the Buyer is accepted by the Seller by the issue of a sale note (the “Sale Note”) or (if earlier) the Seller delivers the Goods to the Buyer.
3. Description, Drawing and Specifications
All descriptions, drawings, specifications, representations and other particulars furnished by the Seller in catalogues, price lists and elsewhere (whether verbally or in writing) are given for general information only to give the Buyer an approximate idea of the Goods described in them and are not binding on the Seller unless specifically confirmed in writing as being applicable to the Goods.
4. Price and Payment
(a) The price shall be as stated in the Sale Note subject to any special conditions (if any) mentioned therein and to Clause 4(f) below.
(b) The price of the Goods shall be net and exclusive of any value added tax which will be payable by the Buyer in addition.
(c) Liability for payment for Goods shall arise on delivery and unless otherwise stated in the Sale Note payment is due 30 days from date of invoice. Time for payment of invoices shall be of the essence. Payment shall be due and the Seller shall be entitled to sue therefore whether or not property in the Goods has passed by virtue of Clause 8.
(d) Should any sum payable under the terms of this agreement not be paid by its due date for payment (as set out hereunder), interest shall accrue on the principal sum at the rate set out in the Late Payment of Commercial Debt (Interest) Act 1998 and the Supplier reserves the right to charge the fee set out in this Act for every invoice which is not paid in accordance with the terms detour herein.
(e) Without prejudice to any other rights or remedies of the Seller any default by the Buyer in making payment on the due date in respect of any contract shall entitle the Seller to suspend deliveries under that or any other contract so long as the default continues and to treat such contract as repudiated by the Buyer and determined if the Buyer has not within 14 days of receiving written notice from the Seller paid all sums due to the Seller.
(f) The Seller reserves the right to increase the price of the Goods prior to delivery to reflect any exceptional increase in the cost to the Seller of raw materials or transportation of the Goods. The Seller shall notify the Buyer of any such increase as soon as it becomes aware of the same.
(g) No Payments may be withheld nor may any counterclaims of the Buyer be set off against any payment due hereunder without the written consent of the Seller.
(a) Delivery shall take place when the Goods are unloaded at the Buyer’s premises or where it may direct except that if the Buyer collects or arranges collection of the Goods from the Seller’s premises, delivery shall take place when the Goods are loaded on to the collection vehicle.
(b) The Seller will use reasonable endeavours to complete delivery on or before any delivery dates requested by the Buyer or estimated by the Seller, but will not be liable for any direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods. Any dates specified by the Seller for the delivery of Goods are intended to be an estimate only and times for delivery shall not be of the essence unless agreed in writing between the Seller and the Buyer.
(c) On notification by the Seller that the Goods are ready for despatch, the Buyer shall except where otherwise agreed in writing, accept immediate delivery or arrange to collect the Goods or arrange suitable storage, failing which the Seller:
(i) may either effect delivery by whatever means it thinks most appropriate or arrange storage at the Buyer’s risk and expense (including demurrage charges) pending delivery;
(ii) may at any time re-sell or otherwise dispose of the Goods without prejudice to any other rights the Seller may have against the Buyer for breach of contract or otherwise.
(d) Where the Goods are delivered by installments each installment shall constitute a separate contract and any failure or defect in any one or more installments delivered shall not entitle the Buyer to repudiate the contract nor to cancel any subsequent installments.
(e) The Buyer shall not be entitled to reject the Goods by reason only of short delivery and shall pay for the Goods pro-rata.
(a) The Buyer shall immediately upon delivery examine the Goods. The Buyer shall notify the Seller and the carrier where relevant within 14 days of delivery of any damage, defect or shortage.
(b) Any defect that is not apparent within (a) above must be notified to the Seller within 7 days of the defect becoming evident.
(c) The Buyer shall notify the Seller if the Goods are not delivered within 48 hours of the time of delivery notified to the Buyer by the Seller.
(a) All conditions and warranties whether express or implied by statute or otherwise shall be construed subject to these conditions and to the extent permitted by Law, insofar as they are inconsistent herewith, shall be excluded.
(b) Subject to paragraph (c) below the Seller warrants only that the Goods are reasonably free from defects in material or workmanship.
(c) The Warranty set out in paragraph (b) above shall not apply:
(i) to damage caused by the Buyer’s or any third party’s act, default , misuse, fair wear and tear, negligence or storage of the Goods (including, without limitation storage of the Goods in conditions of excessive moisture or in proximity to rotting agricultural produce or any chemical) or by failure to follow any instructions supplied with the Goods; or
(ii) where the Goods have been used for any purpose or the storage of any materials of which the specification has not been approved in writing by the Seller; or
(iii) to Goods which are altered, modified or repaired in any place other than the Seller’s factory or by persons not expressly nominated or approved in writing by the Seller; or
(iv) to Goods which deteriorate as a result of them not having been treated with any form of preservative (because the Goods are intended for the storage of agricultural produce).
(d) The Seller shall subject to paragraph (c) above at its option repair or replace any Goods which do not conform to the warranty provided that the
Buyer has complied with paragraphs (a) and (b) above (as appropriate).
(e) The Seller’s obligation to repair or replace as aforesaid shall constitute the full extent of the Seller’s liability in respect of any loss or damage sustained by the Buyer whether caused by any breach of contract or by misrepresentation or by the negligence of the Seller, its employees or agents, or arising from any other cause and the Seller shall not be liable for any consequential, economic, direct or indirect loss suffered by the Buyer arising therefrom. Nothing in these Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence.
8. Property and Risk
(a) Risk shall pass to the Buyer on delivery in accordance with Clause 5.
(b) Property in the Goods shall not pass to the Buyer until payment in full in cleared funds (including any interest payable under Clause 4(c) has been received by the Seller and pending such payment the Buyer will not use the Goods or take any action in connection therewith which is inconsistent with the Seller’s title thereto.
(c) Until the passing of property in the Goods the Buyer shall;
(i) store or mark the Goods in such a way as to indicate that they remain the property of the Seller;
(ii) maintain the Goods in satisfactory condition; and
(iii) insure the Goods against loss theft and damage on the Seller’s behalf up to the full replacement value of the Goods and provide proof of the same to the Seller on request.
(d) The Seller by its employees or agents shall be entitled to enter upon or into any land, buildings or vehicles of the Buyer to retake possession of its Goods or to request that the Buyer forthwith re-deliver the Seller’s Goods to it:
(i) if the Buyer shall be in breach of any of the terms of the contract; or
(ii) if the Seller shall reasonably consider for any reason that its goods are in jeopardy; or
(iii) on the happening of any of the events set out in (e) below.
(i) any notice to the Buyer that a Receiver or manager of the Buyer is to be or has been appointed; or
(ii) any notice to the Buyer that a petition to wind it up is to be or has been presented or any notice convening a meeting of the Buyer at which such a resolution is to be proposed to wind up the Buyer (save for the purposes of and followed by a bona fide reconstruction or amalgamation) or;
(iii) a decision by the Buyer that it intends to make an arrangement with its creditors; or
(iv) any act of bankruptcy by the Buyer; or
(v) any event or default which causes the Seller reasonably to consider that its title to the Goods or proceeds of sale may be adversely affected.
(f) The Buyer shall notify the Seller forthwith of the happening of any of the matters referred to in paragraphs (d) and (e).
9. Breach by or Insolvency of the Buyer
If the Buyer shall not comply with any of its obligations to the Seller under any contract made between them, or upon the occurrence of any of the events referred to in Clause 8(d), the Seller shall have the right forthwith to terminate such or any other contract with the Buyer but without affecting any other claim, right or remedy of the Seller against the Buyer.
10. Cancellation by the Buyer
If the Buyer shall purport to cancel the whole or any part of its contract with the Seller for the Goods other than in accordance with these Conditions the Seller may by notice in writing to the Buyer elect to treat such contract as cancelled in consideration of the Buyer paying to the Seller by way of damages a sum equal to the expenses incurred by the Seller in connection with the contract including an appropriate amount in respect of administrative overheads, costs and lost profit.
11. Technical Information
Any know-how, information, design or drawings relating to the Goods are strictly confidential and the Buyer shall not copy, use or disclose any such know-how, information, design or drawings without the prior written consent of the Seller.
12. Force majeure
(a) The Seller Shall not be liable for direct, indirect, consequential loss, costs, damages, charges or expenses caused directly or indirectly by any delay in performing its obligations under these Conditions if such delay is caused by circumstances (including, without limitation inability or delay in obtaining adequate or suitable materials) beyond the reasonable control of the Seller and the seller shall be entitled (subject to giving the other party full particulars of the circumstances in question and to using all reasonable endeavours to resume full performance without avoidable delay) to a reasonable extension of time for performance of such obligations.
(b) If the events in (a) above continues for a continuous period in excess of 90 days either party shall be entitled to give notice in writing to the other that the contract for the Goods is terminated without liability for direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by such termination.
(c) If circumstances beyond the reasonable control of the Seller mean that production of the Goods and those goods required for the performance of the Seller’s other contracts is reduced the Seller may proportionately reduce the quantities to be supplied to the Buyer and shall not be liable for direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by such a reduction.
(a) The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Sale Note. Nothing in these Conditions shall exclude or limit the Seller’s liability for fraudulent misrepresentation.
(b) If any of these Conditions is held to be invalid unenforceable or unreasonable in whole or in part the validity of the remaining Conditions and the remainder of the provision in question shall not be affected.
14. Proper Law
Every contract between the Seller and the Buyer shall be subject to English Law. The Buyer hereby submits to the exclusive jurisdiction of the English Courts for the determination of any question or dispute, howsoever arising.