TERMS AND CONDITIONS
“business day” means any day other than a Saturday, Sunday or bank holiday in England and Wales;
“Collection Location” has the meaning given in clause 7.5;
“Contract” means the contract between us and you for the sale and purchase of the Goods in accordance with these Terms and Conditions;
“delivery” has the meaning given in clause 7.6;
“Delivery Location” has the meaning given in clause 7.1;
“Force Majeure Event” has the meaning given in clause 15.1;
“Goods” means the goods (or any part of them) set out in the Order;
“Order” means your order for the Goods, as set out in your acceptance of our quotation or confirmation (whether written or verbal);
“Specification” means any specification for the Goods, including any related plans and drawings, that is agreed in writing by you and us;
“Terms and Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with clause 21;
“us” or “we” means Think Timber Limited a company registered in England and Wales under company number 6755258 whose registered office is at Unit 62, Parkhouse Industrial Estate West, Brick Kiln Lane, Staffordshire, ST5 7AS;
“you” means the person or firm who purchases the Goods from us.
2.1. The headings in these Terms and Conditions are for convenience only and will not affect their interpretation.
2.2. Words imparting the singular number include the plural and vice-versa.
2.3. References to clauses are to clauses to these Terms and Conditions.
2.4. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.5. A reference to a party includes its personal representatives, successors and permitted assigns.
2.6. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
2.7. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.8. A reference to writing or written includes fax and email.
3. Application and entire agreement
3.1. These Terms and Conditions will apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3.2. The Order constitutes an offer by you to purchase the Goods in accordance with these Terms and Conditions. You are responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
3.3. The Order will only be deemed to have been accepted when we issue a written acceptance of the Order or from the date of any delivery of the Goods (whichever happens earlier), at which point the Contract shall come into existence.
3.4. You waive any right you might otherwise have to rely on any term endorsed upon, delivered with or contained in any of your documents that is inconsistent with these Terms and Condition.
3.5. Any samples, drawings, descriptive matter or advertising produced by us and any descriptions or illustrations contained in our catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
3.6. A quotation for the Goods given by us shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue unless expressly withdrawn by us at an earlier time.
4.1. The description of the Goods is set out in the Specification, unless expressly changed in our quotation / invoice.
4.2. We reserve the right to make any changes to the Specification which are required to conform to any applicable safety or other statutory or regulatory requirements.
5.1. The price of the Goods is set out in the Order, or if no price is quoted, the price set out in our published price list in force as at the date of delivery or such other price as we and you may agree in writing.
5.2. If the cost of the Goods to us increases due to:
5.2.1. any factor beyond our control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates,
5.2.2. any request by you to change the delivery date(s), quantities or types of Goods ordered, or the Specification; and/or
5.2.3. any delay caused by your instructions or your failure to provide us with adequate instructions or accurate information;
we may increase the price of the Goods at any time prior to delivery to reflect any such increase.
5.3. Any increase in the price of the Goods pursuant to clause 5.2 will only take place after we have told you about it.
5.4. The price of the Goods is inclusive of fees for packaging.
5.5. The price of the Goods is exclusive of transportation / delivery costs and of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
6.1. Subject to clause 6.5, we will invoice you for the Goods on or at any time after delivery of the Goods or deemed delivery of the Goods in accordance with clause 7.8.1.
6.2. You must pay each invoice submitted by us within 30 days of the date of our invoice or otherwise according to any credit terms agreed between us and you to a bank account nominated in writing by us.
6.3. If you fail to make a payment due to us under the Contract by the due date, we will suspend any further deliveries to you and without limiting any of our other rights or remedies for statutory interest, charge you interest at the rate of 4% per annum above the base rate of the Bank of England from time to time, but 4% per annum for any period when the base rate is below 0%, on the amount outstanding until you pay in full.
6.4. Time for payment will be of the essence of the Contract between us and you.
6.5. We may, at our complete discretion, request payment for the Goods prior to delivery. In these circumstances, we will issue a pro-forma invoice to you and once payment in full has been received, we will then issue an official invoice and arrange delivery of the Goods in accordance with clause 7.
6.6. All payments must be made in British Pounds unless otherwise agreed in writing between us.
6.7. Both parties must pay all amounts due under the Contract in full without any deduction or withholding except as required by law and neither party is entitled to assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
7. Delivery and Collection
7.1. Except where the Goods are to be collected by you, we will arrange for the delivery of the Goods to the address specified in the Order or to another location we and you agree in writing (“Delivery Location”).
7.2. Subject to clause 7.3, all Goods will be delivered within 3-5 business days of the date we notify you that the Goods are ready unless otherwise specified or agreed by both parties.
7.3. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. We will not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.4. If we fail to deliver the Goods, our liability shall be limited to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. We shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or your failure to provide the us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.5. If you do not specify a delivery address or if both parties agree, you must collect the Goods from our premises at 62 Brick Kiln Lane, Parkhouse Industrial Estate West, Newcastle-under-Lyme, Staffordshire, ST5 7AS or such other location we and you agree in writing (“Collection Location”) within 3-5 business days of the date we notify you that the Goods are ready.
7.6. Delivery is completed on completion of unloading of the Goods at the Delivery Location or loading of the Goods at the Collection Location (as the case may be) PROVIDED ALWAYS THAT if any machinery owned by you or under your control is required for such loading or unloading, delivery is completed on commencement of unloading of the Goods at the Delivery Location or loading of the Goods at the Collection Location (as the case may be) (“delivery”).
7.7. Subject to the specific terms of any special delivery service, delivery can take place at any time of the day and must be accepted at any time between 8 am to 5:30pm Monday to Friday.
7.8. If you do not take or accept delivery of the Goods within 5 business days of us notifying you that the Goods are ready, then, except where such failure is caused by a Force Majeure Event or our failure to comply with our obligations under the Contract in respect of the Goods:
7.8.1. delivery of the Goods shall be deemed to have been completed at 9am on the 5th business day after the day on which we notified you that the Goods were ready; and
7.8.2. we shall store or arrange for the storage of the Goods until delivery takes place and will charge you for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and
7.8.3. we shall make arrangements for the delivery of the Goods and will charge you for the costs of any such delivery.
7.9. If 10 business days after the day on which we notified you that the Goods were ready for delivery, you have not taken or accepted actual delivery of them, we may resell or otherwise dispose of part or all of the Goods.
7.10. We can deliver the Goods by instalments, which will be invoiced and paid for separately. Each instalment is a separate contract. Any delay in delivery or defect in an instalment will not entitle you to cancel any other instalment.
8.1. We warrant that on delivery, the Goods shall:
8.1.1. conform in all material respects with their description and any applicable Specification;
8.1.2. be free from material defects in design, material and workmanship; and
8.2. Except as provided in clause 9, we shall have no liability to you in respect of the Goods’ failure to comply with the warranty set out in clause 8.1.
9. Inspection and acceptance of Goods
9.1. You must inspect the Goods on delivery.
9.2. If you identify any excess or shortages of the Goods and/or that some or all of the Goods do not comply with the warranty set out in clause 8.1, you must inform us in writing within 48 hours of delivery, providing sufficient details, failing which you will be deemed to have accepted the Goods.
9.3. If we deliver up to and including 5% [JH1] more or less than the quantity of Goods ordered, you may not reject them, but on receipt of notice from you that the wrong quantity of Goods was delivered in accordance with clause 9.2, we shall make a pro rata adjustment to the invoice for the Goods. [JH2]
9.4. Other than by agreement between you and us, we will only accept returned Goods if we are satisfied that those Goods are defective and if required, we are given reasonable opportunity to examine such Goods.
9.5. Subject to clause 9.6 and your compliance with clause 9.2 and clause 9.3, you may return the Goods to our place of business at and we will, at our option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
9.6. Where the fault for the defective Goods lies with the manufacturer, a claim by us will be required. In this instance any repairs and/or replacements and/or refund to you may take longer or take place when an outcome has been agreed between us and the manufacturer.
9.7. We will have no obligation to repair or replace the defective Goods or refund the price of the defective Goods if:
9.7.1. you fail to provide notice in accordance with clause 9.2; and/or
9.7.2. you make any further use of the defective Goods after giving notice in accordance with clause 9.2; and/or
9.7.3. the defect arises because you did not follow our oral or written instructions about the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; and/or
9.7.4. the defect arises from normal wear and tear of the Goods; and/or
9.7.5. the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
9.7.6. the defect arises as a result of the Supplier following any drawing, design or Specification supplied by you;
9.7.7. the defect arises from misuse or alteration of the Goods, negligence, willful damage or any other act by you, your employees or agents or any third parties.
9.8. You bear the risk and cost of returning the Goods. All returned goods must be wrapped and packed well upon being returned.
9.9. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9.10. These Terms and Conditions shall apply to any repaired or replacement Goods supplied by us.
10. Risk and title
10.1. The risk in the Goods will pass to you on completion of delivery.
10.2. Title to the Goods will not pass to you until we have received payment in full (in cash or cleared funds) for: (a) the Goods and/or (b) any other goods or services that we have supplied to you in respect of which payment has become due in which case title to the Goods shall pass at the time of payment of all such sums.
10.3. Until title to the Goods has passed to you, you must (a) hold the Goods on a fiduciary basis as our bailee; and (b) store the goods separately from all other goods held by you so that they remain identifiable as our property and not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and (c) keep the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and (d) notify us immediately if you become subject to any of the events listed in clauses 11.1.2 to 11.1.6 (inclusive).
10.4. At any time before title to the Goods passes to you, and without limiting any other right or remedy we may have, we can at any time ask you to deliver up the Goods and, if you fail to do so promptly, enter any of your premises or the premises of any third party where the Goods are stored in order to recover them.
11.1. Without limiting our other rights or remedies, we can terminate the Contract with immediate effect by giving notice to you if :
11.1.1. you commit a material breach of any term of the Contract and (if such breach is remediable) you fail to remedy that breach within 7 days of being notified in writing to do so;
11.1.2. you are or become or, in our reasonable opinion, are about to become the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtors;
11.1.3. you enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with your creditors; or
11.1.4. you convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part thereof, any documents are filed with the court for the appointment of an administrator, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of your affairs or for the granting of an administration order, or any proceedings are commenced relating to your insolvency or possible insolvency; or
11.1.5. you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
11.1.6. your financial position deteriorates so far as to reasonably justify the opinion that your ability to give effect to the terms of the Contract is in jeopardy.
11.2. Without limiting our other rights or remedies, we may suspend provision of the Goods under the Contract or any other contract between you and us if you become subject to any of the events listed in clause 11.1.2 to clause 11.1.6 (inclusive), or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under the Contract on the due date for payment.
11.3. Without limiting our other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under the Contract on the due date for payment.
11.4. On termination of the Contract for any reason, you shall immediately pay to us all of our outstanding unpaid invoices and interest, and in respect of Goods supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt.
11.5. Termination or expiry of the Contract, however arising, shall not affect either of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11.6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
12. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS SECTION
12.1. The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2. All warranties, conditions or other terms implied by statute or common law (save for those implied by Section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law.
12.3. Subject to clause 12.5, our total liability to you will not, in any circumstances, exceed an amount equal to the greater of:
12.3.1. the price for the Goods set out in the relevant Order; and
12.3.2. the insurance cover effected by us and actually available to meet the claim in question.
12.4. This clause 12.4 sets out the specific heads of excluded loss:
12.4.1. Subject to clause 12.5, the types of loss listed in clause 12.4.2 are wholly excluded by the parties.
12.4.2. The following types of loss are wholly excluded:
126.96.36.199. any indirect, special or consequential loss, damage, costs, or expenses;
188.8.131.52. any loss of profits;
184.108.40.206. loss of anticipated profits;
220.127.116.11. loss of business;
18.104.22.168. loss of use or corruption of software, data or information;
22.214.171.124. loss of or damage to reputation or goodwill;
126.96.36.199. loss of agreements or contracts;
188.8.131.52. business interruption;
184.108.40.206. any losses caused directly or indirectly by any failure or breach by you in relation to your obligations; and
220.127.116.11 any loss relating to the choice of the Goods and how they will meet your purpose or the use by you of the Goods supplied.
12.5. Nothing in the Contract will exclude or limit any liability which cannot legally be limited, including liability for death or personal injury caused by our negligence; for fraud or fraudulent misrepresentation; breach of the terms implied by section 12 of the Sale of Goods Act 1979; or defective products under the Consumer Protection Act 1987.
12.6. This clause 12 shall survive termination of the Contract.
13.1. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
13.2. Notices will be deemed to have been duly given:
13.2.1. if delivered by hand, at the time the notice is left at the proper address; or
13.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9am on the second business day after posting; or
13.2.3. if transmitted by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 13.2.3, business hours means 9am to 5pm Monday to Friday on a day that is not a public holiday in the place of receipt;
13.2.4. on the fifth business day following mailing, if mailed by national ordinary mail; or
13.2.5. on the tenth business day following mailing, if mailed by airmail.
13.3. All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified by one party to the other party.
13.4. This clause 13 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14. Data protection
15. Circumstances beyond the control of either party
15.1. Neither party shall be liable for any failure or delay in performing their obligations under the Contract where such failure or delay results from any cause that is beyond the reasonable control of that party (“Force Majeure Event”). Such causes include, but are not limited to: industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
15.2. If a Force Majeure Event occurs the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the Contract by giving 7 days’ written notice to the affected party.
16. No Waiver
16.1. No failure or delay by us to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.1. If any provision or part-provision of the Contract is or becomes unlawful, invalid or otherwise unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract, If any provision of the Contract is deemed deleted under this clause 17.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18. Assignment and other dealings
18.1. We may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of our rights or obligations under the Contract.
18.2. You may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Contract without our prior written consent.
19.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 19.2
19.2. Each party may disclose the other party’s confidential information:
19.2.1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 19; and
19.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
19.3. Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
20. Entire agreement
20.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
21.1. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22. Third party rights
22.1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
23. Law and jurisdiction
23.1. The Contract, shall be governed by and interpreted according to the law of England and Wales and all disputes or claims arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.
[JH2]This ensures that the customer cannot cancel the whole contract in the event that they receive more or less than the quantity ordered. Are you happy to make an adjustment to the purchase price in these circumstances?