Terms and Conditions of Sale
- CONTRACT
- CONTRACT
In these conditions:
“Contract” means the Order and the Vendor’s acceptance of
the Order;
“Goods” mean the goods or commodities agreed in the Contract to
be supplied to the Purchaser by the Vendor;
“Order” means the Purchaser’s written order for the supply
of Goods, incorporating these Conditions;
“Purchaser” means the person, firm or company placing the Order
with the Vendor and to whom the Sale Confirmation is issued;
“Price” means the price for the Goods, excluding VAT, notified
by the Vendor to the Purchaser in the Contract, subject to alteration as permitted
by these Conditions;
“Sale Confirmation” means the Vendor’s written acceptance
of the Order; and
“Vendor” means KDM International Ltd, or such other trading name,
subsidiary or associated company of KDM International Ltd with whom the Purchaser
makes the Contract.
- FORMATION
- These Conditions are the only conditions upon which the Vendor is prepared
to deal with the Purchaser and they shall govern the Contract to the entire
exclusion of all terms or conditions sought to be imposed by the Purchaser.
- Each Order for Goods by the Purchaser from the Vendor shall be deemed to
be an offer by the Purchaser to purchase Goods subject to these Conditions and
no Order shall be accepted until the Vendor accepts the Order by issuing the
Sales Confirmation to the Purchaser. The Vendor shall not be bound by any Order
not accepted by it, as evidenced by the issue of the Sales Confirmation.
- These Conditions apply to all sales of the Vendor and can only be varied
if such variation is agreed in writing by the Vendor to the Purchaser
- PARTIES
The Vendor contracts as a principal only (unless stated otherwise in the Contract).
The Purchaser shall be deemed to have bought as principal and not otherwise.
The contract shall be personal to the Purchaser and may not be assigned without
the written consent of the Vendor.
- QUOTATIONS/OFFERS
- The Price quoted by the Vendor for the Goods is based on current production
and shipment / delivery costs (as applicable) at the date of the Contract. If
between the date of the Contract and the date upon which Goods are ready for
delivery an increase in these costs shall be imposed on the Vendor, the Purchaser
will pay to the Vendor a sum in addition to the Price equivalent to the increased
cost to the Vendor of the material or Goods supplied plus any increase in shipping/delivery
costs. All prices are subject to the addition of V.A.T. when appropriate.
- The Price is for the quantities and delivery / shipment conditions agreed
between the Vendor and the Purchaser in the Contract.
- The Purchaser shall, in addition to the Price, pay all relevant additional
charges as set out in clause vi. (Additional Charges) below.
- CANCELLATION OR SUSPENSION
- No cancellation by the Purchaser is permitted except where expressly agreed
by the Vendor in writing.
- The Purchaser will in the event of agreed cancellation by the Purchaser
indemnify the Vendor fully against all expenses incurred up to the time of such
cancellation.
- ADDITIONAL CHARGES
- The Purchaser shall bear all charges for collection, packaging, shipment,
cartage, warehousing, insurance and other expenses incurred by the Vendor in
the delivery of the Goods unless the Contract specifies that the Price includes
delivery and these charges.
- The Vendor may in its absolute discretion make a reasonable charge for
the custody of the Goods or any part thereof including financing costs retained
by the Vendor where the Purchaser does not accept delivery when proffered by
the Vendor.
- Any delay in acceptance of the Goods by the Purchaser may incur penal quay
rent charges and storage charges. The Purchaser is solely responsible for these
charges.
- Demurrage charges may be levied at reasonable rates where discharge of
Vendor’s/Vendor’s sub-contractors vehicle takes in excess of 2 hours.
- PROPER LAW
The formation, existence, construction, performance, validity and all aspects
of the Contract shall be governed by and construed in accordance with the law
of England and the parties submit to the exclusive jurisdiction of the English
Courts.
- TIMBER TRADE
When a Contract for the sale of Goods would normally be considered to be one
which would fall within the “timber trade”, the standard terms and
conditions of the UK Timber Trade Federation will apply to that Contract, except
to the extent that they are in conflict with these Conditions, in which case
these Conditions shall prevail.
- GENERAL
- 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, unenforceable 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.
- Failure or delay by the Vendor 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.
- Any waiver by the Vendor of any breach of, or any default under, any provision
of the Contract by the Purchaser will not be deemed a waiver of any subsequent
breach or default and will in no way affect the other terms of the Contract.
- The parties to this Contract do not intend that any term of this Contract
will be enforceable by virtue of the Contracts (Right of Third Parties) Act
1999 by any person that is not a party to it.
- These Conditions constitute the entire and only agreement between the parties
relating to the Contract and supersede and extinguish any agreements, undertakings,
representations, warranties and arrangements of any nature whatsoever, whether
or not in writing, relating to or in connection with the Contract.
- DELIVERY
- PLACE
Unless otherwise agreed in writing the Vendor shall arrange for delivery of
Goods to be made to the Purchaser’s store and at a time notified by the
Vendor or its sub-contractor to the Purchaser.
- DATES
The Vendor will use all reasonable means to deliver the Goods within the time
specified by the Vendor in the Contract (which shall be notified to the Purchaser
by the Vendor after the date of issue of the Sale Confirmation and the receipt
by the Vendor from the Purchaser of all information necessary to allow the Vendor
to perform the Contract). Whilst the Vendor will use all reasonable endeavours
to estimate delivery dates accurately, delivery times are not to be construed
as forming part of the Contract. The Purchaser shall not be entitled to refuse
to accept the Goods in the event of the Vendor (for whatever cause) being hindered
or delayed in completing the Contract in whole or part by the estimated delivery
date. The Vendor shall not be liable for any loss whatsoever or howsoever arising
caused by any failure to deliver Goods by the estimated delivery date.
- INSTALMENTS
The Vendor may deliver Goods by instalments and each delivery shall be treated
as a separate Contract. The Purchaser shall accept delivery of the Goods when
delivered by or on behalf of the Vendor and shall provide all instructions required
to enable delivery to be carried out. If the Purchaser shall fail to provide
such information the Vendor may cancel delivery and take such steps as it considers
necessary to dispose of the Goods. The Purchaser shall indemnify the Vendor
fully against any costs incurred by the Vendor as the result of such action
or delay.
- FORCE MAJEURE
The Vendor reserves the right to defer the date of delivery, to cancel the
Contract (in whole or in part) or to reallocate any available supply of Goods
at its discretion between its customers as it thinks fit if it is prevented
from or delayed in the carrying on of its business due to circumstances beyond
the reasonable control of the Vendor including, without limitation, acts of
God, governmental action, war or national emergency, acts of terrorism, protests,
riots, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes
or other labour disputes (whether or not relating to either parties workforce),
weather conditions preventing or delaying felling, loading, discharging, shipping
or transportation or restraints or delays affecting carriers or inability or
delay in obtaining supplies of adequate or suitable materials. The Vendor shall
have no liability to the Purchaser for any such delay or cancellation of the
Contract.
- PROCESSING
Any processing to Goods which is carried out at the request of the Purchaser
by a third party is carried out at the expense (where applicable) and at the
risk of the Purchaser on the terms and conditions agreed between the Purchaser
and that third party. The Purchaser agrees to indemnify and hold the Vendor
harmless against any costs, liability or claim that the Vendor may suffer (howsoever
arising) as a result of processing by a third party.
- VARIATIONS IN QUANTITY
The Vendor may at its option, deliver a margin of 15% more or less than the
amount of Goods stated. Delivery of more or less than the quantity of Goods
contracted to be sold, allowing for the margin referred to, or the inclusion
therewith of Goods of a different description not included in the Contract shall
not entitle the Purchaser to reject the whole of the consignment.
- WARRANTIES
- The Vendor warrants that it has the right to sell the Goods and that they
are free from any charge or encumbrance unknown to the Purchaser and that they
comply with the written terms and descriptions contained in the Contract.
- Goods are not tested and no warranty is given or shall be implied that
Goods are suitable for any specific purposes.
- The warranties set out in this clause are the only warranties given by
the Vendor in respect of the Goods and all other warranties, conditions and
other terms relating to the Goods of whatever nature (save for the condition
implied by section 12 of the Sale of Goods Act 1979) are excluded to the fullest
extent permitted by law.
- Where the Goods in the Contract are planed timber, nominal measures stated
are for pricing purposes only and whilst in most cases these will represent
the size of timber prior to planing they are not to be construed as such.
- Where the Goods in the Contract are timber, all sizes and measurements
are approximate only and reasonable tolerances from these sizes are permitted
unless specifically agreed to the contrary.
- Where timber is unseasoned a tolerance in respect of thickness is permitted
of plus or minus a minimum of 1mm on boards, and plus or minus a minimum of
2mm on deals or battens; As regards width, a tolerance is permitted to the same
percentage as permitted for thickness.
- When the goods in contract are unseasoned timber, considerable variations
in measure can occur between cutting the timber at the sawmill and eventual
delivery at the Purchaser’s premises and thereafter. The Vendor only warrants
the sizes, subject to clause 2 vii(e) & (f), at the time of delivery at
the Purchaser’s premises. The sizes in the contract between the Vendor
and Purchaser do not necessarily represent the agreed cut sizes at the mill
between the Vendor and its supplier as certain mills cut to measure and others
make allowances for shrinkage in transit. Failure to make a claim within the
prescribed time period under clause 3 will invalidate all claims for measure
on unseasoned timber.
- HAULAGE
All Goods are carried within the United Kingdom under the Road Haulage Association
conditions of carriage (a copy of which can be supplied on request) except to
the extent that they are in conflict with these Conditions, in which case these
Conditions shall prevail.
- DELIVERY NOTES
All delivery notes either from the Vendor or the Vendor’s sub-contractors
must be signed by the Purchaser at delivery for the tally as stated thereon.
Failure to endorse variations in quantity or damage to the Goods will invalidate
any claims thereon. If a delivery note is not clearly signed for as checked,
but the word ‘unchecked’ is written on the delivery note by the
Purchaser (or similar wording with the same meaning is used), the Purchaser
MUST check the goods as regards quantity, quality and damage before the expiry
of the timeframe specified for making claims in clause 3 below. Failure to do
this will invalidate any claims in these circumstances.
- CLAIMS
- GENERAL
Any claims made by the Purchaser in respect of error relating to the quantity
of Goods delivered or relating to damage to Goods or otherwise relating to quality,
grade and condition which is visible on reasonable examination of the Goods
must be made in writing to the Vendor within seven days of the receipt of the
Goods by the Purchaser. Failure to make such a claim within this time limit
shall be deemed to be unconditional acceptance of the Goods delivered and a
waiver by the Purchaser of all claims of the types specified above. The Purchaser’s
claims will only be investigated, in accordance with normal trade practice,
when payment in full for the Goods has been made if due or demanded in accordance
with these terms and the Vendor shall be under no liability whatsoever to the
Purchaser if bulk is broken other than where necessary to make reasonable examination
of the Goods. It is for the Purchaser in each case to establish the identification
of the goods claimed to have been supplied by the Vendor. See also Cancellation
and Suspension of Contract 1. v). Goods returned or rejected without the Vendor’s
written consent will not be accepted for credit. It is agreed that the specification
calculated by the Vendor (open to verification at the Vendor’s premises)
will form the basis for credit where Goods are accepted by the Vendor as returned
for credit.
- LIABILITY
- The following provisions govern the Vendor’s entire liability (including
any liability for the acts and omissions of its employees, agents and sub-contractors)
to the Purchaser in respect of:
- any breach of its contractual obligations under the Contract; and
- ii. any representation, statement or tortious act or omission (including negligence)
arising under or in connection with the Contract,
save that any exclusions or limitations shall not apply in the case of fraud
or fraudulent concealment.
- Any act or omission on the part of the Vendor or its employees, agents
or sub-contractors falling within clause 3(ii)(a) above shall, for the purposes
of this clause, be known as an “Event of Default”. If a number of
Events of Default give rise to substantially the same loss they shall be regarded
as giving rise to only one claim under the Contract.
- The Vendor’s liability to the Purchaser for death or personal injury
arising from its negligence shall not be limited.
- The Vendor shall not be liable to the Buyer in respect of any Event of
Default for:
- loss of profits, loss of operations, loss of contracts, loss of market share
or loss of good will;
- increased costs or expenses; or
- any type of special, indirect or consequential loss,
including such loss or damage suffered by the Purchaser as a result of any
action brought by a third party even if such loss was reasonably foreseeable
or the Vendor had been advised of the possibility of the Purchaser incurring
it.
- The Vendor shall have no liability to the Purchaser in respect of an Event
of Default unless the Purchaser serves notice of the same upon the Vendor within
12 months of the date it became aware of the circumstances giving rise to the
Event of Default or the date it ought reasonably to have becomes so aware, which
ever is the earlier.
- Unless stated otherwise, the Vendor’s liability in contract, tort,
breach of statutory duty or otherwise, including any liability for negligence,
howsoever caused arising out of or in connection with the Contract shall be
limited to the Price, in respect of any Event of Default.
- PAYMENT
- GENERAL
- The Purchaser shall pay the Price, together with all other sums due under
the Contract, to the Vendor in accordance with the terms of payment stated on
the Contract.
- If payment terms quote a discount for prompt settlement, discount will
only apply when specific terms are adhered to and in default, Goods are sold
strictly net.
- The Purchaser may not withhold payment of any amount due to the Seller
by reason of any right of set off or counter claim which the Purchaser may have
or allege to have for any reason whatever.
- If payment is not made by the due date and is still overdue, or payment
has been received later than the due date, the Vendor shall be entitled to recover
from the Purchaser interest on any amount for which credit is taken in excess
of the agreed terms at the rate of 2% per 30 day period or at any rate currently
in force of a greater amount shown on the invoice. Interest charges may be levied
at any time prior or subsequent to payment being received by the Vendor. The
Purchaser is liable for costs of re-presentation or protesting cheques or bills
of exchange. References to monthly account are deemed to mean payments receivable
by the Vendor by the last day of the month following the month during which
delivery has been made. Where an account balance includes interest the Vendor
may allocate payments first to interest amounts due or otherwise as it sees
fit
- The Vendor reserves the right to demand full or partial payment before
proceeding further with a Contract if any monies are not paid on the due date.
A tolerance of an overdue situation does not in any way diminish the right to
impose this condition.
- If the Purchaser defaults in payment, the Vendor may in addition to any
other rights hereunder suspend performance of or terminate the Contract and
may also cancel any other contracts with the Purchaser without incurring any
liability to the Purchaser in respect of such cancellation without prejudice
to the Vendors right to claim compensation.
- If the arrangements for payment or credit of the Purchaser become unsatisfactory
in the Vendor’s opinion, then the Vendor may, by notice to the Purchaser,
make the purchase price of all Goods invoiced or despatched by the Vendor become
forthwith due and payable and the Vendor shall be entitled to suspend or cancel
further deliveries on any contract without prejudice to any other rights of
the Vendor.
- Any additional costs or loss of profit incurred by the Vendor as the result
of delay, suspension or cancellation pursuant to this clause shall be for the
account of the Purchaser.
- Where Goods have not been sold delivered to the Purchaser’s yard
e.g. FAS, FOB or FOM basis, all shipping documents, including original Bills
of Lading, are tendered by the Vendor strictly IN TRUST to the Purchaser, and
may only be used after signed acceptance of bills of exchange is made by the
Purchaser and returned to the Vendor. Alternatively, such shipping documents
may only be used by the Purchaser once irrevocable payment instructions to the
Purchasers Bank for the Price (together with any additional fees or expenses
due under the Contract) in cleared funds to the Vendor have been effected.
- RETENTION OF TITLE AND RISK
- The Goods shall be at the risk of the Purchaser from the time they are
ready for collection by it or delivered to it and, accordingly, from such time
the Purchaser shall be obliged to insure the Goods for their full replacement
value until payment of the Price has been made to the Vendor.
- Notwithstanding delivery and the passing of risk in the Goods, title and
property in the Goods, including full legal and beneficial ownership, shall
not pass to the Purchaser until the Purchaser has paid in full to the Vendor,
in cash or cleared funds, the whole Price of the Goods, together with payment
in full for all other goods supplied under all other contracts between the Vendor
and the Purchaser. Payment in full for the Goods or such other goods shall include
the amount of any interest or other sum payable under the terms of the Contract
and all other contracts between the Vendor and the Purchaser under which goods
were delivered. Until such sums have been paid the Purchaser holds the Goods
as bailee for the Vendor. Whilst acting as such bailee the Purchaser shall not
pledge or allow any lien or charge to be created over the Goods or any document
of title thereto and will not deal with the Goods except in the ordinary course
of business.
- If the Purchaser sells the Goods in such manner as to pass a valid title
to a third party, the Purchaser shall hold the proceeds of such sale (and pending
payment the right to receive the proceeds of such sale) on trust for the Vendor.
The Purchaser agrees that prior to payment of the Price, the Vendor may at any
time enter on the Purchaser’s premises and remove the Goods and that prior
to such payment the Purchaser shall keep the Goods at all times separate and
identifiable for such purposes. Nothing shall constitute the Purchaser as the
agent of the Vendor for the purpose of any such sub-sale.
- The Purchaser agrees that it will not make use of any Goods in respect
of which the Price has not been paid in any manufacturing process or operation.
- Notwithstanding any other provisions of these Conditions the Vendor may
at its sole discretion and at any time by notice in writing to the Purchaser
transfer the property in the Goods to it.
- CURRENCY
Where contracts are made in foreign currency, the Vendor will not unless expressly
agreed to the contrary make any arrangements on behalf of the Purchaser in connection
with the purchase of such currency. The Vendor will expect to receive payment
in foreign currency of the amount due from the Purchaser and any loss in sterling
value between the due date of payment and actual date of payment will be for
the account of the Purchaser regardless of the cause of delay in payment and
whether or not this was outside the control of the Purchaser. The Purchaser
agrees to hold the Vendor harmless against any loss or costs directly or indirectly
incurred or suffered by the Vendor as a result of the Vendor agreeing to supply
at a price in a foreign currency.
- DEFAULT OF PURCHASER
- GENERAL
If the Purchaser commits any breach of these Conditions or not being a limited
company becomes bankrupt or compounds or makes or attempts to make any arrangements
with its creditors or if, being a limited company, calls a meeting of creditors,
goes into liquidation whether compulsory or voluntary, or has a receiver appointed
of its assets, then and in any such case without notice, the Vendor may withhold
delivery of Goods or determine all or any of its Contracts or accounts then
outstanding with the Purchaser. The Vendor may re-sell any Goods not paid for
in full and the Purchaser shall repay any loss sustained to the Vendor. Any
deposit paid by the Purchaser shall be forfeit to the Vendor. Any monies outstanding
on any account from the Purchaser shall become immediately due and payable.
The Purchaser will be liable for any losses or costs incurred by the Vendor
in the determination of contracts or accounts.
- LIEN
- The Vendor shall have a general lien over all Goods belonging to the Purchaser
in the Vendor’s possession for whatever reason in respect of all monies
due from the Purchaser to the Vendor on any account and the Vendor may enforce
such lien by sale at any time.
Revised July 2007 - Copyright KDM International Ltd