Terms and Conditions
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”meansthe 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.
(a) 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.
(b) 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.
(c) 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
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.
(a) 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.
(b) The Price is for the quantities and delivery / shipment conditions agreed between the Vendor and the Purchaser in the Contract.
(c) The Purchaser shall, in addition to the Price, pay all relevant additional charges as set out in clause vi. (Additional Charges) below.
v) CANCELLATION OR SUSPENSION
(a) No cancellation by the Purchaser is permitted except where expressly agreed by the Vendor in writing.
(b) 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.
vi) ADDITIONAL CHARGES
(a) 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.
(b) 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.
(c) 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.
(d) Demurrage charges may be levied at reasonable rates where discharge of Vendor’s/Vendor’s sub-contractors vehicle takes in excess of 2 hours.
vii) 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.
viii) 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.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
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.
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 arsing caused by any failure to deliver Goods by the estimated delivery date.
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.
iv) 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.
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.
vi) 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.
(a) 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.
(b) Goods are not tested and no warranty is given or shall be implied that Goods are suitable for any specific purposes.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
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.
ix) 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.
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.
(a) 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:
i. 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.
(b) 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.
(c) The Vendor’s liability to the Purchaser for death or personal injury arising from its negligence shall not be limited.
(d) The Vendor shall not be liable to the Buyer in respect of any Event of Default for:
i. loss of profits, loss of operations, loss of contracts, loss of market share or loss of good wil
ii.increased costs or expenses; or
iii.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.
(e) 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.
(f) 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.
(a) 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.
(b) 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.
(c) The Purchaser may not withhold payment of any amount due to the Vendor by reason of any right of set off or counter claim which the Purchaser may have or allege to have for any reason whatever.
(d) 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. In addition any legal or consequential costs incurred by the Vendor in taking action to recover a debt shall be payable in full by the Purchaser. 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
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) Where the Vendor owes any amount to the Purchaser, the Vendor reserves a right to contra and set off that amount against any amount due to the Vendor by the Purchaser under this or any other contract whether or not any such amount is due according to the payment terms agreed.
ii) RETENTION OF TITLE AND RISK
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
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 his 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.
5 DEFAULT OF PURCHASER
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; A) 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; and B) exercise a right of set off for any amount lawfully due and payable to the Purchaser by the Vendor against any amount due to the Vendor by the Purchaser.
i) 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.
Revision July 2007a – Copyright KDM International Ltd.