Conditions of Sale
Effective October 2006
1 - Interpretation
means the person who accepts a quotation of the Company for the sale of the Goods and/or the supply of Services or whose order for the Goods is accepted by the Company. This is also referred to as you, or your, below.
shall mean the products, articles or items to be sold by the Company, including any installation or services provided by the Company to the Buyer.
means DAVID COVER & SON LIMITED (registered in England & Wales under Company number 00396804). This is also referred to as we, us or our below.
means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Company.
means the contract for the purchase and sale of the Goods.
includes email, facsimile transmission or by post addressed to the party for which it is intended.
The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 - Basis of the Sale
The Company shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Company which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Company, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
Only Managers and Directors of the Company are authorised representatives.
Our employees or agents are not authorised to make any representations concerning the Goods unless confirmed by us in Writing. In entering into the Contract you acknowledge that you does not rely on, and waive any claim for breach of, any such representations which are not so confirmed.
Any advice or recommendation given by us or our employees or agents to you or your employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by us is followed or acted upon entirely at your own risk, and accordingly we shall not be liable for any such advice or recommendation which is not so confirmed.
Any error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by us shall be subject to correction without any liability on our part.
Any manufacturer part numbers we provided are given as a reference only and no inference or implication beyond that of a useful reference tool should be taken nor is intended.
3 - Orders & Specifications
No order you submit shall be deemed to be accepted by us unless and until we confirm it in writing.
All orders we take are subject to the availability of goods and materials and we reserve the right to alter the specification of, or to withdraw any item without prior notice. However any alternative materials that are used shall be of satisfactory quality.
You shall be responsible to us for ensuring the accuracy of the terms of any order (including any applicable specification) you submit, and for giving us any necessary information relating to the Goods within a sufficient time to enable us to perform the Contract in accordance with its terms.
The quantity, quality and description of and any specification for the Goods shall be those set out in our quotation (if accepted by you) or your order (if accepted by us).
If the Goods are to be manufactured or any process is to be applied to the Goods by us in accordance with a specification or direction you submit, you shall indemnify us against all loss, damages, costs and expenses awarded against or incurred by us in connection with or paid or agreed to be paid by us in settlement of any claim for infringement or alleged infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from our use of your specification or from us complying with your direction as the case may be.
We reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to our specification, which do not materially affect their quality or performance.
Neither the whole nor any part of any order, whether it is an order by instalment or otherwise, may be cancelled by you except with our agreement in writing and on terms that you shall indemnify us in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by us as a result of cancellation.
4 - Price of the Goods
The price of the Goods shall be our quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in our price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only (unless we otherwise agreed in writing). A quotation given by us does not constitute an offer and we may withdraw or revise a quotation at any time before our acceptance in writing of the order or delivery.
Unless otherwise agreed in writing all prices are net and shall not be subject to any discount.
We reserve the right, to increase the price of the Goods to reflect any increase in the cost to us which is due to any factor beyond our control, any change in delivery dates, quantities or specifications for the Goods which you request, or any delay caused by any of your instructions or by your failure to give us adequate information or instructions.
Unless specifically excluded in a quotation our conditions regarding charging for carriage shall apply.
The price for the Goods is exclusive of any applicable value added tax, which you shall be additionally liable to pay to us.
The cost of pallets and returnable containers will be charged to you in addition to the price of the Goods, but credit may be given to you provided they are returned undamaged to us before the due payment date.
5 - Terms of Payment
Subject to any special terms agreed in Writing between you and us, we shall be entitled to invoice you for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by you or you wrongfully fail to take delivery of the Goods, in which event we shall be entitled to invoice you for the price at any time after we have notified you that the Goods are ready for collection or (as the case may be) we have tendered delivery of the Goods.
The price for the Goods shall be due for payment no later than the end of the month following the date of invoice (if we have granted you credit terms) and you agree that a dispute as to any amount owed hereunder or any goods supplied hereunder will not entitle you to withhold payment of such invoice or any other amounts due.
You shall pay the price of the Goods as provided in Clause 5.2 above, and we shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to you.
The time of payment of the price for the Goods shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
If you fail to make any payment on the due date then, without prejudice to any other right or remedy available to us, we shall be entitled to:
5.5.1. - suspend further deliveries under any other contract with you whether made before or after this contract;
5.5.2. - cancel the contract or suspend any further deliveries to you;
5.5.3. - appropriate any payment made by you to such of the Goods (or the goods supplied under any other contract between you and us) as we may think fit (notwithstanding any purported appropriation by you); and
5.5.4. - charge you interest (both before and after any judgment) on the amount unpaid, at the rate of 2 per cent per month, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6 - Delivery (part 1)
Delivery of the Goods shall be made by you collecting the Goods at our premises at any time after we have notified you that the Goods are ready for collection or, if some other place for delivery is agreed by us, by us delivering the Goods to that place.
Any dates quoted for delivery of the Goods are approximate only and we shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed as such by us in writing. We may deliver the Goods in advance of the quoted delivery date upon giving you reasonable notice.
Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and our failure to deliver any one or more of the instalments in accordance with these Conditions or any claim by you in respect of any one or more shall not entitle you to treat the Contract as a whole as repudiated.
If we fail to deliver the Goods for any reason other than any cause beyond our reasonable control or your fault, and we are accordingly liable to you, our liability shall be limited to the excess (if any) of the cost to you (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
Where we are to deliver goods:
6.5.1. - delivery will be as near to the place where you require delivery to be made as, in our absolute discretion, a safe hard road permits. In all other circumstances we will not accept any liability (except in respect of death or personal injury caused by our negligence) for any damage caused by the vehicle or driver;
6.5.2. - you shall be responsible for the unloading and storing of the Goods and we shall not be liable for any damage that occurs in the course of unloading. A maximum period of two hours is allowed for the purpose of unloading each vehicle (unless we otherwise agree in writing) and if the unloading period for any reason extends beyond two hours you will be charged on a time and cost basis at our current rates from time to time in force;
6.5.3. - where we in our absolute discretion determine that mechanical handling or cranage is appropriate such facilities must be provided by you and at your cost on site to facilitate the unloading of Goods from the delivery vehicles; and...
6 - Delivery (part 1)
If you fail to take delivery of the Goods or fail to give us adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond your reasonable control or by reason of our fault) then, without prejudice to any other right or remedy available to us, we may:
6.6.1 - store the Goods until actual delivery and charge you for the reasonable costs (including insurance) of storage; or
6.6.2 - sell the Goods at the best price readily obtainable and (after deducting all reasonable delivery, storage, selling and administrative expenses) account to you for the excess over the price under the Contract or charge you for any shortfall below the price under the Contract.
7 - Risk & Property
Risk of damage to or loss of the Goods shall pass to you:
7.1.1. - in the case of Goods to be delivered at our premises, at the time when we notify you that the Goods are available for collection; or
7.1.2. - in the case of Goods to be delivered otherwise than at our premises, at the time of delivery or, if you wrongfully fail to take delivery of the Goods, the time when we have tendered delivery of the Goods.
Notwithstanding delivery and passing of risk in the Goods, or any other provisions of these Conditions, the property in the Goods shall not pass to you until all sums due or owing by you to us on any account have been paid.
Until such time as the property in the Goods passes to you, you shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as our property.
Until such time as the property in the Goods passes to you (and provided the Goods are in existence and have not been re sold), we shall be entitled at any time to require you to deliver up the Goods to us and, if you fail to do so forthwith, to enter upon any of your premises or premises under your control where the Goods are stored and repossess the Goods.
Our demand for or recovery of the Goods shall not of itself discharge either your liability to pay the whole of the price and take delivery of the Goods or our right to sue for the whole of the price.
If the goods are sold to a third party with valid title the proceeds of the sale are to be held on trust for our benefit.
8 - Warranties & Liability (part 1)
Subject to the conditions set out below we warrant that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of three months from the date of their initial use or six months from delivery, whichever is the first to expire (except in the case of timber or timber products where the warranty will be seven days in either event).
We give the above warranty subject to the following conditions:
8.2.1. - we shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by you;
8.2.1. - we shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow our instructions (whether oral or in writing), misuse or alteration or repair of the Goods without our approval;
8.2.3. - we shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.4. - the above warranty does not extend to parts, materials or equipment not manufactured by us, in respect of which you shall only be entitled to the benefit of any such warranty or guarantee as we are given by the manufacturer.
8.2.5. - We shall be entitled to claim reasonable tolerances in respect of the Goods and reserve the right to make adaptations to goods supplied by us due to technical developments. We give no condition or warranty that the Goods are fit for any particular purpose for which the customer may require them. You must satisfy yourself before ordering the goods that the goods are fit and suitable for the purpose for which you require them.
Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Second hand goods are supplied on the basis that all common law and statutory warranties and conditions as to their satisfactory quality are excluded. All second hand goods must be inspected prior to use or fixing.
Any claim by you which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not you refuse delivery) be notified to us in writing within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within 7 days after discovery of the defect or failure. If delivery is not refused, or you do not notify us accordingly, you shall not be entitled to reject the Goods and we shall have no liability for such defect or failure, and you shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to us in accordance with these Conditions, we shall be entitled to replace the Goods (or the part in question) free of charge or, at our sole discretion, refund you the price of the Goods (or a proportionate part of the price), and we shall have no further liability to you.
Except in respect of death or personal injury caused by our negligence, we shall not be liable to you by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by our negligence, our employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by you, except as expressly provided in these Conditions.
We shall not be liable to you or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the Goods, if the delay or failure was due to any cause beyond our reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond our reasonable control:
8.8.1. - act of God, war, riot, strike, lockout, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood, storm;
8.8.2. - acts, restrictions, regulations, of any kind on the part of any governmental, parliamentary or local authority;
8.8.3.- difficulty or increased expense in obtaining labour, materials or transport, or other circumstances affecting the supply of goods or of raw materials by our normal course of supply, or the manufacture of the goods by our normal means, or the delivery of the goods by our normal route or means of delivery.
The storage, handling and erection of timber components should when appropriate, be in accordance with the Trussed Rafter Association's recommendations and copies of these are available on request. The customer shall be responsible for ensuring that all Statutory, Government or Local Authority regulations are complied with in relation to the use of any goods purchased from us. The customer shall ensure that all instructions, hand books, notices and warnings issued with the Goods are properly understood and complied with at all times by all persons using the goods or working within close proximity to them. This does not oblige us to provide any such instructions, hand books, notices or warnings.
9 - Samples
Samples submitted for approval to be accepted as showing general character and substance only. Equality of the bulk in colour, size or shape cannot be guaranteed.
10 - Indemnity
If any claim is made against you that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, we shall indemnify you against all loss, damages, costs and expenses awarded against or incurred by you in connection with the claim, or paid or agreed to be paid by you in settlement of the claim, provided that:
11.1.1. - we are given full control of any proceedings or negotiations in connection with any such claim;
11.1.2. - you shall give us all reasonable assistance for the purposes of any such proceedings or negotiations;
11.1.3. - except pursuant to a final award, you shall not pay or accept any such claim, or compromise any such proceedings without our consent (which shall not be unreasonably withheld);
11.1.4. - you shall do nothing which would or might vitiate any policy of insurance or insurance cover which you may have in relation to such infringement, and this indemnity shall not apply to the extent that you recover any sums under any such policy or cover (which you shall use your best endeavours to do);
11.1.5. - we shall be entitled to the benefit of, and you shall accordingly account to us for, all damages and costs (if any) awarded in your favour which are payable by or agreed with your consent (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
11.1.6. - without prejudice to any your duties at common law, we shall be entitled to require you to take such steps as we may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which we are liable to indemnify you under this clause.
11 - Insolvency of Buyer
This clause applies if:
11.1.1. - you make any voluntary arrangement with your creditors or become subject to an administration order or (being an individual or firm) become bankrupt or (being a company) go into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
11.1.2. - an encumbrancer takes possession, or a receiver is appointed, of any of your property or assets; or
11.1.3. - you cease, or threaten to cease, to carry on business; or
11.1.4. - we reasonably apprehend that any of the events mentioned above is about to occur in relation to you and notify you accordingly.
If this clause applies then, without prejudice to any other right or remedy available to us, we shall be entitled to cancel the Contract or suspend any further deliveries or provision of services under the Contract without any liability to you, and if goods have been delivered or a service provided but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12 - Cancellation of Special Orders & Stock Items
In the event that you cancel a Special Order (being an order for an item that is not in stock and/or is required to be specially made or obtained for you) the following handling charges may be levied:
the charge to us by the supplier for the return of the items including carriage which may be 100% of the price of the Goods if the supplier declines to re-stock the item.
our administrative and handling costs.
if we decide to retain the goods in Stock a minimum of 10% of our list price of the goods together with handling costs.
if the goods have been specifically designed or made by us for you and we cannot resell the goods then you will be charged for 100% of our full costs up to the time of receipt of your written cancellation.
13 - Conditions Only Applicable to Roof Trusses, Engineered Beams and Timber Frame House Products
This condition is only applicable to roof trusses and timber frame house products. When there is an inconsistency between this condition and the above conditions this condition shall prevail;
Our responsibility shall be limited to ensuring that based on the criteria supplied by you the structural design of the truss, engineered beams or timber frame housing products is in accordance with the relevant official standards and codes of practice. We are not responsible for the aesthetic appearance of any truss or timber frame housing product it designs nor for the suitability or structural adequacy of any larger unit of which the truss or timber frame housing product may become part, responsibility is only accepted to consider forces in the plane of the truss or beam. We shall be relieved from any responsibility under this condition in relation to any truss, engineered beams or timber frame housing product it supplies unless all of the following conditions are complied with;
14.2.1. - Any design by us or by the Supplier must be read and applied having due regard to our recommendations and those of the Trussed Rafter Association and the UK Timber Frame Association;
14.2.2. - No part of the truss or timber frame housing product may be cut or drilled;
14.2.3. - The truss or timber frame house products must be properly stored, handled and erected.
14 - General
Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
No waiver by us of any breach of the Contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
These terms and condition shall be governed by and construed in accordance with the laws of England and the parties submit to the jurisdiction of the English Courts.