Terms & Conditions

Interpretation
1.1 Definitions. In these Conditions, the following definitions and rules of interpretation apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.6.

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from the Supplier.

General Warranty Terms: the Supplier’s general warranty terms in force at the time the Contract is formed.

Goods: the goods (or any part of them) set out in the Order.

Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form or in the Customer’s written acceptance of the Supplier’s quotation, as the case may be.

Specification: any specification for the Goods, including any related plans and drawings that may be agreed in writing by the Customer and the Supplier.

Supplier: Woodberry of Leamington Spa Ltd (registered Limited Company in England and Wales).

1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3 A reference to a party includes its personal representatives, successors or permitted assigns.

1.4 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.5 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

1.6 A reference to writing or written includes faxes and email.

2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order or performs the Contract by effecting delivery of the Goods, at which point the Contract shall come into existence.

2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 60 Business Days from its date of issue.

3. Goods
3.1 The Goods shall be as described in the Specification. The Customer agrees that it is the Customer’s responsibility to examine, sample and test the Goods (at its own cost) prior to purchase and accordingly any warranty that the Goods are of satisfactory quality is expressly excluded.

3.2 The Supplier also reserves the right to substitute a functional equivalent of the Goods where necessary and shall charge the list price of the substitute goods. Where the Supplier has substituted the Goods, the Customer must notify the Supplier in writing within 5 days of delivery if it wishes to reject the substitute Goods and receive a refund of the price. The Customer must ensure that any rejected substitute Goods are returned to the Supplier in the original packaging and in a good saleable condition.

4. Delivery
4.1 The Supplier shall ensure that:

4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), and special storage instructions (if any); and
4.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready. Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Without prejudice to the foregoing, the Supplier 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 the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.4 Any Orders required to be delivered on a specific date shall be notified to the Supplier at least 4 Business Days in advance of the required delivery date and such Orders may be subject to surcharges as notified to the Customer in advance.

4.5 If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:

4.5.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.5.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.

5. Quality
5.1 The Supplier’s warranties and the Customer’s remedies will be as set out in the General Warranty Terms.

5.2 For the avoidance of doubt, the Supplier shall not be liable for any defects in the Goods, and the General Warranty Terms shall not apply, to the extent the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer.

5.3 The Customer shall not accept delivery of the Goods where any defects are apparent on delivery and any omissions shall be notified in writing to the Supplier immediately.

5.4 The Customer shall notify the Supplier in writing of any transit damage caused by the carrier which may be ascertainable by reasonable inspection (including removal of packaging) within 5 days of delivery.

5.5 In respect of any omissions the Supplier shall, at its option, replace the shortage or cancel the missing part of the Order and credit to the Customer the price of the cancelled Goods.

5.6 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of any damage caused in transit or delivery shortages.

5.7 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

5.8 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6. Returns
6.1 Except in the case of any faulty or defective Goods, or substitute Goods supplied under clause 3.2, the Customer shall only be permitted to return the Goods to the Supplier at the Supplier’s sole discretion and in accordance with this clause 6.

6.2 Goods shall not be returned to the Supplier unless agreed by the Supplier, in which case the Supplier will issue a “Return Authorisation Number” which should be displayed clearly on the outside of any returned package.

6.3 Returned Goods shall not be accepted by the Supplier unless a Returns Authorisation Number has been previously issued and the Goods are (in the Supplier’s reasonable opinion) in a good and saleable condition and (where applicable) returned in their original packaging. Goods are returned at the Customer’s cost and are subject to a handling charge equivalent to 5% of the price of the Goods.

7. Title and risk
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.

7.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods and any other goods or services that the Supplier has supplied to the Customer.

7.3 Until title to the Goods has passed to the Customer, the Customer shall:

7.3.1 hold the Goods on a fiduciary basis as the Supplier’s bailee;
7.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
7.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.2; and
7.3.6 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.4 Notwithstanding the provisions of clause 7.3, the Customer may resell or has the right to dispose of the Goods in the ordinary course of its business on a bona fide sale without notice to its customer of the Supplier’s rights hereunder.

7.5 The entire proceeds of the disposal of the Goods under clause 7.4 shall be held in trust for the Supplier until payment in full for the Goods is received by the Supplier.

7.6 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that any such event is about to happen, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, the Customer grants the Supplier an irrevocable licence for the Supplier, its agents and employees to enter any premises of the Customer or of any third party (so that the Supplier will not commit a trespass when doing so) where the Goods are stored in order to recover the Goods.

7.7 The Customer shall register any necessary charge over money or goods and shall take such other steps as are necessary to give effect to this clause 7 at the request of the Supplier and/or in order to perfect the Supplier’s title and interest in the Goods.

7.8 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the Supplier’s property, but if the Customer does so all monies owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.

8. Price and payment
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.

8.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

8.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
8.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
8.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

8.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

8.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery. The Supplier reserves the right to invoice and require payment of the same in advance of delivery. The Customer shall pay all invoices in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

8.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then:

8.6.1 the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank Plc base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and/or
8.6.2 the Supplier may, without limiting any other right or remedy available to it, cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier.
8.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

9. Resale
9.1 To ensure the integrity and quality of the Goods, the Customer shall not, without the prior written consent of the Supplier, and subject to any special terms required by the Supplier, resell the Goods to any non-consumer third party which the Customer knows or may be deemed on reasonable grounds to believe intends to resell the Goods to other businesses.

9.2 In relation to any resale of the Goods, the Customer shall conduct its business in a manner that reflects favourably at all times on the Supplier and the good name, goodwill and reputation of the Supplier and shall not engage in any practice detrimental to the interests of the Supplier.

10. Customer’s insolvency
10.1 If the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

10.2 The events referred to in clause 10.1 are if the Customer suspends, or threatens to suspend, payment of its debts or substantially the whole of its business; goes into liquidation; becomes insolvent; or has an administrator, receiver or similar officer appointed in respect of all or part of its undertaking (or is the subject of a filing with any court for the appointment of any such officer).

10.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

11. Limitation of liability
11.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
11.1.4 defective products under the Consumer Protection Act 1987; or
11.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
11.2 Subject to clause 11.1:

11.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
11.2.2 the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods under the Contract.

12. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

13. General
13.1 Assignment and subcontracting. The Customer shall not assign, transfer, charge, subcontract or otherwise deal with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier. The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

13.2 Notices. All notices in connection with the Contract shall be in writing, addressed to the recipient at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, fax or email. Notices shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or, if sent by fax or email, one working day after transmission. This clause 13.2 shall not apply to the service of any proceedings or other documents in any legal action.

13.3 Severance. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

13.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

13.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.

13.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.

13.7 Entire Agreement. The Contract constitutes the entire agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.