a) In these conditions:
(i) ’Seller / We’ means Metcalfe Timber and Builders Merchants Ltd.
(ii) ’Goods’ means the goods or services specified.
(iii) ’the Buyer / You’ means the person, firm or company who accepts a quotation for sale or supply of the Goods or whose order for the Goods is accepted by the Seller.
b) This contract contains the entire bargain between the Seller and the Buyer and in the case of any inconsistency between these terms and conditions and the terms and conditions of any other contract documents sent by the Buyer to the Seller (whatever their respective dates) in respect of the Goods these terms and conditions shall prevail.
c) Any description or illustrations in the Seller’s catalogues, price lists or other advertising materials are intended merely to represent a general idea of the Goods and shall not form representations or be part of the contract.
d) Any concession or waiver made by the Seller at any time shall not prejudice the exercise of its rights hereunder.
e) No waiver alterations or modifications of these terms and conditions shall be valid unless made in writing and signed by the duly authorised representative of the party against whom the same shall be sought to be enforced.
f) The Seller reserves the right to correct any clerical errors made by its employees or in its sales literature, quotations, price lists or other documentation at any time.
g) The Buyer’s order (’the Order’) will only be accepted when an acknowledgement is signed by an authorised signatory of the Seller.
h) Each of the clauses of these general terms and conditions of sale and every part thereof shall be separate and severable to the intent that if one clause or one part thereof shall be unenforceable the other clauses and the other parts of the clause respectively shall be effective.
i) The exclusions and limitations contained in these general terms and conditions of sale only apply so far as permitted by the Supply of Goods (Implied Terms Act) 1973 the Consumer Credit Act 1974 and the Unfair Contract Terms Act 1977 or any other statute or amendment thereof or Order Thereunder.
2 PRICE VARIATION
The price of the Goods is based on the current price of materials, labour and other prime costs of the Seller and if the same shall increase after the date of the Order the Seller shall be entitled to increase the price of the Goods by a fair proportion to reflect the increase cost.
a) Unless otherwise expressly agreed in writing the Buyer shall take delivery of the Goods from the Seller’s works or premises. If the Buyer specifies another place for delivery the Seller reserves the right to make an additional charge for carriage. The Buyer shall be ready to collect the Goods at such place when notified by the Seller and any additional expense caused to the Seller by the Buyer due to the Buyer not being ready or not providing suitable collection facilities or any other cause shall forthwith be reimbursed to the Seller.
b) The Seller shall not be obliged to make any refund of any charge made for packing except in the case of non-expendable pallets or containers which are charged for and for which credit will be given on return.
c) The Seller will allow 30min for offloading each delivery and we charge £60+vat per hour for waiting time. If for any reason you think your delivery will take longer than this due to any special requirements, multiple trips with the forklift or carrying good from the lorry to the back of property while our driver waits, the waiting charge will apply.
d) The Seller will not be held liable for any costs incurred due to late or short delivery.
e) Where delivery of Goods to site is undertaken by the Seller, it is on the understanding that there is a suitable road / access to the point on the site where delivery is requested. If no such road / access exists, delivery will be made to the nearest point to which, in the opinion of the Seller or its carrier, the Seller or its carrier can safely proceed and unload.
f) Please note that all deliveries are made on the front driveway/garden/kerbside of the given address as standard policy. Any further permissible encroachment onto The Buyer’s property is subject to the driver’s discretion. If access is granted by The Buyer, they will be accepting liability for damages caused.
4 DELIVERY DATE
The Seller will use its best endeavour to meet any delivery date but any date named by the Seller for delivery is given and intended as an estimate only and is not to be of the essence of the contract. The Buyer shall nevertheless be bound to accept the Goods when available. The Seller shall not be liable in any way in respect of late delivery howsoever caused nor shall such failure be deemed to be a breach of contract.
5 QUANTITY VARIATIONS AND MODIFICATIONS
a) The Seller will endeavour to supply the exact size of Goods as specified on each product page, length wise and dimension wise, but unless otherwise specifically agreed, such size shall be subject to a tolerance either way of ten per cent and the Buyer will pay for the actual size of Goods delivered.
b) Where delivery of the Goods is to be effected by two or more instalments and the quantities or specifications to be comprised in each instalment are not specified in the contract the Seller will be entitled to supply each instalment of the Goods in such quantities and specifications as the Seller in its absolute discretion thinks fit.
c) The Seller reserves the right to modify or improve any of its goods and may substitute any such improved or modified goods in lieu of those actually ordered by the Buyer provided that this condition shall not oblige the Buyer to accept goods substantially different from those ordered.
d) Goods will be supplied to the nearest British Standard Specification (if applicable) if a non-standard specification is ordered.
e) The Seller shall not be liable in any way whatsoever for short delivery of Goods unless a claim is notified to the Seller within 2 working days of delivery.
6 FORCE MAJEURE
Neither party shall have any liability for failure to perform or delay to the extent that such failure or delay is caused by force majeure (meaning war, labour disputes, serious adverse weather, accidents, government actions or any other matters which are beyond the reasonable control of the party affected).
If the force majeure event in question prevails for a period in excess of 3 months after the date on which the force majeure event begins, then the party which is not affected by the force majeure event shall be entitled to give notice to the other party to terminate this Agreement. The notice to terminate must specify the termination date, which must be not less than 30 clear days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, the Agreement will terminate on the termination date set out in the notice.
7 LIMITATION OF LIABILITY
a) The Seller warrants that the Goods correspond with description and sample are of satisfactory quality and where a particular purpose has been expressed in writing then the goods are fit for such purpose.
b) Any claim for breach of the above warranty must be made in writing within twenty eight days of receipt of the goods failing which the Buyer shall be deemed conclusively to have accepted the same.
c) It is the responsibility of the Buyer to inspect and test the Goods and each and every part thereof before use to see that they are in order.
d) Insofar as the Seller is liable for any costs claim or demand whatsoever of the Buyer, the liability of the Seller shall be limited to (at the discretion of the Seller):
(i) replacing the defective goods
(ii) making good the defect
(iii) allowing a full credit for the cost of the defective Goods or work done on them by the Seller.
e) Save as above, the Seller shall not be liable in any way whatsoever (including consequential loss) for any misrepresentation or breach of warranty or condition either expressed or implied whether by statute or otherwise or in way relating to the Goods. This limitation of liability is because the Seller has no control over the application of the Goods nor the environment in which they are used. The Buyer is at liberty to negotiate with the Seller on any particular order (but in writing prior thereto) for any amendment to this condition so that the limit of liability shall not apply or shall be amended. The Seller shall in its sole discretion decide whether or not such amendment or deletion shall apply but will normally enquire whether insurance cover can be obtained, the cost of which will be payable by the Buyer.
f) Please remember that timber is a natural product and is subject to movement and weathering as it seasons. It is not uncommon for small splits to occur in timber when drying and warping can occur when timber is allowed to dry too quickly. These will normally go back when humidity increases. This is the hand of nature at work and should not be considered a fault in the product.
8 PAYMENT TERMS AND CANCELLATIONS
We accept debit or credit card payments for all products purchased through our website, using Worldpay payment platform. Payment will be taken for your order at the time you place your order. However, payment does not mean your order has been accepted and if we reject your order for any reason or we cannot supply the products you have ordered, then we will credit your payment card with a refund.
a) Payment shall be made in full on delivery of the Goods unless the Buyer has been approved by the Seller in writing as a credit customer. In the latter case payment of the price of the Goods shall be made not later than the last day of the month succeeding the month in which the relevant invoice is issued.
b) The Seller shall be entitled to charge interest at a rate equal to 4% above the base lending rate of Barclays Bank PLC from time to time on all overdue payments from the day the payment was due until the date such payment is made in full.
c) The Seller shall be entitled to cancel or suspend orders, further deliveries or other services under this and any other contract between the parties hereto:
(i) if any payment is overdue or
(ii) if the Buyer shall have unreasonably failed to take delivery of any Goods.
(iii) if Goods are unavailable or out of stock.
(iiii) if the Seller identify a product or pricing error on the Website.
d) For the purpose of this condition time of payment shall be of the essence of the contract.
e) The Buyer shall not be entitled to withhold or set off payment for any reason whatsoever.
f) We may contact You by email or telephone to verify details before We are able to process and dispatch Your Order or We may be unable to accept it.
9 PASSING OF RISK AND PROPERTY
a) Ownership of the Goods remains with the Seller and will not pass to the Buyer until one of the following events occurs:-
(i) The Seller is paid for all of the Goods and no other amounts are owed by the Buyer to the Seller in respect of other goods supplier by the Seller
(ii) The Buyer sells the Goods in accordance with the agreement in which case ownership of the Goods will pass to the Buyer immediately before the Goods are delivered to the Buyer’s customer
b) Where the Goods are attached to or incorporated in other goods or are altered by the Buyer, ownership of the Goods shall not pass to the Buyer by virtue of the attachment, incorporation or alteration if the Goods remain identifiable and, where attached to or incorporated in other goods, can be detached or removed from them.
c) The Buyer must store the Goods separately from any other goods until:
(i) they become the Buyer’s property, or
(ii) they are attached to or incorporated in other goods, or
(iii) they are delivered to a purchaser from the Buyer.
d) If the Buyer is overdue in paying for the Goods or any other Goods supplied by the seller, the Seller may, if still the owner of the Goods, recover and resell them. The Seller may enter the Buyer’s premises for this purpose and may, if necessary, detach or remove the Goods from any other goods. This does not affect any other right of the Seller.
e) Until the Buyer has paid the Seller for the Goods and all other goods which the Seller has supplied to the Buyer:
(i) If the Buyer sells the Goods, the Buyer shall hold the proceeds of sale on trust for the Seller in a separate bank account.
(ii) The Seller may trace the proceeds of sale that the Buyer receives into any bank or other account which the Buyer maintains.
(iii) If the Buyer sells the Goods, the Seller may, by written demand, require the Buyer to assign to the Seller the Buyer’s rights to recover the price from its purchaser.
(iv) The Buyer must not assign to any other person any rights arising from a sale of the Goods without the Seller’s written consent.
f) Risks in the Goods passes to the Buyer on delivery in accordance with clause 3.
g) The Buyer must insure the Goods against all insurable risks for the price due to the Seller for the Goods.
h) If the Goods are destroyed by an insured risk before the Buyer has paid for them, the Buyer shall hold the insurance proceeds as the Seller’s trustee.
10 COPYRIGHT, ETC, INFRINGEMENT AND SPECIFICATION
a) The Buyer shall be solely responsible for the consequences of any patent, trademark, design, copyright or other infringement of commercial rights or legal obligations or specifications resulting from the Buyer’s specification, design or use of the goods and the Buyer shall fully indemnify the Seller in respect of all costs, charges and expenses incurred by the Seller as a result of such infringement or alleged infringement.
b) In the case of Goods to be made specially or to the Buyer’s specification pattern or design, once the manufacture of such Goods has commenced cancellation of the Order by the Buyer cannot be accepted in any circumstances.
11 RE-PURCHASE OF GOODS
The Seller shall be under no obligation to re-purchase from the Buyer any Goods ordered by the Buyer. If the Seller agrees to re-purchase any such Goods, the Seller will make a charge for so doing amounting to 25% of the price agreed to be paid for such Goods.
12 TIMBER TREATMENT
a) The Seller accepts no liability for loss by theft, fire or otherwise or damage to the Buyer’s property or any consequential loss sustained by the Buyer other than as a result of damage caused as the direct result of the negligence of the Seller or its employees. The Seller will not be liable for any damage sustained by the Buyer as result of delay in carrying out the treatment, such delay being caused by factors outside the control of the Seller.
b) The Seller does not warrant that timber supplied by the Buyer for treatment is of satisfactory quality or otherwise suitable for treatment.
c) The Seller does not warrant that separate items of timber, following treatment, will be the same colour or shade as other such items (whether treated as part of the same batch or not), but confirms that the treatment will be carried out in accordance with published process specifications. Any alleged defect must be notified to the Seller within twenty eight days of collection of timber after treatment.
d) in the Interests of health and safety and to prevent possible environmental pollution timber must be dry before transportation from the place of treatment and accordingly the minimum drying period as notified by the Seller must elapse before collection by the Buyer or transportation.
e) The Seller gives no warranty that treated timber may be painted over satisfactorily or at all, save as in accordance with Seller’s guidelines.
f) The Seller will not be held liable for any loss or damage suffered or incurred as a result of failure by the Buyer or others to observe the provisions of the foregoing sub-paragraphs.
g) The Seller shall be entitled to retain possession of timber or other goods sent to it by the Buyer for treatment or other purposes until such time as payment in full has been received for any moneys payable to the Seller. In the event of non-payment of any amount payable to it the Seller shall be entitled to sell such timber or other goods whether treated or not and to set-off the sale proceeds against any sums due from the Buyer to the Seller.
Each delivery of Goods under this contract shall be deemed to constitute a separate contact to which the terms and conditions hereof shall apply. Provided that these conditions shall be subject to and shall in no way affect the Seller’s rights hereunder to suspend or terminate the whole contract in the circumstances there mentioned.
If the Buyer:
a) makes default in or commits any breach of its obligations to the Seller hereunder or
b) is involved in any legal proceedings in which its solvency is involved or
c) (being a Company) commences liquidation or
d) ceases or threatens to cease to trade or if serious doubt arises as to the Buyer’s solvency
then and in any such case the Seller shall immediately become entitled (without prejudice to its other claims and rights under this contract) to suspend further performance of this contract for such time not exceeding six months as it shall in its absolute discretion think fit or (whether or not notice of such suspension shall have been given) to treat the contract as wrongfully repudiated by the Buyer and forthwith terminate the contract. The Seller will notify the Buyer of the exercise of its option to suspend or terminate this contract within a reasonable time of its becoming aware of the fact or default on the Buyer’s part giving rise to the Seller’s rights under this condition.
If at any time any dispute shall arise between the Buyer and the Seller in connection with this contract the Seller may give notice in writing of the existence of such dispute to the Buyer and require the same to be referred to the arbitration of a person mutually agreed upon or failing agreement to some person appointed by the President for the time being of the British Wood Preserving Association. The submission shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
This contract shall be interpreted according to the Law of England and the Buyer hereby accepts the jurisdiction of such Courts, whether in England or elsewhere, as the Seller may nominate for the purpose of trying any action arising out of this contract.
17 TRADING TERMS (ADDITIONAL)
a) All prices are exclusive of V.A.T. unless otherwise stated and the Buyer shall pay any and all taxes, duties and other government charges payable in respect of the goods.
b) PAYMENT. Cash on collection / before delivery.
c) Nett Monthly Terms are available to approved accounts only. Interest will be charged on overdue accounts.
d) The property of all goods supplied by Timberstore Ltd., shall not pass to the purchaser until payment of all monies due to South Bucks Estates. by the purchaser shall have been made.
e) DELIVERY. All prices are based on collection from our yard. DELIVERY CHARGES vary depending in distance from depot.
f) We reserve the right to change specification and price at any time without notice.
18 CREDIT CARD SECURITY
All credit card numbers are encrypted in the software when the order is placed using 128 bit encryption. They are only decrypted after they reach our computer. They are not held in clear text on any web site.