Trade Terms & Conditions
Bawden Contracting Services t/a Fencing Essentials – Standard Conditions of Sale
1. Definition of Terms and INTERPRETATION
1.1 The following definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, persons, company or firm who purchases the Goods from Bawden Contracting Services t/a Fencing Essentials.
Fencing Essentials: Bawden Contracting Services t/a Fencing Essentials (Company No: 2520691) whose registered office is situated at 143 Countess Road, Amesbury, Salisbury, Wiltshire, SP4 7AR.
Contract: the agreement between Bawden Contracting Services t/a Fencing Essentials and the Buyer for the sale and purchase of Goods, incorporating the Order and these conditions and supporting paperwork.
Delivery Point: the place where delivery of the Goods is to take place under condition 8.
Company Directors: means the individual or individuals who are listed Directors of the Company.
Goods: any Stocked Goods or Non-Stocked Goods agreed in the Contract to be supplied to the Buyer by Fencing Essentials (including any part or parts of them).
Non-Stocked Goods: any goods that are not held in stock by Fencing Essentials and which are purchased specifically at the Buyer’s request and/or made to the Buyer’s order, including bespoke custom timber goods.
Order: each order for Goods placed by the Buyer (which, for the avoidance of doubt, includes each acceptance by the Buyer of Fencing Essentials’ quotation, if provided, for the supply of Goods and any associated services).
Stocked Goods: any goods that are held in stock by Fencing Essentials from time to time in the normal course of its business (but excluding any Non-Stocked Goods).
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 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.
1.4 A reference to writing or written includes fax, digital messaging and email.
1.5 Words in the singular include the plural and in the plural include the singular.
1.6 A reference to one gender includes a reference to the other gender.
1.7 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 Each Order shall, independently, be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.4 These conditions will apply to all Fencing Essentials' sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of Fencing Essentials. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Fencing Essentials which is not set out in the Contract. Nothing in this condition shall exclude or limit Fencing Essentials' liability for fraudulent misrepresentation.
2.5 No Order shall be deemed to be accepted by Fencing Essentials until a written acknowledgement of the Order is issued by Fencing Essentials or Fencing Essentials delivers the Goods to the Buyer, before acknowledgement.
2.6 The Buyer shall ensure that the terms of its Order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until Fencing Essentials issues an acknowledgement of Order to the Buyer or despatches the Goods to the Buyer.
2.8 Any quotation is valid for a period of 30 days only from its date, provided that Fencing Essentials has not previously withdrawn it (unless otherwise agreed in writing).
2.9 A Contract shall come into existence on the earlier of the following events: (i) when Fencing Essentials issues an acknowledgement of Order to the Buyer; or, (ii) when Fencing Essentials despatches the Goods.
3. ORDER CANCELLATION
3.1 Once a Contract for Non-Stocked Goods has come into existence, the Buyer may not alter or cancel its Order, or the Contract, in any circumstances.
3.2 In exceptional circumstances, Orders for Stocked Goods may be accepted for return at the sole discretion of the Company Directors and with the prior written approval of the Company Directors. Where such approval is given a handling charge of up to 20% of the price of the Stocked Goods ordered will be payable by the Buyer for their return; and, the Buyer is responsible for the safe and complete return of the Stocked Goods to Fencing Essentials’ premises.
4.1 The quantity and description of the Goods shall be as set out in Fencing Essentials' quotation, and confirmed by the acknowledgement of the Order, and it is the responsibility of the Buyer to ensure the suitability and accuracy of their order requirements.
4.2 All samples, drawings, descriptive matter, specifications and advertising issued by Fencing Essentials and any descriptions or illustrations contained in Fencing Essentials' websites, digital media, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
5.1 Unless otherwise agreed by Fencing Essentials in writing, the price for the Goods shall be the price set out in Fencing Essentials' price list published on the date of delivery or deemed delivery.
5.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods, as appropriate.
6.1 The quantity of any consignment of Goods as recorded by Fencing Essentials on despatch from Fencing Essentials' place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.2 Fencing Essentials shall not be liable for any non-delivery of Goods (even if caused by Fencing Essentials' negligence) unless the Buyer gives written notice to Fencing Essentials of the non-delivery within seven days of the date when the Goods would in the ordinary course of events have been received.
6.3 Any liability of Fencing Essentials for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.4 Any discrepancy relating to the quantity, quality or description of the Goods must be communicated to Fencing Essentials within 48 hours of delivery by telephone and confirmed in writing within seven days of the time of delivery.
7.1 Subject to condition 8.5, risk in the Goods shall pass to the Buyer on delivery.
7.2 Ownership of the Goods shall not pass to the Buyer until Fencing Essentials has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to Fencing Essentials from the Buyer on any account.
7.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as Fencing Essentials' bailee;
(b) store the Goods (at no cost to Fencing Essentials) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Fencing Essentials' property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on Fencing Essentials' behalf for their full price against all risks to the reasonable satisfaction of Fencing Essentials. On request the Buyer shall produce the policy of insurance to Fencing Essentials.
7.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
(b) any such sale shall be a sale of Fencing Essentials' property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
7.5 The Buyer's right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between Fencing Essentials and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.
7.6 Fencing Essentials shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Fencing Essentials.
7.7 The Buyer grants Fencing Essentials, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
7.8 Where Fencing Essentials is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by Fencing Essentials to the Buyer in the order in which they were invoiced to the Buyer.
7.9 On termination of the Contract, howsoever caused, Fencing Essentials' (but not the Buyer's) rights contained in this condition 7 shall remain in effect.
8.1 Unless otherwise agreed in writing by Fencing Essentials, delivery of the Goods shall take place at Fencing Essentials' place of business or such other Delivery Point as agreed between the parties.
8.2 The Buyer shall take delivery of the Goods as soon as possible after having received notification from Fencing Essentials that they are available for delivery but no later than within ten days unless previously agreed.
8.3 Any dates specified by Fencing Essentials for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
8.4 Subject to the other provisions of these conditions Fencing Essentials shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Fencing Essentials's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
8.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or Fencing Essentials is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, personnel, documents, vehicular access, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by Fencing Essentials' negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) Fencing Essentials may store the Goods until re-delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, original and re-delivery charges, storage and insurance).
8.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and/or manual labour for unloading the Goods in a timely manner. Fencing Essentials reserve the right (in its sole discretion) to charge for an excessive waiting or unloading time in addition to the price for the Goods.
8.7 If Fencing Essentials delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity accepted by Fencing Essentials, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
8.8 Fencing Essentials may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
8.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
9.1 Subject to condition 9.4, payment of the price for the Goods is due in pounds sterling within 30 days of the invoice date unless otherwise agreed.
9.2 Time for payment shall be of the essence.
9.3 No payment shall be deemed to have been received until Fencing Essentials has received cleared funds.
9.4 All payments payable to Fencing Essentials under the Contract shall become due immediately on its termination despite any other provision.
9.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Fencing Essentials to the Buyer.
9.6 Failure by the Buyer to pay Fencing Essentials any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to Fencing Essentials on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of HSBC (UK) Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. Fencing Essentials reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
10.1 Where Fencing Essentials is not the manufacturer of the Goods, Fencing Essentials shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to Fencing Essentials.
10.2 Fencing Essentials warrants that (subject to the other provisions of these conditions) on delivery, the Goods shall:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
(b) be reasonably fit for purpose; and
(c) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to Fencing Essentials in writing and Fencing Essentials has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of Fencing Essentials. Where the Goods are used in conjunction with living plants, hedges or trees, Fencing Essentials makes no warranties on its goods either expressly, implied or otherwise concerning the effects of the Goods on root or plant growth or general health.
10.3 Fencing Essentials shall not be liable for a breach of the warranty in condition 10.2 unless:
(a) the Buyer gives notice by telephone within 48 hours and confirms by written notice of the defect to Fencing Essentials, and, if the defect is as a result of damage in transit to the carrier, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) Fencing Essentials is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by Fencing Essentials) returns such Goods to Fencing Essentials' place of business at the Buyer’s expense for the examination to take place there.
10.4 Fencing Essentials shall not be liable for a breach of the warranty in condition 10.2 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow Fencing Essentials' oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of Fencing Essentials.
10.5 Subject to condition 10.3 and condition 10.4, if any of the Goods do not conform with the warranty in condition 10.2 Fencing Essentials shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if Fencing Essentials so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goods which is defective to Fencing Essentials.
10.6 If Fencing Essentials complies with condition 10.5 it shall have no further liability for a breach of the warranty in condition 10.2 in respect of such Goods.
11. LIMITATION OF LIABILITY
11.1 Subject to condition 6, condition 8 and condition 10, the following provisions set out the entire financial liability of Fencing Essentials (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions, including any deliberate personal repudiatory breach;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these conditions excludes or limits the liability of Fencing Essentials:
(a) for death or personal injury caused by Fencing Essentials' negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for Fencing Essentials to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
11.4 Subject to condition 11.2 and condition 11.3:
(a) Fencing Essentials' total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
(b) Fencing Essentials shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12.1 Fencing Essentials may assign the Contract or any part of it to any person, firm or Fencing Essentials.
12.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Fencing Essentials.
13. FORCE MAJEURE
Fencing Essentials reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Fencing Essentials including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 28 days, the Buyer shall be entitled to give notice in writing to Fencing Essentials to terminate the Contract.
14.1 In exceptional circumstances and only at the discretion of the Directors, Goods may be accepted for return. In these circumstances a handling charge of 20% will be applied and the Buyer is responsible for the safe and complete return of the Goods. Fencing Essentials will not accept the return of non-stock Goods purchased by specific request of the Buyer, or Goods made to specifically to order.
14.2 Each right or remedy of Fencing Essentials under the Contract is without prejudice to any other right or remedy of Fencing Essentials whether under the Contract or not.
14.3 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.
14.4 Failure or delay by Fencing Essentials in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.5 Any waiver by Fencing Essentials of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.7 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
14.8 Any Goods consisting of pesticides and chemicals are sold on the basis that they will be used by competent end users within the guidelines of the FEPA (Food and Environment Protection Act) 1985. Any such Goods are sold on the understanding that they are used strictly within the latest Approved Recommendations for such products. The Buyer acknowledges that when using pesticides and chemicals that they are qualified to do so and that they will ensure that any person that comes into contact with such Goods are similarly qualified and Fencing Essentials accepts no responsibility for any losses, damages or injuries incurred as a result of any such misuse.
15.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email or fax:
(a) (in case of communications to Fencing Essentials) to its registered office or such changed address as shall be notified to the Buyer by Fencing Essentials, or to any email address provided to the Buyer by Fencing Essentials; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a Fencing Essentials) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to Fencing Essentials by the Buyer.
15.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first-class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery;
(c) if sent by fax on a working day prior to 2.00 pm, at the time of transmission and otherwise on the next working day;
(d) if sent by email, on the acknowledgement of receipt by the recipient.
15.3 Communications addressed to Fencing Essentials shall be marked for the attention of a Director.