1. Definitions & Interpretations
1.1 – In these conditions: "Buyer" means the individual firm company or other party who purchases the Goods from Pennyhill Timber Ltd; "Contract" means the contract for the sale and purchase of the Goods made between Pennyhill Timber Ltd and the Buyer; "direct, indirect or consequential loss" includes, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss; "Goods" means the articles, and materials, and things or any of them comprised in the Contract between the Buyer and Pennyhill Timber Ltd; "insolvent" means: the Buyer becoming unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; the Buyer allows any execution to be levied on its property; the Buyer has a bankruptcy order made against it; the appointment of an administrator, administrative receiver or receiver over all or part of the Buyer's property; the application for the appointment of a administrator; the Buyer makes any arrangement or compromise with its creditors; the passing of a resolution for the winding up or a meeting to pass such a resolution (except for the purposes of a solvent liquidation, reconstruction or amalgamation); the presentation of a winding-up petition or a petition for bankruptcy; the ceasing of, or threatening to cease carrying on business; "working days" means Monday to Friday excluding bank holidays.
1.2 – A reference to any 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 A reference to one gender shall include all other genders. Words in the singular include the plural and in the plural include the singular.
1.4 Condition headings do not effect the interpretation of these conditions.
2. Incorporation of Conditions
2.1 All orders for Goods shall only be accepted by Pennyhill Timber Ltdsubject to these conditions and (subject to any variation under condition 2.2) shall exclude all other terms and conditions (including any which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document whether presented by the Buyer, referred to, or otherwise).
2.2 No variation or addition to these conditions shall be incorporated into the Contract unless such variations or additions have been expressly agreed to by Pennyhill Timber Ltd in writing, and have been signed by a director of Pennyhill Timber Ltd. The Buyer acknowledges that it has not relied on any statement, promise, representation or warranty made by or on behalf of Pennyhill Timber Ltd which is not set out in the Contract. Nothing in this condition shall exclude or limit Pennyhill Timber Ltd's liability for fraudulent misrepresentation.
2.3 Any quotation or estimate made by or on behalf of Pennyhill Timber Ltd whether in writing and/or orally, is an invitation only to the Buyer for it to make an offer. The quotation shall only be valid for 30 days and prices stated in any quotation or estimate are subject to change (as per condition 10.1).
2.4 All orders made in pursuance of any quotation or estimate shall be deemed to be an offer by the Buyer to buy the Goods subject to these conditions.
2.5 – No order placed by the Buyer shall be binding upon Pennyhill Timber Ltd unless and untilsuch order is accepted by Pennyhill Timber Ltd in writing on its acknowledgement of order form.2.6 The Buyer shall ensure that the quantities specified in its order and any specifications provided are complete and accurate. Subject to condition 7.1, the quantity and description of the Goods shall be as set out in Pennyhill Timber Ltd's acknowledgement of order.
3. Buyer's Designs
3.1 Where Goods are made or supplied to the Buyer's own specification measurements or designs (including fine or specific tolerances required by the Buyer beyond those generally accepted in the building trade) Pennyhill Timber Ltd accepts no liability for (or losses arising from) the suitability and fitness of the specification or design or for the fine tolerances requested (unless in the case of the fine tolerances, Pennyhill Timber Ltd has acknowledged that it is prepared to accept such an order).
3.2 The Buyer warrants that such specifications or designs do not infringe any patent, trade mark, registered design, copyright or any other intellectual property right of any third party. The Buyer shall indemnify Pennyhill Timber Ltdin full for all and any loss, damage, or expense whatsoever (including professional costs) which Pennyhill Timber Ltd may incur, suffer or be put, arising from the performance of the Contract by reason of any infringement of such intellectual property right.
4.1 Deliveries normally occur between 0700 and 1700. Exact timings cannot be specified. The date or dates (if any) specified by Pennyhill Timber Ltd in the Contract shall only constitute the times by which Pennyhill Timber Ltd expects to effect delivery, and time of delivery shall not be of the essence.
4.2 Unless otherwise stated, all deliveries will be made at the kerbside or driveway. Pennyhill Timber Ltd is not responsible for any additional lifting or carrying of the Goods. Pennyhill Timber Ltd reserves the right not to unload Goods unless payment in full has been received and delivered Goods have been signed for.
4.3 When requested by the Buyer in writing, Pennyhill Timber Ltd shall either endeavour to expedite delivery of the Goods (but such request shall notmake time of delivery of the essence), or (as appropriate) delay the physical delivery of the Goods for a period of up to 28 days.
4.3.1 In the event that delay in physical delivery continues for a period in excess of 28 days then Pennyhill Timber Ltd may:
4.3.2 terminate the Contract; and
4.3.3 sell the Goods to another person; and
4.3.4 seek damages for all direct, indirect and consequential loss suffered by Pennyhill Timber Ltd as a result of the Buyer's default.
4.3.5 If Pennyhill Timber Ltd shall be prevented from delivering the Goods in accordance with the Contract as a result of delay or default on the part of the Buyer and the Contract is not cancelled, Pennyhill Timber Ltd shall be entitled to reschedule the date for such delivery to such time as it shall reasonably require taking into account its commitments to third parties.
4.4.1 Subject to the other provisions of these conditions, Pennyhill Timber Ltd's financial liability for any late delivery shall be limited to the Contract Price and Pennyhill Timber Ltd shall not be responsible for any direct, indirect or consequential loss, costs damages, charges, or expenses caused by any delay in the delivery of the Goods resulting from:
4.4.2 any failure of the Buyer to take delivery at the appropriate time;
4.4.3 any failure of the Buyer to give proper delivery instructions, or failure to obtain appropriate authorisations to permit the delivery of the Goods;
4.4.4 any delay or postponement of delivery requested by the Buyer pursuant to condition 6.3.
4.4.5 No delaying in delivery resulting from Pennyhill Timber Ltd's default shall entitle the Buyer to rescind the Contract unless the delay exceeds 5 days.
4.5.1Pennyhill Timber Ltd may deliver the goods by separate instalments. Each separate instalment may be invoiced separately. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
6.1 Although Pennyhill Timber Ltd endeavours to deliver Goods that are as near as possible to quantity ordered, standard packaging and measurements means that there may be over deliveries of up to 10% or under deliveries of up to 5%. The Buyer is not entitled reject the goods or any of them by reason of such a surplus or shortfall. Pennyhill Timber Ltd reserves the right to charge for over deliveries at the pro rata rate.
6.2 Subject to condition 7.3 where Pennyhill Timber Ltd has delivered the Goods, it undertakes to make up any shortages (which exceed the tolerance level in condition 7.1). Where the manufacturer has delivered the Goods, Pennyhill Timber Ltd shall not be liable for any shortages but will use reasonable efforts to procure that the manufacturer will make up such shortfall.
6.3 Pennyhill Timber Ltd shall only be bound by its undertaking to make up procure the making up, of shortages set out in condition 7.2 if:
6.3.1 the Buyer shall have notified Pennyhill Timber Ltd in writing (and the carrier if other than Pennyhill Timber Ltd) of such shortage, within three days of receipt of the Goods with details of the date and time of delivery, the invoice number, and the delivery advice number (if any); or
6.3.2 in the event that they Buyer has not received the Goods, it has notified Pennyhill Timber Ltdof this fact within 14 days of the receipt of Pennyhill Timber Ltd's invoice for the Goods
Unless the Buyer has requested otherwise, and a manager of Pennyhill Timber Ltd has agreed to such request in writing, Pennyhill Timber Ltd may supply substitute Goods of equivalent type and quality in performance of the Contract.
8.1 – If the Buyer requires cancellation of the Contract this will only be accepted at the sole discretion of Pennyhill Timber Ltd and upon such terms as Pennyhill Timber Ltd may determine.
8.2 Pennyhill Timber Ltdwill exchange or refund any unopened and unused Goods which are returned to Pennyhill Timber Ltd within 28 days of purchase, as sold, on production of an original receipt.
No refunds or credit notes will be given on any bespoke Goods or specially ordered Goods unless they fail to satisfy the warranty in condition 14.1. We do not accept returns on any bagged products.
9.1 Unless otherwise agreed by Pennyhill Timber Ltd in writing the price for the Goods shall be the price displayed in store on the date of acceptance of the Buyer's order.
9.2 The price for the Goods does not include Value Added Tax, (which will be charged at the applicable rate) carriage, or pallets (which will be charged to the Buyer).
10.1 The Buyer shall make payment of each and every invoice in cleared funds in full without contra or set off. For all Buyers (other than Buyers with a credit account), invoices are payable upon receipt of the Goods. For Buyers with a credit account, invoices shall be due for payment on the last working day of the month following the month of Pennyhill Timber Ltd's invoice and if payment is not received by the fifteenth of the next month, Pennyhill Timber Ltd may put a stop on the account, and may refuse to accept further orders. Time of payment is of the essence and is critical to the performance of the Contract by the Buyer.
10.2 Without prejudice to Pennyhill Timber Ltd's right to enforce payment, interest at the rate of 5% per annum above LIBOR for the time being may be charged from day to day on all monies outstanding after the due date of payment until the actual date of payment (whether before or after judgment). The Buyer shall not be entitled to receive any discount referred to in the Contract if payment is not received by the due date.
10.3 If charged, interest shall become due and payable pursuant to condition 11.2 notwithstanding the fact that a portion of the account or invoice is the subject of any dispute or query.
10.4 If the Buyer shall pay any account or any part of it and the payment is subsequently dishonoured, Pennyhill Timber Ltd may debit the Buyer's account with Pennyhill Timber Ltd with an administrative charge proportionate to the time cost incurred by Pennyhill Timber Ltd, which may include any charge levied by Pennyhill Timber Ltd's bankers relating to the handling of such dishonoured payment, and such an administrative charge, if levied, shall be immediately due and payable.
11. Credit Accounts
11.1 Credit accounts may be opened at the discretion of Pennyhill Timber Ltd subject to the provision of the information set out below and to satisfactory credit references being obtained. Pennyhill Timber Ltd may impose such credit limit on the Buyer as it deems reasonable and may occasionally vary this limit without giving prior notice to the Buyer. The information required is:
11.1.1 the full names and home addresses of two of proprietors or directors;
12.1.2 the names of two persons firms or companies with whom the Buyer has had previous trade dealings; and
11.1.3 the name and address of the Buyer's bankers and its bank account details together with written authority for Pennyhill Timber Ltd to contact the trade referees, the bankers and/or a credit reference agency for appropriate references.
11.2 It is a condition of opening a credit account with Pennyhill Timber Ltd that the directors of an incorporated Buyer jointly and severally guarantee performance of all the Buyer's financial obligations to Pennyhill Timber Ltd.
11.3 The Buyer agrees that Pennyhill Timber Ltdmay process the information to assess the creditworthiness of the Buyer (and of its directors) for administrative and fraud prevention purposes. Pennyhill Timber Ltdmay also disclose such information to third parties such as: other companies in the same group as Pennyhill Timber Ltd; its professional advisers; credit reference and debt recovery agencies, but Pennyhill Timber Ltd shall not sell this information. Pennyhill Timber Ltd is registered under the Data Protection Act 1998, and shall process such information in accordance with that Act.
11.4 If at any time the Buyer being a credit account customer alters its constitution (being a company or limited liability partnership) or (being a sole trader or partnership) becomes incorporated or amalgamated with others, the Buyer shall give prior written notice toPennyhill Timber Ltd of the intended change should the Buyer wish to continue credit account facilities following the intended change. Pennyhill Timber Ltdmay commence trading with the changed entity at its sole discretion and will not be deemed to do so until a written acknowledgement and acceptance is issued by Pennyhill Timber Ltd's credit controller.
12. Auditors Certificate
In the event of a dispute arising between Pennyhill Timber Ltdand the Buyer concerning the sum or sums to which Pennyhill Timber Ltd is entitled in addition to the Contract price as provided for in these conditions, then, a certificate from Pennyhill Timber Ltd's auditors acting as experts and certifying such sums or sums shall (in the absence of manifest error) be conclusive and binding upon Pennyhill Timber Ltd and the Buyer. Any sum certified by such auditors shall be paid by the Buyer within 30 days of the date of such certificate.
13.1 Pennyhill Timber Ltd warrants that upon delivery the Goods (other than second hand goods or goods which are rejects at the point of sale) shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and reasonably fit for it normal purpose.
13.2 Pennyhill Timber Ltd shall use its best efforts to pass on to the Buyer the benefit of all manufacturer's warranties and guarantees of the Goods.This shall not apply to Goods which are second hand or damaged at the point of sale. Pennyhill Timber Ltd does not provide any other warranty in relation to the Goods.
13.3 Subject to conditions 14.4 and 14.5 if any of the Goods do not conform with the warranty in condition 14.1, Pennyhill Timber Ltd's liability in respect of any defect is, at Pennyhill Timber Ltd'soption, limited to repairing, replacing (or procuring the repair or replacement by the manufacturer) of the defective Goods (or the defective part) or to making a pro rata refund. Pennyhill Timber Ltd shall be given a reasonable period in which to complete the necessary repair or deliver the replacement or otherwise rectify such defect. If Pennyhill Timber Ltd complies with this condition 14.3, it shall have no further liability for breach of the warranty in condition 14.1 in respect of such Goods.
13.4 Pennyhill Timber Ltd liability under this warranty shall automatically cease if:
13.4.1 the Buyer fails to notify Pennyhill Timber Ltd of the damage/defect as soon as possible after becoming aware of them, or, where the damage/defect has arisen in transit, the Buyer fails to notify Pennyhill Timber Ltdwithin 3 days of the Buyer discovering the defect or ought to have discovered the defect; or
13.4.2 the Buyer makes any further use of the Goods after giving such notice; or
13.4.3 the Buyer shall not have paid for all Goods under the Contract by the due date referred to in condition 11.1; or
13.4.4 the defect arises because the Buyer failed to follow Pennyhill Timber Ltd oral and written directions for storage, use etc. (or if there are none, good trade practice); or
13.4.5 the Buyer, when requested by Pennyhill Timber Ltd so to do, either fails to return the defective Goods to Pennyhill Timber Ltd as soon as possible, but in any event within 21 days of such request, or, fails to make the defective Goods available for inspection by Pennyhill Timber Ltd, its agents, and where applicable by the manufacturer; or
13.4.6 the Buyer permits persons other than Pennyhill Timber Ltd its employees or agents to effect or attempt any repair or replacement or other rectification of defective Goods.
13.5 The Buyer shall be deemed to have accepted the Goods if the Buyer either uses the Goods, or has not notified Pennyhill Timber Ltd of any defective within the periods set out in condition 13.4.1.
13.6 The warranty set out in condition 14.1 shall be in lieu of any warranties, conditions or undertakings whether implied by statue or common law (except for the conditions implied by section 12 of the Sale of Goods Act 1979) which are expressly excluded from the Contract.
14. Limitation of Liability
14.1 Subject to conditions 6.7 and 14:
14.1.1 Pennyhill Timber Ltd's financial liability to the Buyer (including any liability for the acts and omissions of its employees, agents and sub-contractors) under contract, tort, (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising from or in connection with the performance of any Contract, whether for:126.96.36.199 personal injury; or
188.8.131.52 damage to tangible property; or
184.108.40.206 loss of profits; or
220.127.116.11 other financial loss; or
18.104.22.168 any combination of these shall be limited to £250,000;
14.1.2 Pennyhill Timber Ltd's liability to the Buyer under condition 15.1.1 shall also be limited to that proportion of the loss or damage (including interest and costs) ascribed to Pennyhill Timber Ltdby a court, having regard to Civil Liability (Contribution) Act 1978 as if it were applied to all the other parties responsible, whether or not such other parties were in a position to make their contribution.
14.1.3 Except as set out in this Condition 15, Pennyhill Timber Ltd shall not be liable for any claim for direct or indirect, consequential loss, injury, damage, claims, compensation whatsoever (howsoever caused) made by the Buyer or any third party against Pennyhill Timber Ltd arising from or in connection with the Contract.
14.2 Nothing in these conditions excludes or limits the liability of Pennyhill Timber Ltd for death or personal injury resulting from the negligence of Pennyhill Timber Ltd its employees or agents, or for fraud or fraudulent misrepresentation.
15. Ownership of Goods
15.1 The Goods are at the risk of the Buyer from the time of deemed delivery. The Buyer shall affect appropriate insurance cover over the Goods from deemed delivery with a reputable insurance company.
15.2 Notwithstanding that the risk in the Goods passes to the Buyer at the time of delivery, ownership of the Goods comprised in theContract shall be retained by Pennyhill Timber Ltd until payment in full (in cash or in cleared funds) has been received in respect of:
15.2.1 the Goods; and
15.2.2 all other sums due from the Buyer in respect of other goods provided by Pennyhill Timber Ltd;
15.3 Pennyhill Timber Ltd shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Pennyhill Timber Ltd.1
5.4 The Buyer may resell Goods before ownership has passed to it solely on the following conditions:
15.4.1 any sale is made in the ordinary course of the Buyer's business at full market value;
15.4.2 the Buyer sells Pennyhill Timber Ltd property on its own behalf as principal (and not act as agent for Pennyhill Timber Ltd); and
15.4.3 the Buyer has not become insolvent.
15.5 Until ownership of the Goods has passed to the Buyer, the Buyer shall hold the Goods as bailee, shall take proper care of the same and keep them in such manner that they may be clearly identified as belonging to Pennyhill Timber Ltd.
15.6 The Buyer grants Pennyhill Timber Ltd, its employees and agents an irrevocable licence to enter upon any of its premises where the Goods are stored at any time in order for Pennyhill Timber Ltd to inspect them, or where the Buyer's right to possession has terminated, to recover them.
15.7 If at the time of the termination of the Buyer's power of sale under condition 16.4 any Goods comprised in the Contract are in the custody or control of any third party, or on the premises of a third party the Buyer shall use its best efforts to allow Pennyhill Timber Ltd to recover the goods from the third party or its premises, (including but not limited to immediately providing Pennyhill Timber Ltd with written authority enter premises and to collect Goods on behalf of the Buyer).
16.1 If the Buyer shall:
16.1.1 fail to give delivery instructions; or fail to take delivery of the Goods; or fail to make any payment when it becomes due; or
16.1.2 shall commit any other breach of the Contract and fail to remedy the same within seven days of receiving Pennyhill Timber Ltd's request in writing so to do; or
16.1.3 shall become insolvent; or then Pennyhill Timber Ltd may:
16.1.4 defer or cancel any further deliveries or work under the Contract and treat the Contract as terminated; and
16.1.5 treat any other contract between Pennyhill Timber Ltd and the Buyer as terminated; but without prejudice to Pennyhill Timber Ltd's right to: either receive any unpaid price for Goods delivered under the Contract; or to repossess the Goods; and to damages for loss of profit suffered in consequence of such termination.
16.2 Upon the termination of a Contract (whether under this condition 17 or otherwise) shall not affect the accrued rights of Pennyhill Timber Ltdor the Buyer.
17. Force Majeure
Pennyhill Timber Ltd 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 for any direct, indirect or consequential loss or damage suffered by the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental action, war or national emergency, civil commotion, acts of terrorism, strikes (whether or not relating to Pennyhill Timber Ltd or the Buyer's workforce), restraints or inability or delay in obtaining supplies, provided that if the event in question continue for a continuous period in excess of 30 days either Pennyhill Timber Ltd or the Buyer shall be entitled to give written notice to the other to terminate the Contract.
18.1 Pennyhill Timber Ltd shall be entitled to appoint one or more sub-contractors to carry out one or all of its obligations under these conditions.
18.2 Where Pennyhill Timber Ltd introduces a sub-contractor to a Buyer and a separate contract is made between the sub-contractor and the Buyer,Pennyhill Timber Ltd will not accept any responsibility for delays quality or workmanship occasioned by the sub-contractor.
19. Health and Safety at Work Act 1974
The attention of the Buyer is drawn to the provisions of Section 6 of the Health and Safety at Work Act 1974. Pennyhill Timber Ltd may make available upon request information on its products to ensure that as far as is reasonably practicable they are safe and without risk to health when properly used. It is the responsibility of the Buyer to take such steps as are necessary to ensure that such information relevant to the Goods is made available to its employees agents or any person to whom the Buyer supplies them and to any other person to whom the Buyer should reasonably consider any such information should be given.
20.1 If any provision of these conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
20.2 If any provision of these conditions is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the condition in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
21.1 Pennyhill Timber Ltdreserves the right to assign, sub-contract or sub-let the fulfilment of the Contract or any part of it without the consent of the Buyer. The Buyer shall not be entitled to assign the benefit or burden of the Contract without the prior consent in writing of Pennyhill Timber Ltd.
21.2 Each Contract constitutes the entire agreement and understanding of Pennyhill Timber Ltdand the Buyer and supersedes any previous agreement between Pennyhill Timber Ltdand the Buyer relating to the subject matter of that Contract.
21.3 Any waiver by Pennyhill Timber Ltd of any breach of, or any default under any provision of the Contract shall not be a waiver of any subsequent breach or default, and the failure or delay by Pennyhill Timber Ltd to enforce any of its rights under the Contract shall be a waiver of such rights.
21.4 All notices given concerning the Contract shall be in writing, and shall be hand delivered, sent by first class post or be sent by fax to the invoicing address provided by the Buyer, or to the relevant Pennyhill Timber Ltd branch and to Pennyhill Timber Ltd head office.
21.5 No person who is not a party to a Contract (other than lawfully successors and assigns) may enforce the terms of any Contract under the Contract (Rights of Third Parties) Act 1999.
21.6 In the event of a dispute arising out of any Contract, Pennyhill Timber Ltd and the Buyer may attempt to resolve such dispute by mediation in accordance with the Centre for Effective Dispute Resolution Model Procedure.
21.7 These conditions and each and every Contract shall be governed by English law and Pennyhill Timber Ltd and the Buyer submit to the exclusive jurisdiction of the English courts.