1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from the Company.
Company: Oakdale Fencing Ltd whose registered office is at Blackhorse Road, Exhall, Coventry, CV7 9FW Company No. 1705650
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
Working day: any day which is not a public holiday or a Saturday or a Sunday
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 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 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 These conditions apply to all the Company’s 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 the Company Secretary or a Director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company in the manner appearing in clause 2.9 below or with regards to internet orders a mail confirming a delivery date.
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 the Company despatches an acknowledgement of order to the Buyer and payment is received in full. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.8 Each and every order made by the Buyer shall form a separate contract with the Company
2.9 In the event of the Buyer requesting a quotation from the Company a contract shall only come into existence once the Company has confirmed in writing to the Buyer that it accepts the Buyer’s written order and payment is received in full. All communications before that event shall be regarded as negotiations.
2.10 The Company may at its discretion accept or reject the cancellation of any order. The Company will in no circumstances accept the cancellation of an order for Goods which are to be or have been specially made or obtained. Once such an order for specially made or obtained goods has been accepted by the Company it should be concidered final. In circumstances where the Company accepts the cancellation of standard stock items, the Company reserves the right to make a charge in respect of carriage, storage, disposal and/or re-stoking of the Goods.
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures and website are intended as informational only and do not form part of any contractual obligation.They shall not form part of the Contract and we do not offer a sale by sample.
3.3 The Company shall have the option to supply all or any of the goods in either imperial or metric size to the nearest equivalent measure notwithstanding any description contained in any contractual or other documentation or description relating to the Products. All dimensions qouted are approximate and will have a slight variant, (As the sawn timber is not regularised we can not guarantee that the timbers will be uniform in dimension). All sizes quoted are approximate and should be used for guidance only.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Customers home address. If delivery is to take place elsewhere the Company shall only be obliged to deliver to the Customers home address or a site over which the Buyer has control or a legitimate presence thereon for the purpose of the Buyer’s business.
4.2 The Buyer shall take delivery of the Goods within 14 days of the Company giving notice that the Goods are ready for delivery/collection.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate, and we will do our best to meet that day. Any time indication given for delivery shall be taken as our best intention to meet the time specified. But not a guarantee of time. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these conditions the Company 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 or non delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to any financial compensation or to terminate or rescind the Contract unless such delay exceeds 120 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 In the event that goods are delivered by pallet the Company reserves the right to charge for pallets in addition to the delivery costs but the Company may credit the Buyer with the cost of the pallets if the Buyer returns the pallets in good condition having stored them at his own risk and cost. The Company may in its sole discretion collect pallets within its normal distribution radius subject to receiving reasonable notice from the Buyer
4.7 The Buyer is solely responsible for disposal of any packaging and resultant waste relating thereto and the Buyer will comply with all applicable laws and obtain all such licences and permissions as may be required relating to the storage, transport, sale or other disposal of such waste and the Buyer will indemnify the Company for any costs, claims, expenses and liability whatsoever resulting from any breach of this clause 4.7.
4.8 The Company shall not be liable in the event that the quantity of Goods it delivers to the Buyer is less than the Buyer order unless the Buyer notifies the Company in writing within three working days of the numbers delivered short and in such circumstances the Company’s liability shall be restricted to making good such shortage.
4.9 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.10 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.
4.11 The Buyer shall indemnify the Company for the cost of any delay in delivery in the event that delivery is attempted but the Company is unable to deliver because delivery is refused or impractical because of restrictions on site
4.12 The Company shall be deemed to have delivered the Goods if it delivers them to the nearest kerbside or hard surface access way capable of access by the Company’s vehicle to the Delivery Point and such delivery shall be at the risk of the Buyer
4.13 In the event that the Buyer returns the Goods for any reason the Company may in its absolute discretion make a handling charge in respect of carriage, storage, disposal or handling thereof.
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch and shown on the Company’s Delivery Note from the Company’s 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.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer:
(a) gives written notice to the Company of the non-delivery within three working days of the date when the Goods would in the ordinary course of events have been received; and
(b) The Company fails to deliver on the revised delivery date
5.3 Any liability of the Company 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.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company 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 the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s 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 the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 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 the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 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 the Company 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.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, 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.
6.8 Where the Company 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 the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery as revised from time to time unless the provisions of Clause 7.2 below apply.
7.2 If the Company gives notice of changes to the price list the previous price will apply in respect of all orders placed with the Company before notice was given but the Company may in its absolute discretion decide to charge the new price for goods delivered after the price list was changed
7.3 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.
8.1 Subject to condition 8.4, payment of the price for the Goods is due in pounds sterling on the last working day of the month following the month in which the Goods are delivered or deemed to be delivered.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 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 the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract when it falls due the Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 where appropriate. In cases where the said Act is not appropriate the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the Bank of England Bank Rate, accruing on a daily basis until payment is made, whether before or after any judgment.
8.7 If payment is made by credit card the Company reserves the right to make a administrative charge equivalent to 3% of the value of the invoice (including VAT)
8.8 The Company may require the Buyer to provide payment by direct debit or standing order at any time and if the Buyer fails to do so the Company may suspend the account for such period or periods as it thinks fit or cancel the account in its absolute discretion. The Company may refuse to accept payment by standing order or direct debit at any time in its absolute discretion.
9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company 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 for which they were manufactured; 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 the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
9.3 The Company shall not be liable for a breach of any of the warranties in condition 9.2 unless:
(a) the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within seven days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.
9.4 The Company shall not be liable for a breach of any of the warranties in condition 9.2 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 the Company’s 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 the Company.
(d) The Buyer uses the Goods for a purpose for which they were not designed unless the Company has warranted that they are fit for the Buyer’s purpose in accordance with the Warranty given at Condition 9.2(c) above
9.5 Subject to condition 9.3 and condition 9.4, if any of the Goods do not conform with any of the warranties in condition 9.2 the Company 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 the Company so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goods which is defective to the Company.
9.6 If the Company complies with condition 9.5 it shall have no further liability for a breach of any of the warranties in condition 9.2 in respect of such Goods.
9.7 Any Goods replaced shall belong to the Company in accordance with the terms of Condition 6.5 above
9.8 The Company shall not be liable for and makes no representation that the quantity of Goods ordered by the Buyer is fit for the Buyer’s purpose and the Buyer shall be solely responsible for ascertaining that the quantities of the Goods ordered are suitable and fit for the Buyers’ purpose
9.9 Goods comprising or constructed partly or wholly of timber may be liable to expansion, contraction and/or splitting and the Company shall not be liable for any loss or damage arising from the same
9.10 The Company makes no guarantee or warranty as to the actual colour of Goods made of timber or that such colours shall be uniform throughout the Goods supplied or that such colour will not weather, age or change with time, whether uniformly or unevenly and the Company shall not be liable for any loss or damage arising from the same
10. LIMITATION OF LIABILITY
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (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;
(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.
10.2 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.
10.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3:
(a) the Company’s 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) the Company 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, which arise out of or in connection with the Contract.
11.1 The Company may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12. FORCE MAJEURE
The Company 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 the Company 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 120 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract provided that the Company has not already paid or contracted to pay for them and cannot obtain a refund or cancellation of the order without penalty, in which case the Buyer shall be obliged to indemnify the Company for such obligation it may have to the supplier
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 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.
13.3 Failure or delay by the Company 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.
13.4 Any waiver by the Company 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.
13.5 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.
13.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
14.1 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 fax:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) 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 the Company by the Buyer.
14.2 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; or
14.3 Communications addressed to the Company shall be marked for the attention of the Company Secretary.
Terms and conditions of Purchase – Internet distance selling
• No contract exists between you and Oakdale Fencing Ltd until Oakdale Fencing Ltd has received and accepted your order.
• An acceptance of your offer to buy the goods will be sent by e-mail shortly after your order. However we do reserve the right to terminate the contract in the event that the goods are unavailable, mis-priced or payment is not received.
• Should you wish to return goods for any reason you have the right to do so within 7 working days of receiving the goods. The full cost of the goods minus the re-stocking fee will be refunded to the original credit/debit card.The original purchace invoice/receipt must be presented at the time of return. The re-stocking charges are:- 15% of items returned to our yard and 30% of items collected by our transport plus the delivery cost. We are unable to accept cement based products back into stock. Returns are subject to the goods being checked by a Oakdale member of staff to varify that they are in a acceptable condition to be placed back into stock.
• Should you wish to exercise your right of cancellation you must give written notice to Oakdale Fencing Ltd. Notification by phone will only be accepted if preceding full written confirmation of cancellation via post or e-mail to the addresses shown in your confirmatory e-mail. Cancellations must to be recieved 24 hours prior to the expected delivery date.
• In the case of any suspected defect or damage, please contact us as soon as possible and in all cases before returning goods.
• In the case of returning goods for refund you will be responsible for returning the goods to Oakdale Fencing Ltd, at your own cost. We expect you to take the necessary precautions to prevent any damage in transit. We can collect by prior arangement, (collection fee payable).If we are notified that you believe the returned goods to be damaged or faulty, upon receiving the goods Oakdale Fencing Ltd will inspect the faults or damage with view to a full refund and reasonable postage/delivery reimbursement where applicable.
• The goods must be returned to the address of the supplying branch this can be found on the delivery note.
• With larger items it may be possible for Oakdale Fencing Ltd to collect the goods from you with appropriate arrangements.
• Illustrations of products are representations and do not form part of the contract of purchase.
• Oakdale Fencing Ltd do not accept liability for goods being undelivered due to poor accessibility or the buyer being unprepared for delivery of the goods.
• Please remember that wood is a natural product and is susceptible to movement and weathering as it seasons. It is not uncommon for splits to occur as the wood dries out. This is not a fault in the product but a part of using natural products.