1.1. In these Terms:
“Client” means the person named in the Estimate for whom the Company has agreed to provide the Goods or Services in accordance with these Terms;
“Company” means Coyle Timber Ltd Limited;
“Contract” means the contract for the provision of the Goods or Services;
“Estimate” means the estimate to which these Terms are appended;
“Goods” means the goods to be provided by the Company to the Client and referred to in the Estimate; and
“Services” means the service to be provided by the Company for the Client and referred to in the Estimate.
1.2. The following Terms shall govern and be incorporated in the Contract made between the Company and the Client. No variations to these Terms shall be binding unless agreed in writing between the authorised representatives of the Client and the Company.
2.1. The Company’s employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by the Company in writing. In entering into the Contract, the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.2. Any advice or recommendation given by the Company or its employees or agents to the Client or its employees or agents as to the storage, application or use of the Goods or in relation to the Services, which is not confirmed in writing by the Company, is followed or acted upon entirely at the Client’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.3. Any typographical, clerical or other error or omission in the Estimate, sales literature, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3. ORDERS AND SPECIFICATIONS
3.1. No order submitted by the Client shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company’s authorised representative.
3.2. The Client shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Client and for giving the Company any necessary information within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3. If the Goods are to be manufactured or any process is to be applied to the Goods in accordance with a specification submitted by the Client, or if the Services are to be provided by the Company in accordance with a specification submitted by the Client, the Client shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Client’s specification.
3.4. The Company reserves the right to make any changes in the specification of the Goods or to the Services in order to conform with any applicable safety or other statutory requirements which do not materially affect their quality or performance.
4. CLIENT’S CANCELLATION
4.1 No order which has been accepted by the Company may be cancelled by the Client except with the agreement in writing of the Company and on terms that the Client shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
5. PROPERTY AND CONFIDENTIALITY
5.1. All copyright, trademark and other intellectual property rights in any and all material developed or prepared by the Company, its employees, agents and sub-contractors in relation to the Goods and Services (the “Project Material(s)”) and any enhancement of or modification to the Project Material(s) are the exclusive property of the Company.
5.2. Subject as set out below, each of the Company and the Client shall at all times during the term of the Contract and after its termination:
5.2.1. use their reasonable endeavours to keep confidential all confidential information of the other party (including, for the avoidance of doubt, any Project Material) (“Confidential Information”) and accordingly not to disclose any Confidential Information to any other person, save in connection with the performance of the Contract; and
5.2.2. not use any Confidential Information for any purpose other than in connection with the performance of the Contract.
5.3. The restrictions set out in clause 5.2 shall not apply to the extent that any Confidential Information is:
5.3.1. trivial or obvious;
5.3.2. in the public domain other than as a result of a breach of this clause; or
5.3.3. required to be disclosed by law.
5.4. Upon request by the Company and in any event on the termination of the Contract, the Client shall, at the Client’s expense, promptly deliver to the Company, all Confidential Information, in whatever form that is in the Client’s custody, control or possession.
6. CLIENT’S OBLIGATIONS
6.1. The Client shall provide the Company with such information as the Company may reasonably require concerning the Client’s operations and which may be reasonably necessary for the Company to undertake the Services or provide the Goods. The Client is responsible for ensuring that such information is accurate and complete.
6.2. The Client shall provide free of charge such assistance and facilities as the Company may reasonably require for the proper performance of the Services and the provision of the Goods.
7. CLIENT’S INDEMNITY
7.1. The Client shall indemnify the Company and keep the Company fully and effectually indemnified on demand against any loss of or damage to any property or injury to or death of any person caused by the negligent act or omission or wilful misconduct of the Client, its employees, agents or sub-contractors.
8.1. The Client shall not (whether directly or indirectly or whether on its own account or for the account of any other person), at any time during the period from the commencement of, to the first anniversary of the date of termination of this Contract for any reason and in any manner whatsoever employ or engage or endeavour to employ or engage any director, employee, agent or sub-contractor of the Company involved in any way in the provision of the Services.
9.1. The price of the Goods or the fees for the Services (the “Fees”) shall (subject to the Company’s right of variation set out below) be the Company’s Fees as set out in the Estimate or, where no Fee has been estimated (or an estimated Fee is no longer valid), the Fee listed in the Company’s published Fee list current at the date of the order.
9.2. The Company reserves the right, by giving notice to the Client at any time before delivery, to increase the Fees to reflect: any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or transport or other cost of manufacture), any change in dates for supply of or quantities or specifications for the Goods or Services which is requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give the Company adequate information or instructions.
9.3. If the Company gives notice to the Client of any increase in the Fees pursuant to the above clause then the Client will be entitled within five days of receiving the Company’s advice of such an increase to cancel by means of a registered letter that part of the order for Goods or the Services to which the increase would be applicable.
9.4. Save where otherwise specified in the Estimate, all prices given by the Company shall include:
9.4.1 transport, packaging and insurance costs in relation to the Goods; and
9.4.2 all travelling and subsistence expenses incurred in the performance of the Services.
9.5. The Fees are exclusive of any applicable value added tax, which the Client shall be additionally liable to pay to the Company.
10. TERMS OF PAYMENT
10.1. The Company shall be entitled to invoice the Client for the Fees on or at any time after the date of the Company’s acceptance of the order.
10.2. Save where otherwise specified in the Estimate, the Client shall pay the Fees within 30 days of the date of the Company’s invoice at the address of the Company, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Client. The time of payment of Fees shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
10.3. In the event that the Client, in breach of any of the provisions hereof, sells the Goods to any third party or commences any manufacturing or other process with the Goods payment for the Goods shall be due immediately notwithstanding any previous agreement to the contrary.
10.4. If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
10.4.1. cancel the contract or suspend any further performance of the Services or any further deliveries of the Goods until all outstanding invoice amounts including interest accrued thereon have been settled;
10.4.2. appropriate any payment made by the Client to such of the Goods or Services (or goods or services supplied under any other contract between the Client and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Client);
10.4.3. require in respect of all future supplies payment in cash or such guarantees as the Company may require prior to performance of the Services or supply of the Goods; and
10.4.4. charge the Client interest (both before and after any judgement) on the amount unpaid, at the rate of 4 per cent per annum above the HSBC Bank Plc base rate from time to time or 8 per cent per annum (whichever shall be the greater), until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
10.5. When payment is made through a bank the date on which the Company’s account is credited by the bank will be regarded as the date of payment. When payment is made by cheque the date on which the cheque is cleared by the Company’s bank will be regarded as the date of payment.
10.6. All costs incurred by the Company (including legal costs incurred prior to the issue of any proceedings or in presenting a petition for winding up) of and incidental to the collection of all sums due or unpaid shall be borne by the Client.
12. RISK IN RELATION TO THE GOODS
12.1. Risk of damage to or loss of the Goods shall pass to the Client:
12.1.1. in the case of Goods to be collected from the Company’s premises, at the time when the Company notifies the buyer that the Goods are available for collection; or
12.1.2. in any other case at the time of delivery or, if the Client fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
16. COMPANY’S LIABILITY
16.1. Except in respect of fraud or death or personal injury caused by the Company’s negligence:
16.1.1. the Company shall not be liable pursuant to the Contract for any loss of profits or goodwill or for any type of indirect, special or consequential loss (including loss or damage suffered as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the loss being incurred;
16.1.2. the maximum liability of the Company pursuant to the Contract for any damage to the Client’s property resulting from the Company’s negligence shall not exceed £[ ]; and
16.1.3. the entire liability of the Company for any other loss or damage suffered by the Client under or in connection with the Contract shall not exceed an amount equal to:
220.127.116.11 in respect of the supply of Goods, the aggregate price for the Goods; and
18.104.22.168 in respect of the supply of Services, the Fees paid by the Client in respect of Services provided by the Company to the Client during the previous 12 months.
17. DURATION AND TERMINATION IN RESPECT OF THE SERVICES
17.1. This agreement may be terminated:
17.1.1. forthwith by the Company if the Client fails to make payment on the due date therefore;
17.1.2. forthwith by either party if the other commits any material breach of any term of this agreement (other than one falling within 17.1.1 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within 14 days of a written request to remedy the same.
17.2. Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
17.3. Within 14 days of the termination of this agreement (howsoever and by whomsoever occasioned) the Client shall at the Company’s sole option either return all copies of the Project Materials in its possession or control or shall destroy all copies of the Project Materials in its possession or control and a duly authorised officer of the Client shall certify in writing to the Company that the Client has complied with its obligation as aforesaid.
11. DELIVERY OF GOODS AND SUPPLY OF SERVICES
11.1. Any dates quoted for delivery or collection of the Goods or supply of the Services are approximate only and the Company shall not be liable for any delay howsoever caused. Time for delivery or collection shall not be of the essence unless previously agreed by the Company in writing, and any delay shall not entitle the Client to cancel the order. The Goods may be delivered and the Services may be supplied by the Company in advance of the quoted delivery date upon giving reasonable notice to the Client.
11.2. Where delivery of the Goods is to be made by the Company in bulk, the Company reserves the right to deliver up to 10 per cent more or 10 per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
11.3. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Terms or any claim by the Client in respect of any one or more instalments shall not entitle the Client to treat the Contract as a whole as repudiated. If the failure to deliver is for any reason other than any cause beyond the Company’s reasonable control or the fault of the Client and the Company is accordingly liable to the Client, the Company’s liability shall be limited to the excess (if any) of the cost to the Client (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.
11.4. If the Client fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Client’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
11.4.1. store the Goods until actual delivery and charge the Client for the reasonable costs (including insurance) of storage; or
11.4.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Client for the excess over the price under the Contract or charge the Client for any shortfall below the price under the Contract.
13. RESERVATION OF TITLE IN THE GOODS
13.1. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Client until the Company has received in cash or cleared funds payment in full:
13.1.1. of the price of the Goods; and
13.1.2. for all other goods agreed to be sold by the Company to the Client for which payment is then due or owing.
13.2. Until such time as the property in the Goods passes to the Client, the Client shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Client and third parties and properly stored, protected and insured and identified as the Company’s property. Until that time the Client shall be entitled to resell as principal but not as agent of the Company or use the Goods in the ordinary course of its business. The Client shall account to the Company for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Client and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
13.3. In the event of the Client reselling the Goods as referred to above any benefit of any claim against the sub-buyer or sub-buyers is hereby assigned to the Company by the Client.
13.4. Until such time as the property in the Goods passes to the Client, the Company shall be entitled at any time to require the Client to deliver up the Goods to the Company and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where the Goods are stored and repossess the Goods.
13.5. The Client shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Client does so all money owing by the Client to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
14.1. Subject to the following provisions, the Company warrants to the Client:
14.1.1. that the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1970, will correspond with their specification and will comply with all statutory requirements and regulations relating to the Sale of Goods; and
14.1.2. that the Services will be provided using reasonable skill and care and will comply with all statutory requirements and regulations.
14.2. The Company shall be under no liability:
14.2.1. in respect of any defect in the Goods or Services arising from any drawing, design or specification supplied by the Client;
14.2.2. in respect of any loss, cost or expense arising from the negligence of the Client or the Client’s employees or agents or sub-contractors or any failure to follow the Company’s instructions (whether oral or in writing); or
14.2.3. in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s written approval; or
14.2.4. if the total Fees have has not been paid by the due date for payment; or
14.2.5. in respect of any parts, materials or equipment not manufactured by the Company, in respect of which the Client shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
14.3. Subject as expressly provided in these Terms, and except where the Goods or Services are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, terms or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.4. Where the Goods or Services are sold to a person dealing under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Client are not affected by these Terms.
15.1. Any claim by the Client shall be notified to the Company within 2 months of the date of the event giving rise to the claim and, where the claim is based on any defect in the quality or condition of the Goods or their failure to correspond with specification, shall (whether or not delivery is refused by the Client) be notified to the Company within 2 months of the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time not exceeding 2 months after discovery of the defect or failure. If delivery is not refused, and the Client does not notify the Company accordingly, the Client shall not be entitled to reject the Goods, the Company shall have no liability for such defect or failure, and the Client shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. In no event shall the Client be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for him to reject them.
15.2. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Terms, the Company shall be entitled to make good the defect or replace the Goods (or the part in question) free of charge, in which case the Company shall have no further liability to the Client.
15.3. Where any valid claim in respect of any of the Services is notified to the Company in accordance with these Terms, the Company shall be entitled to make good the failure (free of charge), in which case the Company shall have no further liability to the Client.
18. FORCE MAJEURE
18.1. The Company shall not be liable to the Client or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods or Services, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control;
18.1.1. act of God, explosion, flood, tempest, fire or accident;
18.1.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
18.1.3. acts, restrictions, regulations, bye-laws, prohibition or measures of any kind on the part of any governmental, parliamentary or local authority.
19. INSOLVENCY OF CLIENT
19.1. This clause applies if:
19.1.1. the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstructions); or
19.1.2. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or
19.1.3. the Client ceases, or threatens to cease, to carry on business; or
19.1.4. the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.
19.2. If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Client, and if the Services have been performed or the Goods have been delivered but not paid for the Fees shall become immediately due and payable forthwith notwithstanding any previous agreement or arrangement to the contrary and in the event that the price of the Goods shall not be paid forthwith the Company shall be entitled to enter upon any premises of the buyer or any third party where the Goods are stored and repossess the Goods.
20.1. Any notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
20.2. No waiver by the Company of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provisions.
20.3. If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected thereby.
20.4. The Company shall be permitted to assign its rights and obligations under the Contract to any associated company of it or to sub-contract any of its obligations. Subject as otherwise provided, neither party shall be permitted without the prior written consent of the other to assign or otherwise transfer any of its rights and obligations under the Contract whether in whole or part.
20.5. This Contract and the documents referred to in it contain the whole agreement between the parties relating to the matters contemplated by this Contract and supersede all previous agreements between the parties relating to it.
20.6. Each of the parties acknowledges that in agreeing to enter into this Contract it has not relied on any representation, warranty, collateral contract or other assurance (except those set out in this Contract and the documents referred to in it made by or on behalf of any other party before the signature of this Contract. Each of the parties waives all rights and remedies which, but for this sub clause, might otherwise be available to him in respect of any such representation, warranty, collateral contract or other assurance, provided that nothing in this sub clause shall limit or exclude any liability for fraud.
20.7. These conditions shall not confer any benefit or right of action on any third party and the provisions of the Contracts (Rights of Third Parties) Act 1999 and any subsequent supplementary or modifying legislation are hereby excluded to the fullest extent possible by law.
20.8. This Contract shall be governed by the laws of England and Wales and any dispute arising shall be determined by the Courts within that jurisdiction.