Definitions and Interpretation
In these terms and conditions the following expressions will have the following meanings unless inconsistent with the context:
“Client” the purchaser of the Pinelodge who is named in the Quotation “Company” Pinelog Limited (registered as a limited company in England, number 2587185) of Riverside Business Park, Bakewell, Derbyshire, DE45 1GS “Completion” the completion of the Works “Conditions” these terms and conditions “Contract Sum” the total sum specified in the Quotation as being payable by the Client to the Company “Contract” the contract between the Client and the Company, formed in accordance with Condition 2 “Delivery” delivery of the Materials, Works or the Pinelodge to the Site by the Company or collection of the Materials, Works or the Pinelodge by the Client from the Company’s Premises “Delivery Date” the date for delivery of the Pinelodge and the start of the Works which is specified in the Contract “Materials” all goods and materials required for the Company to provide the Works and manufacture the Pinelodge “Pinelodge” a timber lodge manufactured by the Company to the design and specification set out in the Contract “Quotation” DEFINITIONS AND INTERPRETATION “Site” the site specified in the Contract “Works” the works set out within the Contract
- Subject to any variation under Condition 2.6 the Contract will be upon these Conditions to the exclusion of all other terms and conditions and all previous oral or written representations, including any terms or conditions which the Client purports to apply under any order, specification, delivery note, or similar document, whether or not such document is referred to in this Contract.
- The Contract shall comprise:
- the Company’s official order acknowledgement (which shall set out any special terms and conditions agreed between the parties);
- the Quotation; and
- the Conditions.
- In the event of any conflict between these documents they shall take precedence in the order in which they are listed.
- Acceptance of a Quotation by the Client shall not constitute a Contract unless subsequently confirmed by the Company by official order acknowledgment.
- Where in order to meet the Client’s timescale the Company must commence manufacture of the Pinelodge before the Company issues an official order acknowledgement, the Contract shall be deemed to be formed at the point at which the Company first incurs expenditure, the terms of such Contract being as set out in Conditions 2.1, 2.2.2 and 2.2.3.
- Save as set out in the Contract, these Conditions (including any special terms and conditions agreed between the parties) may only be varied or amended in writing and when signed by a director or associate director of the Company.
- The Quotation and the Contract Sum may be revised by the Company both before and after issue of the written order acknowledgement if suitable Site conditions and amenities are not made available by the Client to the Company such that the Company was unable to have made a reasonable estimate of the cost and time needed to complete the Works in the Contract Sum.
- The Client warrants that any information given directly or indirectly by it to the Company concerning Site conditions (including but without limitation information relating to the area on which the Works are to be carried out) is accurate and that the Client has disclosed to the Company all such conditions which may affect the Works.
- The Client acknowledges that the Company shall rely on all such information in Conditions 3.1 and 3.2 both in estimating the Works and in carrying them out and the Client acknowledges that the Company shall, (subject to Condition 10.1), not be liable for any delay, defects in or failure of or damage to the Works or any part thereof as a consequence of any inaccuracy or omission in such information, but where any inadequacy or omission is apparent to the Company, the Company may advise the Client accordingly.
- Unless stated to the contrary in the Contract, the Contract Sum does not make any allowance for (and if required the Client must therefore in addition pay the Company’s charges for):
- professional, district surveyor, local authority or building regulation fees;
- delays or additional work arising as a consequence of district surveyor, local authority or building regulation requirements;
- for loss of time and expenditure incurred through the Site not being ready or unsuitable for delivery of the Pinelodge or commencement of the Works on the agreed date or any delays due to circumstances beyond the Company’s control; and
- 1.4.4.preparation of the foundations and base for the Works.
- Payment of the Contract Sum and any additional sums due pursuant to these Conditions shall be made in stage payments as set out in the Contract.
- Until an agreed stage payment which has become due is paid the Company shall be entitled to refuse to commence, or may suspend, the Works.
- The Contract Sum and any additional sums due are exclusive of VAT, which if applicable shall be charged and paid in addition at the applicable rate. The Client acknowledges that the Company has a duty to assess the Works with respect to the rating of the work as standard or zero for the purpose of Value Added Tax.
- Time for payment of any sums due under the Contract shall be of the essence.
- No payment shall be deemed to have been received until the Company has received cleared funds.
- All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
- The Client 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 Client has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Client. No retention shall be allowed unless specifically set out in the Contract.
- If the Client fails to pay the Company any sum due pursuant to the Contract, the Client 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 base lending rate from time to time of HSBC Bank Plc accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
- The Materials, Works and Pinelodge are at the risk of the Client from Delivery.
- Ownership of the Materials, Works and Pinelodge shall not pass to the Client until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
- the Materials, Works and Pinelodge; and
- all other sums which are or which become due to the Company from the Client on any account.
- Until ownership of the Materials, Works and Pinelodge has passed to the Client, the Client shall:
- hold the Materials, Works and Pinelodge on a fiduciary basis as the Company’s bailee;
- store the Materials, Works and Pinelodge (at no cost to the Company) in such a way that they remain readily identifiable as the Company’s property;
- not destroy, deface or obscure any identifying mark or packaging on or relating to the Materials, Works and Pinelodge;
- refrain from annexing the Materials Works and Pinelodge to the Site without the Company’s permission; and
- maintain the Materials, Works and Pinelodge 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 Client shall produce the policy of insurance to the Company.
- The Client may, subject to receiving the Company’s written consent, resell the Materials, Works and Pinelodge before ownership has passed to it provided that any sale shall be effected in the ordinary course of the Client’s business at full market value.
- The Client’s right to possession of the Materials, Pinelodge and Works will terminate immediately if any of the circumstances set out in Condition 11.1 occur before payment by the Client of the Contract Sum in full.
- The Company shall be entitled to recover payment for the Materials, Works and Pinelodge notwithstanding that ownership of any of the Materials Works and Pinelodge has not passed from the Company.
- The Client grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Materials, Works and Pinelodge are or may be stored in order to inspect them, or, where the Client’s right to possession has terminated, to recover them.
- Where the Company is unable to determine whether any Materials, Works and Pinelodges are the Materials, Works and Pinelodges in respect of which the Client’s right to possession has terminated, the Client shall be deemed to have sold all Materials, Works and Pinelodges of the kind sold by the Company to the Client in the order in which they were invoiced to the Client.
- On termination of the Contract, howsoever caused, the Company’s (but not the Client’s) rights contained in this Condition 5 shall remain in effect.
Specification and Design
- The Company shall provide the Pinelodge and Works in accordance with the specification comprised in the Quotation.
- Subject to Condition 10.1, the Company’s liability for the design of the Pinelodge and Works is limited to that design to which the Quotation refers and is further limited to that of a competent professional exercising reasonable skill and care.
- The Client may request alterations to the design of the Pinelodge and/or Works but the Company shall not be obliged to comply with any such request.
- Should the Company agree to comply with a request made pursuant to Condition 6.3, the Company may increase the Contract Sum to take account of such alterations.
- It is the Client’s responsibility to satisfy itself that the Materials, Works and Pinelodge are suitable for the chosen siting location.
- Unless other arrangements are expressly agreed in writing, all descriptions and particulars in the Company’s literature and other documents issued by the Company are as accurate as possible, but are only given for general information purposes and do not form part of the Contract.
- The Company undertakes to use all reasonable endeavours to commence the Works on the Delivery Date. However, subject to Condition 10.1 the Company shall not be liable for a failure to commence the Works on the Delivery Date.
- The Pinelodge and Works, or any part thereof, shall be taken over by the Client on Completion.
- When the Company believes it has completed the Works or any part thereof it shall notify the Client that Completion has occurred. Completion of the Works or any part thereof shall be deemed to have taken place on that date.
- Should the Client be unable to accept delivery of Pinelodge on or after the Delivery Date then it will be stored by the Company with a storage charge becoming due and this sum will be levied by the Company to the Client.
- If the Company is or shall be delayed or disrupted in the execution of the Works (other than a breach of this Contract by the Company) then the Company shall have such additional time as it considers reasonably necessary in order to complete its obligations and in any such event the Company shall be entitled upon the Company’s written request to reimbursement for its additional costs (on the basis of its current day rates) resulting from such delay or disruption.
- The parties acknowledge that it may be necessary for the Company to vary the Quotation and the Contract Sum during the course of the Works if the Company becomes aware of factors not reasonably apparent when the Company issued the Quotation. Where the Company varies the Quotation and the Contract Sum pursuant to this Condition 7.6, if the Client refuses consent to such variation or refuses to pay the Company any additional consideration due pursuant to the varied Contract Sum, the Company shall, (subject to Condition 10.1) not be liable for any related failure to perform its obligations under the Contract.
Facilities and Attendance
- Building Regulations approval, planning permission and any licences, easements or approvals necessary to the progress of the Company’s work are the responsibility of the Client unless the Quotation provides that the Company is responsible for such matters. The Client warrants and represents that it will comply with every applicable statute, Order in Council, Regulation, ByeLaw or any other lawful requirement of HM Government or of local Government or any other lawful authority, relevant to the carrying out of the Works, including but not limited to full compliance with all relevant obligations under the Construction (Design & Management) Regulations 2007.
- The Client shall ensure that the Company has, at no cost to the Company full and free access on to the Site and adequate clearance around the Company’s working operations.
- With the exception of white goods and fixtures and fittings not manufactured by the Company, Pinelodges are fully guaranteed for a period of 12 months from the date of Completion, against defects in workmanship or materials. Pinelodges’ structural timber framework, external envelope and verandah carry a further nine year guarantee against failure as a result of workmanship or materials. Pinelodges’ sealed glazing units carry a further four year warranty against failure as a result of workmanship or materials. White goods and fixtures and fittings not manufactured by the Company but provided within Pinelodges will be covered by the individual manufacturer’s warranties. If the Client claims against this warranty, the Company shall as soon as reasonably practicable (and subject to Conditions 9.2 to 9.3) repair or otherwise remedy the defect in respect of which the Client has claimed.
- The warranties contained in Condition 9.1 shall not apply (and, subject to Condition 10.1, the Company shall have no liability) where and to the extent that:
- maintenance has not been carried out by a competent person strictly in accordance with the Company’s maintenance programme as notified to the Client in writing from time to time;
- the Pinelodge is located on a location or foundation type not expressly approved in writing by the Company prior to commencement of the Works;
- the Pinelodge has been subject to abnormal usage;
- the Pinelodge or any part thereof has been improperly altered in any way whatsoever, or has been subject to misuse or inappropriate repair; or
- the Pinelodge or any part thereof has been improperly installed or connected (save where arising through the Company’s negligent action or inaction).
- The Client must notify the Company of any defect or suspected defect within 28 days of the defect coming to the knowledge of the Client.
- In order to determine the validity of a claim made by the Client pursuant to this Condition 9, the Company’s technical staff shall visit and inspect the defect or suspected defect within a reasonable period following notification pursuant to Condition 9.3. The Client shall permit any reasonable access required by the Company and shall cooperate with the Company and provide such assistance as the Company reasonably requires.
Limitations of Liability
- The Company does not exclude its liability (if any) to the Client:
- for breach of the Company’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;
- for personal injury or death resulting from the Company’s negligence;
- under section 2(3) Consumer Protection Act 1987; or
- for fraud.
- Except as provided in Condition 9 and 10.1, the Company will be under no liability to the Client whatsoever (including without limitation in negligence) for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profit, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with the Works or any Materials comprised in the Works.
- Except as set out in Condition 9 and 10.1, the Company hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Client.
- Except as provided in Condition 9 and 10.1, the Company shall not be in breach of this Contract, nor liable for any consequential loss and failure or delay in performance of the Pinelodge and Works arising from a Client’s refusal to increase the Contract Sum in the case where any necessary alternations are required to the design and specification of the Pinelodge beyond which the Quotation refers to after the Contract has become binding in accordance with Condition 2.
- Save as set out Condition 10.1, the Company’s maximum aggregate liability (including without limitation in negligence) shall be limited to the Contract Sum.
- The Client acknowledges that the above provisions of this Condition 10 are reasonable and reflected in the Contract Sum which would be higher without those provisions, and the Client will accept such risk and/or insure accordingly.
- The Company does not exclude its liability (if any) to the Client:
- Either party may terminate this Contract with immediate effect if the other party (the “defaulting party”):
- 1.1.1.is in material breach of its obligations and fails to remedy such material breach within 21 days of a notice being served upon the defaulting party specifying the breach and requiring its remedy;
- 1.1.2.being an individual has entered into any composition or arrangement with his creditors, has a petition presented by him or by any other person for his bankruptcy, has a bankruptcy order made against him, has applied to court for an interim order under Section 253 Insolvency Act 1986, has submitted a proposal for a voluntary arrangement to a nominee under Section 256A Insolvency Act 1986, has an interim receiver of his property appointed under section 286 of the Insolvency Act 1986, is unable to pay his debts within the meaning of section 267 and 268 Insolvency Act 1986, has a receiver or manager appointed over any of his assets, has a receiver appointed under the Mental Health Act 1983 or dies;
- 1.1.3.being a company, summons a meeting of its creditors, makes a proposal for or becomes subject to any voluntary arrangement, is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, has a receiver, manager or administrative receiver appointed over any of its assets, undertaking or income, has passed a resolution for or is subject to a petition presented to any court for, its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), has a provisional liquidator appointed, has a proposal made for a scheme of arrangement under section 425 Companies Act 1985, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator given by an person or is the subject of a notice to strike off the register at Companies House.
- If the Contract is terminated by the Company pursuant to Condition 11.1:
- 1.2.1.the Company shall be entitled at any time to terminate or suspend all or any part of the outstanding Works or any of its other obligations under the Contract and/or to rescind the Contract;
- 1.2.2.the Company may in full or in part satisfaction of any claims under this Contract remove, sell, or otherwise dispose of the Pinelodge without liability for any loss or damage thereby suffered by the Client or any third party; and
- 1.2.3.the Company may invoice the Client and the Client shall pay any costs incurred by the Company in performing its obligations under this Contract.
- Either party may terminate this Contract with immediate effect if the other party (the “defaulting party”):
- This Contract shall be governed by English law, and any dispute is subject to the non-exclusive jurisdiction of the English courts.
- Copyright in any plans, drawings, estimates or other design work contained in the Quotation or Contract remains at all times the property of the Company.
- The parties to this Contract do not intend that any of its terms will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person not a party to it.
- This Contract embodies the entire understanding of the Company and the Client and there are no other arrangements between them relating to the subject matter of this Contract intended to form part of this Contract and no amendment or modification of this Contract will be valid or binding on any party unless the same is made in writing and refers expressly to this Contract and is signed by the parties concerned or their duly authorised representatives.
- The Client shall not assign any of its rights or obligations under this Contract without the Company’s express written consent.
- Any failure by the Company at any time or for any period to enforce any one or more of the terms or conditions of this Contract and any grant by the Company of time or other indulgence to the Client shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Contract.
- If the Works or any part of the Works or any performance or part performance of the Company’s obligations under this Contract is prevented, hindered or delayed by reason of an act of God, war, terrorism, government regulation, industrial dispute, civil or environmental disaster, inclement weather (including floods) riot or commotion or any other cause beyond the Company’s control, the Company will be deemed not to be in breach of the Contract nor otherwise liable to the Client in any manner whatsoever, and the Company may give notice in writing to the Client cancelling the Company’s outstanding obligations to execute the Works.