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WOODFIELDS BIOMASS TERMS AND CONDITIONS
Purchase of equipment
Thank you for enquiry regarding the purchase of ORC's. We have set out in this letter the terms and conditions upon which we will agree to supply the biomass boilers to you. Please read this letter carefully and, if you understand and agree to these terms and conditions, please sign one copy of this letter and return it to us. We would draw your attention to clause 2 below, which sets out when a legally-binding contract comes into force between us.
1.1In these Conditions, the following definitions apply:
Conditions: the terms and conditions set out in this letter as amended from time to time in accordance with clause 11.6.
Contract: the contract between us and you for the sale and purchase of the Goods in
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order.
Order: your order for the Goods, as set out
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by us.
Warranty Period: [10 months] from the date of delivery for all electronic components within the Goods, and  months from the date of delivery for all non-electronic components within the Goods.
1.2In these Conditions, the following rules apply:
(a)Any reference to “us” or “our” shall be a reference to the supplier of the Goods, namely [A E Woodfield] of WOODFIELDS BIOMASS LTD)
]. Any reference to “you” or “your” shall be a reference to the buyer of the Goods, namely the party to whom this letter is addressed above.
(b)A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(c)A reference to a party includes its personal representatives, successors or permitted assigns.
(d)A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(e)Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(f)A reference to writing or written includes faxes and emails.
2.Basis of contract
2.1These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2The Order constitutes an offer by you to purchase the Goods in accordance with these Conditions. You are responsible for ensuring that the terms of the Order and any applicable Specification submitted by you are complete and accurate.
2.3The Order shall only be deemed to be accepted when:
(a)we issue a written acceptance of the Order; and
(b)the conditions set out in clause 2.4 is satisfied;
at which point a legally-binding Contract shall come into existence between you and us.
2.4The conditions referred to in clause 2.3(b) are:
(a)that you comply with your obligation in clause 7.9;
(b)that we are able to purchase the Goods from our supplier; and
(c)we are able to obtain possession of the Goods from our supply after having purchased them.
2.5The Contract constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by us or on our behalf which is not set out in the Contract.
2.6Any samples, drawings, descriptive matter, or advertising produced by us and any descriptions or illustrations contained in our or our supplier’s promotional material catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.7A quotation for the Goods given by us shall not constitute an offer. A quotation shall only be valid for a period of fourteen days from its date of issue.
3.1The Goods are described in the Specification.
3.2To the extent that the Goods are to be manufactured in accordance with a Specification supplied by you, you shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by us in connection with any claim made against us for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with our use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3We reserve the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.4The following components will be excluded from the supply of the Goods and do not form part of the Contract:
(a)connection of the Goods to your power supply;
(b)earth mass system;
(c)foundations and necessary building works for installation of the Goods;
(d)hydraulic works and relative necessary accessories for the formation of hydraulic plan related to the ISPELS norms and relative insulations;
(e)any transport or lifting apparatus required for unloading or installing the Goods; and
(f)construction in bricks inside the Goods.
4.1We shall ensure that:
(a)each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b)if we require you to return any packaging materials to us, that fact is clearly stated on the delivery note. You shall make any such packaging materials available for collection at such times as we shall reasonably request. Returns of packaging materials shall be at our expense.
4.2We shall deliver the Goods DDP to the premises set out in the Order or such other location as you and we may agree (Delivery Location) at any time after we notify you that the Goods are ready.
4.3Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location. You shall be responsible for unloading the means of transport upon arrival.
4.4Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
4.5If we fail to deliver the Goods, our liability shall be limited to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.6We shall not be liable for any delay in delivery of the Good, nor for any failure to deliver the Goods, to the extent that such delay or failure is caused by a Force Majeure Event or your failure to provide us with adequate instructions that are relevant to the supply of the Goods.
4.7If you fail to accept delivery of the Goods when we deliver them to the Delivery Location then, except where such failure or delay is caused by a Force Majeure Event or our failure to comply with our obligations under the Contract:
(a)delivery of the Goods shall be deemed to have been completed at the time we first attempt to deliver them to the Delivery Location; and
(b)we shall store the Goods until delivery takes place, and charge you for all related costs and expenses (including insurance).
4.8If  days after the day on which we first attempted to deliver the Goods you have not accepted delivery of them, we may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Goods or charge you for any shortfall below the price of the Goods.
4.9We may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.
5.1Where we provide you with a separate manufacturer’s guarantee in relation to any component(s) of the Goods (Manufacturer Warranted Components), and that guarantee is enforceable by you directly against the manufacturer, then such guarantee will be your sole right and remedy in respect of any defect in the those Manufacturer Warranted Components, and the warranty set out in clause 5.2 shall not apply to those Manufacturer Warranted Components.
5.2Subject to clause 5.1, we warrant that on delivery, and for the Warranty Period, the Goods shall:
(a)be free from material defects in design, material and workmanship; and
(b)be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.3Subject to clause 5.4, if:
(a)you give us notice in writing during the Warranty Period and within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.2;
(b)we are given a reasonable opportunity of examining such Goods; and
(c)you (if asked to do so by us) return such Goods to our place of business at the your cost,
we shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.4We shall not be liable for Goods' failure to comply with the warranty set out in clause 5.2 in any of the following events:
(a)you make any further use of such Goods after giving notice in accordance with clause 5.3;
(b)the defect arises as a result of:
(i)your failure to follow the our oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(ii)us following any drawing, design or Specification supplied by you;
(iii)the power, fuel or water supply used by you in the operation of the Goods;
(iv)your failure to ensure sufficient levels of water are maintained within the Goods and any system to which the Goods are connected;
(v)corrosion or deformation of the Goods caused by operating the Goods at excessive temperatures, or any smoke damage arising as a result;
(vi)corrosion of the Goods caused by oxygen or carbonic anhydride;
(vii)your use of the Goods for purposes other than those for which such Goods are ordinarily used;
(c)you alter or repair such Goods without our written consent;
(d)the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e)the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.2.
5.6The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.Title and risk
6.1The risk in the Goods shall pass to you on completion of delivery or, if you do not accept the Goods when we first attempt to deliver them to the Delivery Location, the risk shall pass at the time of that unsuccessful attempt at delivery.
6.2Title to the Goods shall not pass to you until the latter of:
(a)the date we receive payment in full (in cash or cleared funds) for the Goods; and
(b)the date on which risk passes to you in accordance with clause 6.1.
6.3Until title to the Goods has passed to you, you shall:
(a)store the Goods separately from all other goods held by you so that they remain readily identifiable as our property;
(b)not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c)maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d)notify us immediately if you become subject to any of the events listed in clause 8.2; and
(e)give us such information relating to the Goods as we may require from time to time.
6.4If you become subject to any of the events listed in clause 8.2 before title to the Goods passes to you then, without limiting any other right or remedy we may have, we may at any time:
(a)require you to deliver up all Goods in your possession; and
(b)if you fail to do so promptly, enter your premises or the premises of any third party where the Goods are stored in order to recover them.
7.Price and payment
7.1The price of the Goods shall be the price set out in the Order.
7.2We may, by giving notice to you at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a)any factor beyond our control (including foreign exchange fluctuations, increases in supplier prices, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b)any request by you to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c)any delay caused by your instructions or your failure to give us adequate or accurate information or instructions.
7.3Some Goods are purchased by us in foreign currencies. Due to fluctuations in exchange rates the price of the Goods may have increased, or decreased form the price outlined in the Order. To this end, and in addition to our rights outlined in clause 7.2 above, in the event that the currency in which we buy the Goods has altered by more than [5%] in either direction, as from the date you placed your Order, we reserve the right at any time prior to delivery to:
(a)Increase the price of the Goods by the amount the currency has increased; or
(b)Decrease the price of the Goods by the amount the currency has decreased.
7.4Where, in accordance with clause 7.3(a) above, the price of the Goods has increased we shall submit a further invoice to you in the amount of the difference between the price quoted in the Order and the price we actually pay for the Goods.
7.5Where, in accordance with clause 7.3(b) above, the price of the Goods has decreased we shall either:
(a)Refund to you any difference between the price quoted in the Order and the price we actually pay for the Goods; or
(b)Credit any difference between the price quoted in the Order and the price we actually pay for the Goods against future amounts owing to us by you.
7.6The price of the Goods is inclusive of the costs and charges of packaging, insurance and transport of the Goods.
7.7The price of the Goods is exclusive of amounts in respect of value added tax (VAT). You shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.8We will invoice you for the Goods upon your acceptance of these Conditions.
7.9You shall pay the invoice in full and in cleared funds promptly upon receipt (and within any event, no later than 7 days)] from receipt). Payment shall be made to the bank account nominated in writing by us. Time of payment is of the essence, and no legally-binding Contract shall come into force between you and us until you have made payment in full.
7.10Where, notwithstanding clause 7.9, we agree in writing that you shall be entitled to pay our invoice by some later due date, then:
(a)the conditions set out in clause 2.4(a) shall not apply to that invoice; and
(b)if you fail to make any payment by that due date, then you specified shall pay interest on the overdue amount at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
7.11You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting any other rights or remedies we may have, set off any amount owing to us by you against any amount payable by us to you.
8.Termination and suspension
8.1If you become subject to any of the events listed in clause 8.2, we may terminate the Contract with immediate effect by giving written notice to you.
8.2For the purposes of clause 8.1, the relevant events are:
(a)you suspend, or threaten to suspend, payment of your debts, or are unable to pay your debts as they fall due or admit inability to pay your debts, or (being a company or limited liability partnership) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) have any partner to whom any of the foregoing apply;
(b)you commence negotiations with all or any class of its creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors;
(c)(being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up;
(d)(being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over your company;
(e)(being a company) the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;
(f)a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
(g)(being an individual) you are the subject of a bankruptcy petition or order;
(h)a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
(i)any event occurs, or proceeding is taken, in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(f) (inclusive);
(j)you suspend, threaten to suspends, cease or threaten to cease to carry on all or a substantial part of your business;
(k)your financial position deteriorates to such an extent that in our reasonable opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy; and
(l)(being an individual) you die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing your own affairs or become a patient under any mental health legislation.
8.3Without limiting our other rights or remedies, we may suspend provision of the Goods under the Contract if you become subject to any of the events listed in clause 8.2(a) to clause 8.2(l), or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under this Contract on the due date for payment.
8.4For the avoidance of all doubt, any change, cancellation, reduction, or restriction in any subsidies, rebates, refunds, or support that may be, or may have been, claimed from third parties, including, without limitation, the Renewable Heat Initiative, against the purchase and/or use of the Goods shall not be a ground for termination or cancellation of your order and no refunds shall be made in such circumstances.
8.5On termination of the Contract for any reason, you shall immediately pay to us all of our outstanding unpaid invoices and interest.
8.6Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
8.7Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9.Limitation of liability
9.1Nothing in these Conditions shall limit or exclude our liability for:
(a)death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
(b)fraud or fraudulent misrepresentation;
(c)breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d)defective products under the Consumer Protection Act 1987; or
(e)any matter in respect of which it would be unlawful for us to exclude or restrict liability.
9.2Subject to clause 9.1:
(a)we shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, reputation, opportunity or goodwill, or any indirect or consequential loss arising under or in connection with the Contract; and
(b)our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 0]% of the price of the Goods that are subject to the claim.
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.