In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with Condition 18.
Contract: the contract between Tom Goldsmith Joinery and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Tom Goldsmith Joinery.
Force Majeure Event: has the meaning given in Condition 12.
Goods: the sale and/or supply of goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as set out in the Customer's order form or the Customer's written acceptance of Tom Goldsmith Joinery's quotation and/or estimate, as the case may be.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Tom Goldsmith Joinery
In these Conditions, the following rules apply:
2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
2.3 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.
2.4 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.
2.5 A reference to writing or written includes emails.
3.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
3.3 The Order shall only be deemed to be accepted when Tom Goldsmith Joinery issues a written acceptance of the Order, at which point the Contract shall come into existence.
3.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Tom Goldsmith Joinery which is not set out in the Contract.
3.5 Any samples, drawings, descriptive matter, or advertising produced by Tom Goldsmith Joinery and any descriptions or illustrations contained in Tom Goldsmith Joinery's promotional materials 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.
3.6 A quotation or estimate for the Goods given by Tom Goldsmith Joinery shall not constitute an offer. A quotation or estimate shall only be valid for a period of 20 Business Days from its date of issue.
4. THE GOODS
4.1 The Goods are described in the Specification.
4.2 Where the Goods are manufactured or supplied in accordance with a description or specification provided by the Customer, the Customer shall be responsible for ensuring the accuracy and adequacy of the description or specification, and for providing Tom Goldsmith Joinery with all the necessary information relating to the Goods within a sufficient time to enable Tom Goldsmith Joinery to perform the contract in accordance with its terms.
4.3 Tom Goldsmith Joinery may from time to time make changes to the description or specification of the Goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality of the Goods.
4.4 Where any designs, patterns or specifications have been supplied by the Customer for manufacture by or to the order of Tom Goldsmith Joinery then the Customer warrants that the use of those designs, patterns or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
4.5 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Tom Goldsmith Joinery 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 Tom Goldsmith Joinery in connection with any claim made against Tom Goldsmith Joinery for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Tom Goldsmith Joinery’s use of the Specification. This Condition 4.5 shall survive termination of the Contract.
4.6 Subject to Conditions 4.2 and 4.4, the quantity, quality and description of the Goods shall be as stated on the quotation or estimate provided by Tom Goldsmith Joinery, or in other written correspondence between the Customer and Tom Goldsmith Joinery.
4.7 It is the responsibility of the Customer to inspect the quantity, quality and conformity to description and specification of the Goods and notify Tom Goldsmith Joinery immediately upon delivery of the Goods.
5. DELIVERY OF GOODS
5.1 Delivery of the Goods shall be made, subject to Condition 5.2, on the delivery date to the Customer’s address, or to an address reasonably specified by the Customer, or to Tom Goldsmith Joinery’s address if it has been agreed that the Customer will arrange collection of the Goods and the Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
5.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Tom Goldsmith Joinery shall not be liable to the Customer or be deemed to be in breach of the Conditions by reason of any delay or failure in delivery if the delay or failure was due to a Force Majeure Event and/or the Customer's failure to provide Tom Goldsmith Joinery with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.3 Subject to Condition 9.8, the cancellation of any Order must be notified by the Customer to Tom Goldsmith Joinery in writing and the Customer is liable for the full costs of any materials ordered and/or the costs of any work carried out and/or services provided prior to the date of receipt of the relevant cancellation notice.
5.4 Tom Goldsmith Joinery is pleased to undertake work for Customers in relation to insurance claims provided always that the Customer (not the insurance company) is responsible to Tom Goldsmith Joinery for payment of any invoices under the contract.
5.5 Without prejudice to Condition 5.4, Tom Goldsmith Joinery is unable to deal with insurance companies directly unless agreed in writing between the Parties and the relevant insurance company.
5.6 If Tom Goldsmith Joinery fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Tom Goldsmith Joinery shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by: (i) a Force Majeure Event and/or (ii) the Customer's failure to provide Tom Goldsmith Joinery with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.1 Subject to Conditions 6.4 and 6.6, where Goods which have been manufactured and/or installed by Tom Goldsmith Joinery are found to be defective, Tom Goldsmith Joinery shall repair (or, at its sole discretion, replace) defective Goods provided that:
6.1.1 the Customer gives written notice of the defect within a reasonable time of discovery (and no later than 6 months from the date of the invoice) of a defect;
6.1.2 the defect is due to Tom Goldsmith Joinery’s design, workmanship or materials;
6.1.3 the Customer has complied with Tom Goldsmith Joinery’s oral and/or written instructions as to storage, installation, use or maintenance of the Goods or in accordance with good trade practice;
6.1.4 the defect has not arisen as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
6.1.5 the Customer has not altered or repaired such Goods without the written consent of Tom Goldsmith Joinery;
6.1.6 the defect is not due to rot or insect attack; and
6.1.7 Tom Goldsmith Joinery is given a reasonable opportunity of examining such Goods.
6.2 Any Goods to be repaired or replaced under Condition 6.1 that did not originally require installation shall be delivered to Tom Goldsmith Joinery’s place of business at the Customer’s expense.
6.3 All external Goods must be fully decorated within 1 month of delivery/installation and then at regular intervals thereafter.
6.4 Tom Goldsmith Joinery’s liability in respect of Goods shown to be defective or which materially deviate from the description or Specification will be limited to rectification or replacement in accordance with Condition 6.1. Tom Goldsmith Joinery shall have no liability whatsoever to the Customer for any indirect or consequential losses and/or expenses (including but not limited to loss of profit) suffered by the Customer.
6.5 Subject to Condition 6.1, where the Customer accepts or is deemed to have accepted any Goods, then Tom Goldsmith Joinery shall have no liability whatsoever to the Customer in respect of those Goods.
6.6 For the avoidance of doubt, Tom Goldsmith Joinery shall in no circumstances be required to enter into negotiations with third parties regarding alleged defects.
6.7 In accordance with glass manufacturers, slimline glass has a 12 month guarantee from the date of supply.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until Tom Goldsmith Joinery receives payment in full (in cash or cleared funds) for the Goods and any other goods that Tom Goldsmith Joinery has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to Tom Goldsmith Joinery, the Customer shall:
7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Tom Goldsmith Joinery's property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.3.4 notify Tom Goldsmith Joinery immediately if it becomes subject to any of the events listed in Condition 9.2; and
7.3.5 give Tom Goldsmith Joinery such information relating to the Goods as Tom Goldsmith Joinery may require from time to time.
7.4 If, before title to the Goods passes to Tom Goldsmith Joinery, the Customer becomes subject to any of the events listed in Condition 9.2, then, without limiting any other right or remedy Tom Goldsmith Joinery may have, Tom Goldsmith Joinery may at any time:
7.4.1 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
7.4.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Order.
8.2 Tom Goldsmith Joinery may, by giving notice to the Customer 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:
8.2.1 any factor beyond Tom Goldsmith Joinery's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
8.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
8.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give Tom Goldsmith Joinery adequate or accurate information or instructions.
8.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.4 The Customer 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). Tom Goldsmith Joinery may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Tom Goldsmith Joinery to the Customer.
8.5 An invoice shall be issued by Tom Goldsmith Joinery to the Customer in accordance with the terms set out in the Order or the agreed quotation/estimate (as the case may be) and the Customer shall pay for the Goods in accordance with the payment schedule detailed in the invoice or such Order/quotation or estimate (as the case may be) and in accordance with this Condition 8.
8.6 If the Parties agree that Tom Goldsmith Joinery is to provide additional goods and/or services in addition to the Goods specified in the Order (“Additional Goods”), then such agreement will be reflected in a further quotation or estimate, which shall be deemed to incorporate these Conditions.
8.7 The balance of the price shall be due upon completion of the installation or delivery of the Goods (as the case may be) and payment must be made to Tom Goldsmith Joinery in full no later than 7 days after the date of completion.
8.8 Payment of all sums due to Tom Goldsmith Joinery under the contract shall be made by cash, cheque or BACS transfer. Cheques must be made payable to ‘Tom Goldsmith’.
8.9 If the Customer fails to make any payment by the due date then, without prejudice to any other right or remedy available to Tom Goldsmith Joinery, Tom Goldsmith Joinery shall be entitled to:
8.9.1 Delay or suspend further work carried out under the contract;
8.9.2 Charge the Customer interest on the overdue amount at a rate of 4% per annum from the date the payment is due until the payment is made; and/or
8.9.3 Terminate the contract with immediate effect for breach on the part of the Customer.
8.10 The Customer shall indemnify Tom Goldsmith Joinery for any losses, costs and expenses (including, without limitation, loss of profits, reasonable collection costs and third party costs) suffered by Tom Goldsmith Joinery as a result of the Customer’s failure to make any payment by the due date and/or the termination of the contract by Tom Goldsmith Joinery pursuant to Condition 8.9.3.
9. TERMINATION & SUSPENSION
9.1 If the Customer becomes subject to any of the events listed in Condition 9.2, Tom Goldsmith Joinery may terminate the Contract with immediate effect by giving written notice to the Customer.
9.2 For the purposes of Condition 9.1, the relevant events are:
9.2.1 the Customer becomes insolvent or bankrupt, a creditor, administrative receiver or administrator is appointed, a winding up petition is filed, or any other analogous event occurs or proceeding
is taken with respect to the Customer;
9.2.2 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
9.2.3 the Customer's financial position deteriorates to such an extent that in Tom Goldsmith Joinery’s opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
9.2.4 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.3 Without limiting its other rights or remedies, Tom Goldsmith Joinery may suspend provision of the Goods under the Contract or any other contract between the Customer and Tom Goldsmith Joinery if the Customer becomes subject to any of the events listed in Condition 9.2, or Tom Goldsmith Joinery reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.4 If the performance of the contract by Tom Goldsmith Joinery shall be prevented by a Force Majeure Event, then Tom Goldsmith Joinery shall have the right to be discharged from the further performance of any liability under the contract. If Tom Goldsmith Joinery exercises such a right then the Customer shall thereupon pay the contract price less a reasonable allowance for what has not been performed by Tom Goldsmith Joinery.
9.5 On termination of the Contract for any reason the Customer shall immediately pay to Tom Goldsmith Joinery all of Tom Goldsmith Joinery’s outstanding unpaid invoices and interest.
9.6 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
9.7 Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9.8 Save to the extent permitted by law, no cancellation by the Customer is permitted except where expressly agreed in writing by Tom Goldsmith Joinery. Where an Order is cancelled by the Customer, it shall indemnify Tom Goldsmith Joinery in full against any loss (including loss of profit), costs (including cost of all labour and materials), damages, charges and expenses incurred by Tom Goldsmith Joinery as a result of such cancellation.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude Tom Goldsmith Joinery's liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
10.1.4 defective products under the Consumer Protection Act 1987; or
10.1.5 any matter in respect of which it would be unlawful for Tom Goldsmith Joinery to exclude or restrict liability.
10.2 Subject to Condition 10.1:
10.2.1 Tom Goldsmith Joinery shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2 Tom Goldsmith Joinery’s total liability to the Customer 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 the price of the Goods. Tom Goldsmith Joinery shall not be liable to the Customer for any losses (including but not limited to loss of profit), costs, damages, charges or expenses incurred by the Customer or for any loss or damage to or caused by the Goods.
10.2.3 All other conditions, warranties or other stipulations concerning the Goods whether express or implied by common law or under statute are excluded to the fullest extent permitted by law, and, in particular, but without limiting the foregoing generality, Tom Goldsmith Joinery grants no warranties regarding fitness for purpose, use, quality or nature of the Goods whether express or implied by statute or common law.
10.3 For “supply only” Goods, the Customer is responsible for the accuracy of sizes requested. Any amendments made to the Goods due to inaccurate sizes will be charged to the Customer.
10.4 Whilst every attempt is made to eliminate the expansion and shrinkage of external/internal joinery items such as gates, doors and windows by allowing a certain amount of clearance, Tom Goldsmith Joinery cannot accept liability for any expansion/shrinkage or swelling of these items.
10.5 Unless otherwise stated, priming, staining or painting of Goods is not included in the price for the Order.
10.6 Timber is a natural product, therefore there is always colour differentials within the wood and whilst every effort is made to ensure the colour/grain matches with other timber, tolerances will have to be allowed for, unless a “book matched” product has been expressly requested by the Customer and agreed with Tom Goldsmith Joinery for such additional price.
10.7 Tom Goldsmith Joinery carry out an amount of “machine only” works for clients, and unless a cutting list is provided with all boards fully marked, then Tom Goldsmith Joinery cannot be held responsible for elements of waste within the material supplied. Tom Goldsmith Joinery follow the standard tolerances within the timber trade, which allows for (+-) 0.5 mm within machine works. Tom Goldsmith Joinery will make the Customer aware if Tom Goldsmith Joinery feel the timber supplied is sub-standard for the works proposed.
11. PLANNING PERMISSION & BUILDING REGULATIONS
11.1 It is the Customer’s responsibility to ensure that Local Authority approval is sought with regards to Planning Permission and/or Building Regulations, unless otherwise agreed between Tom Goldsmith Joinery and the Customer in writing. This includes but is not limited to applying for Planning Permission and/or Building Regulations Approval, providing all associated plans and drawings, and paying any associated fees.
11.2 Where Planning Permission and/or Building Regulations approval is required, a letter granting permission for Tom Goldsmith Joinery to start work must be obtained before any work is undertaken. Tom Goldsmith Joinery is then responsible for ensuring that any work complies with Building Regulations approval.
11.3 In the case of removal or alteration of load bearing and/or non-load bearing walls, it is the Customer’s responsibility to obtain advice from a structural engineer and obtain any drawings and calculations that are necessary.
12. FORCE MAJEURE
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.
13. ASSIGNMENT AND OTHER DEALINGS
13.1 Tom Goldsmith Joinery may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Tom Goldsmith Joinery.
14.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or e-mail (provided such email is less than 1MB).
14.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 14.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, on acknowledgement of receipt by Tom Goldsmith Joinery.
14.3 The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action.
15.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the rest of the Contract.
15.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17. THIRD PARTIES
A person who is not a party to the Contract shall not have any rights to enforce its terms.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Tom Goldsmith Joinery.
19. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the Parties hereto submit to the non-exclusive jurisdiction of the English courts.