1.1 In these conditions:

• “Buyer” means the person, company, or organisation purchasing the Goods.
  
• “Contract” means the Contract formed by the acceptance of the Order.
  
• “Goods” means the subject(s) of the Order.
  
• “Somerwood” means Somerwood Limited of Unit 2C, Priors Hall, Widdington, Saffron Walden, Essex, CB11 3SB, United Kingdom
  
• “Order” means the Buyer’s instructions to Somerwood to supply the Goods.
  
• “Order Acknowledgement” means the acceptance by Somerwood of the Order.
  
• “Price” means the Price for the Goods (exclusive of Value Added Tax) ruling at the date they are despatched by Somerwood.

2. Application of Conditions

2.1 These terms and conditions apply in preference to and supersede any terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between Somerwood and the Buyer with reference to the Goods to which this Contract relates.

2.2 Without prejudice to the generality of the above, Somerwood will not be bound by any standard or printed terms supplied by the Buyer in any of its documents, unless the Buyer specifically states in writing separately from such terms that it intends such terms to apply and Somerwood acknowledges such notification in writing.

2.3 Each Order for Goods by the Buyer to Somerwood shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.

2.4 No Order placed by the Buyer shall be deemed to be accepted by Somerwood until a written Order Acknowledgement is issued by Somerwood or (if earlier) Somerwood delivers the Goods to the Buyer.

2.5 The Buyer shall ensure that the terms of its Order and any applicable specification are complete and accurate.

2.6 Any quotation is given on the basis that no Contract will come into existence until Somerwood despatches an Order Acknowledgement to the Buyer. Unless specified otherwise by Somerwood, any quotation is valid for a period of 45 days only from its date, provided that Somerwood has not previously withdrawn it.

3. Prices

3.1 All quotations given are not offers capable of acceptance so as to make a binding Contract and so are subject to amendment or withdrawal by Somerwood.

3.2 All Orders placed with Somerwood require Somerwood’s acceptance before any Contract arises.

3.3 The Price stated in Somerwood’s catalogues or price lists, or in the Order are subject to variation without notice and Goods will be invoiced at Prices and, where applicable, exchange rates ruling at the date of despatch.

3.4 Unless otherwise stated by Somerwood, the Price of the Goods shall be exclusive of any Value Added Tax and all costs or charges in relation to loading, unloading, booking-in, carriage and insurance which the Buyer shall pay in addition.

4. Quantity Supplied

4.1 Goods can only be supplied in the standard pack or case quantity or ‘minimum buying quantity’ (or multiples thereof) shown in Somerwood’s catalogues and price lists.

4.2 Somerwood will endeavour to supply the quantity of Goods ordered but every Contract and delivery will be subject to the margins of tolerances (whether over or under the specified quantity) customary in the trade.

5. Changes

5.1 If, after receipt of the Order for Goods but before delivery, improvements are made in the design and/or specification of the Goods Somerwood may, without giving notice to the Buyer, supply the improved Goods in place of those originally ordered.

6. Packaging

6.1 Prices shown in quotations or Contracts will include the cost of Somerwood’s normal packaging for destinations in the UK. Any other forms of packaging supplied at the Buyer’s request will be charged extra and will be non-returnable.

7. Delivery

7.1 Unless otherwise stated, Somerwood shall deliver or arrange delivery of the Goods to the Buyer’s normal place of business or residence or such other place agreed in writing with the Buyer.

7.2 Delivery shall be deemed to be effective when the Goods are unloaded at the delivery address nominated by the Buyer or his Agent for delivery, except where the Goods are to be collected by the Buyer or his Agent, when delivery shall be deemed to be effective when the Goods are loaded on to the vehicle collecting them.

7.3 Somerwood reserves the right to deliver Goods by instalments and in such event each instalment shall be treated as a separate Contract provided that deliveries of further instalments may be withheld until the Goods or materials comprised in earlier instalments have been paid for in full.

7.4 Somerwood shall make every effort to abide by any agreed delivery date but Somerwood can accept no liability in respect of non-delivery or delayed delivery. If no date has been agreed, delivery will be within a reasonable time.

7.5 Subject to the other provisions of these Conditions, Somerwood shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods nor will any delay entitle the Buyer to terminate or rescind the Contract.

8. Non-Delivery

8.1 The quantity of any consignment of Goods as recorded by Somerwood upon despatch from Somerwood’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.

8.2 Somerwood shall not be liable for any non-delivery of Goods unless written notice is given to Somerwood within 10 days of expected delivery.

8.3 Any liability of Somerwood for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

9. Specifications

9.1 The Buyer shall inspect the Goods immediately upon delivery and shall within 3 days of delivery notify Somerwood in writing of any defect, damage, loss, shortage, or other particulars by reason of which the Buyer alleges that the Goods do not conform with the Order. If no such notice is given, the Goods shall be deemed to have been supplied in accordance with the Order and to have been accepted by the Buyer.

9.2 The Buyer is responsible for ensuring that any returns are free from biological and chemical hazard. Somerwood reserves the right to refuse to accept Goods which in its view present a hazard to its staff or which may infringe the Health and Safety at Work Act.

9.3 Somerwood warrants that the Goods delivered to the Buyer shall be free from defects in materials and workmanship and shall correspond with the description referred to in the Contract but Somerwood’s liability hereunder is limited to the Price of the Goods proved to be defective and for this purpose the Price shall be deemed to be the invoice Price of the Goods. Somerwood shall be entitled in its absolute discretion to replace such Goods upon the terms hereof in settlement of its liability in lieu of making a cash settlement.

10. Payment

10.1 Unless otherwise agreed in writing the Price will be paid in Pounds Sterling.

10.2 Payment is due before Somerwood despatches the Goods to the Buyer.

10.3 All sums payable to Somerwood under the Contract shall become due immediately upon termination of the Contract despite any other provision.

10.4 The Buyer shall make all payments due under the Contract without any deduction by way of set-off, counterclaim, discount, abatement or otherwise.

10.5 Should a well-founded doubt arise about the Buyer's ability or willingness to pay invoices on the due date, Somerwood reserves the right to cancel the Contract or postpone delivery until payment has been received.

10.6 If the Buyer fails to pay Somerwood any sum pursuant to the Contract the Buyer will be liable to pay interest to Somerwood on such sum from the due date for payment at the rate of 5% above the base lending rate from time to time of Somerwood’s bankers accruing on a daily basis until payment is made, whether before or after any judgment.

11. Export terms

11.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Buyer and Somerwood) apply notwithstanding any other provision of these Conditions.

11.2 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.

11.3 Unless otherwise agreed in writing between the Buyer and Somerwood, the Goods shall be available ex works at Somerwood’s premises with the Buyer collecting or arranging collection of the Goods and Somerwood shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

11.4 The Buyer shall be responsible for arranging for testing and inspection of the Goods at Somerwood’s premises before shipment. Somerwood shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

11.5 Payment of all amounts due to Somerwood shall be made by irrevocable letter of credit by the Buyer in favour of Somerwood and confirmed by a bank in the United Kingdom acceptable to Somerwood, or if Somerwood has agreed in writing on or before acceptance of the Buyer’s Order to waive this requirement, by acceptance by the Buyer and delivery to Somerwood of a bill of exchange drawn on the Buyer payable 60 days after sight to the order of Somerwood at such branch of the HSBC bank as may be specified in the bill of exchange.

12. Title

12.1 Ownership of the Goods shall not pass to the Buyer until Somerwood has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to Somerwood from the Buyer on any account including any interest on such sums.

12.2 Until ownership of the Goods has passed to the Buyer, the Buyer shall hold the Goods on a fiduciary basis as Somerwood’s bailee, store them separately to other Goods of the Buyer or any third party in a way that they remain readily identifiable as Somerwood’s property, not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods, maintain them in satisfactory condition insured for their full Price against all risks and hold the proceeds of insurance on trust for Somerwood and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

12.3 Until the property in the Goods passes to the Buyer in accordance with the above conditions, Somerwood shall have the right and is hereby irrevocably granted a Licence by the Buyer to enter any premises in the occupation of or under the control of the Buyer during normal business hours for the purpose of obtaining possession of the Goods.

12.4 The Buyer’s right to possession of the Goods shall terminate immediately if:
12.4.1 the Buyer has a bankruptcy Order made against it or makes an arrangement or composition with its creditors or (being a body corporate) convenes a meeting of creditors (except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation), or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented for the winding up of the Buyer or for the granting of an administration Order in respect of the Buyer, or any proceedings are commenced relating to the insolvency of the Buyer; or
12.4.2 the Buyer encumbers or in any way charges any of the Goods or suffers or allows any execution to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other Contract between Somerwood and the Buyer, or is unable to pay its debts or the Buyer ceases to trade.

12.5 Somerwood shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Somerwood.

13. Risk

13.1 The risk passes to the Buyer when the Goods are delivered by Somerwood to the Buyer or to a carrier (whether employed by Somerwood or the Buyer) on leaving Somerwood’s premises.

13.2 The Buyer may resell the Goods before ownership has passed to it solely on the condition that any sale shall be on the Buyer’s own behalf in the ordinary course of the Buyer’s business and the Buyer shall deal as principal when making such sale.

14. Use

It is the Buyer's responsibility to determine whether Goods are suitable for the contemplated use, whether or not such use is known to Somerwood. Any technical advice offered by Somerwood or its representatives or agents is given without charge and only on the basis that it is followed at the user's own risk.

15. Import Licences

The Buyer shall be responsible for obtaining any necessary import licences, details of which should be noted on the Buyer’s Order.

16. Availability

All goods are offered at all times subject to availability.

17. Acceptance

Acceptance of goods implies acceptance of these conditions.

18. Force Majeure (Events beyond Somerwood’s control)

If the commencement, continuation or complete performance by Somerwood of its obligations under this Contract is prevented, hindered, delayed or rendered uneconomic by reason of Force Majeure then Somerwood shall not be responsible to the Buyer for any loss or damage incurred or sustained by the Buyer as a result. For the purpose of this condition the term Force Majeure shall include any factor affecting the performance of this Contract attributable to acts, events, non happenings, omissions or incidents beyond the reasonable control of Somerwood and in particular (without limiting the generality of the above) the following; strikes, lock-outs, riots, civil revolution, war, state of national emergency, trade dispute or labour disturbance, accident, breakdown of plant or machinery, difficulty or increased expense in obtaining workmen, materials or transport, fire, explosions, storm, flood, earthquake or other natural physical disaster or circumstances affecting the supply of the Goods (or raw materials) by Somerwood’s normal source of supply or the delivery of the Goods by Somerwood’s normal route or means of delivery.

19. Refunds, Replacements and Cancellations

19.1 If upon delivery of the Goods the Buyer considers that the Goods are not suitable for his or her intended purpose, the Buyer may return the Goods to Somerwood’s place of business and Somerwood shall at the discretion of the Buyer:

19.1.1 repair the Goods; or
19.1.2 replace the Goods with other Goods having the same Price; or
19.1.3 replace the Goods with other Goods having a different Price, in which case the Buyer shall pay or Somerwood shall refund the difference in Price, as the case may be; or
19.1.4 refund the Price of the Goods

in each case provided that the Buyer returns the Goods to Somerwood within 28 days of the delivery of the Goods and provided also that the Goods are returned to Somerwood in good order such that the Goods are resalable by Somerwood and in the packaging in which they were delivered to the Buyer. Somerwood shall then have no further liability in respect of the Goods considered by the Buyer to be unsuitable for his or her intended purpose.

19.2 Condition 19.1 shall not apply in respect of walking canes or sticks that have been cut to a specific size by Somerwood at the request of the Buyer unless Somerwood and the Buyer agree that the Goods are defective.

19.3 If the Buyer returns the Goods to Somerwood under the provisions of condition 19.1 because he or she believes the Goods to be defective, Somerwood shall be liable for the cost of returning the Goods to Somerwood’s place of business, provided that the Buyer gives notice to Somerwood of the nature of the perceived defect and Somerwood agrees that the Goods are defective, and provided also that the defect has not arisen because the Buyer either has failed to follow Somerwood’s instructions as to the storage or use of the Goods or has altered or repaired the Goods without Somerwood’s written consent.

20. Limitation of Liability

20.1 Except for death or personal injury caused by the negligence of Somerwood, Somerwood’s aggregate liability to the Buyer however arising whether for negligence, breach of Contract, misrepresentation or otherwise shall under no circumstances exceed the cost of the defective damaged or undelivered Goods which give rise to such liability as determined by the net Price invoiced to the Buyer in respect of any occurrences or series of occurrences.

20.2 Subject to condition 19, the following provisions set out the entire financial liability of Somerwood (including any liability for the acts or omissions of its employees, agents and sub-Contractors) to the Buyer in respect of:
20.2.1 any breach of these Conditions; and
20.2.2 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.

20.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

20.4 Nothing in these Conditions excludes or limits the liability of Somerwood for death or personal injury caused by Somerwood’s negligence or fraudulent misrepresentation.

20.5 Subject to conditions 20.3 and 20.4:
20.5.1 Somerwood’s total liability in Contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price of the Goods the subject of the Contract and
20.5.2 Somerwood shall not be liable to the Buyer for loss of profit or any type of indirect or consequential loss or damage (whether loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

21. General

21.1 The Buyer shall not assign the Contract or any part of it without the prior written consent of Somerwood.

21.2 Somerwood shall be entitled to assign the Contract or any part of it to any person, firm or company.

21.3 The Buyer shall not use Somerwood’s name, logo or other intellectual property rights in advertising or publicity without Somerwood’s prior written consent.

21.4 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

21.5 Failure or delay by Somerwood in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

21.6 Any waiver by Somerwood of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.

21.7 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its 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 notice.

21.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties shall submit to the exclusive jurisdiction of the English courts.

21.9 Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement, or (in default) nominated on the application of either party by the President for the time being of The Law Society of England and Wales.