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Terms and Conditions

2019/20 Terms of Business

INTERPRETATION

In these Conditions of sale, the following words and phrases shall have the following meanings, unless the context otherwise requires:

‘PURCHASER’ means the person, firm, limited liability partnership, corporation or company who/which has accepted a quotation from the Vendor for the sale of the Goods, or whose order for the goods has been accepted by the Vendor.

‘GOODS’ means the goods which are to be sold and bought under the Contract (the quantity and specification of which shall be stated in the contract).

‘VENDOR’ means RARS Woodlands Ltd, RARS Woodlands 2 Ltd, RARS Woodlands 3 Ltd, all trading as ‘Galloway Woodlands’, Courance Farms, Lockerbie, DG11 1TP.

‘CONDITIONS’ means the Conditions of Sale set out in this document.

‘CONTRACT’ means the contract by which the Vendor has agreed to sell and the Purchaser has agreed to buy the Goods, consisting of the vendors’ quotation and the Purchasers’ written acceptance or written acknowledgement of the same, or the acceptance by the Vendor of the Purchasers’ order duly incorporating the conditions.

‘WRITING’ includes email, facsimile transmissions and any other comparable means of communication. The headings in these Conditions are for convenience only and shall not affect their construction.

BASIS OF SALE

Any variation of the Contract and/or these Conditions shall have no legal effect unless expressly agreed in writing and signed by an authorised signatory of the Vendor.

ORDERS AND SPECIFICATIONS

3.1 No order submitted by the Purchaser shall be deemed to be accepted by the Vendor unless and until confirmed in writing by the Vendor and the Purchaser shall be responsible to the Vendor for ensuring the accuracy of the terms of any order submitted by the Purchaser.

3.2 The quantity, quality and description of the Goods shall be as set out in the Vendors’ quotation (if accepted by the Purchaser) or the Purchasers’ order (if accepted by the Vendor).

3.3 Any specifications, advertising material and any descriptions and illustrations contained in the Vendors’ catalogues or brochures (“the specifications”) are issued for the purposes of giving an approximate idea of the Goods. When the Goods are natural products the Vendor cannot guarantee that the appearance and/or colours shown in the Specifications exactly represent the appearance and/or colours of the Goods sold.

3.4 All sizes quoted are in accordance with the Vendors’ measuring policy.

3.5 The Contract will be subject to the provision of the Sale of Goods Act 1979 (and amendments thereof) (the Act).

3.6 The Goods are perishable Goods for the purposes of the Consumer Protection (Distance Selling) Regulations 2000 as amended by S11689 2005 (“the Regulations”). The Purchaser acknowledges that it shall not have a cancellation right under the Regulations.

3.7 No order which has been accepted by the Vendor may be cancelled by the Purchaser except with the agreement in writing of the Vendor and on terms that the Purchaser shall indemnify the Vendor in full against all loss (including loss of profit), costs (including the cost of all labour), damages, charges and expenses incurred by the Vendor as a result of cancellation.

THE PRICE OF GOODS

4.1 The price of the Goods shall be the Vendors’ quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Vendors’ published price list current at the date of acceptance of the order.

4.2 Unless otherwise stated, all prices quoted are valid for 7 days only or until acceptance in writing by the Purchaser after which time they may be altered by the Vendor without giving notice to the Purchaser.

4.3 All prices are, except where otherwise stated, given by the Vendor on an ex stock basis, and where the Vendor agrees to deliver the Goods otherwise than at the Vendors’ premises, the Purchaser shall be liable to pay the Vendors charges for transport, packaging and insurance.

4.4 The price is exclusive of any applicable Value Added Tax, which the Purchaser shall be additionally liable to pay to the Vendor.

TERMS OF PAYMENT

5.1 Unless an agreement has been reached under clause 5.3 below the Purchaser shall pay for the goods in cash or via BACS on or before delivery of the Goods.

5.2 Payment by cheque may be accepted but no delivery of the Goods will be made until the Purchasers’ cheque has cleared in the Vendors’ account.

5.3 Subject to Clause 5.4 below, and provided the Purchaser makes an application to the Vendor at least 28 days prior to the date of delivery, the Vendor may, subject to satisfactory references, allow the Purchaser to pay for the Goods within a period of 30 days from the date of delivery of the Goods or such greater period as may be agreed in writing between the Purchaser and the Vendor. If payment is not made by the end of the agreed period then the Vendor shall, without prejudice to any other right available to it, be entitled to charge the Purchaser interest at 2% of the total invoice sum per month or part of a month during which payment is overdue, plus a small administrative charge.

5.4 Any credit given by the Vendor to the Purchaser may be withdrawn or limited at any time by the Vendor on such notice as the Vendor may think fit and without explanation and consequent thereon the Vendor may refuse to deliver all or part of the Goods unless full payment of the price is made in accordance with clauses 5.1 and 5.2.

DELIVERY

6.1 Where applicable, the Vendor shall notify the Purchaser in writing when the goods are ready for collection.

6.2 Unless Clause 6.4 hereof applies, the Purchaser shall make arrangements for collection of the Goods at the Purchasers expense.

6.3 Collection of the Goods by the Purchaser shall constitute delivery.

6.4 Where applicable, if the Purchaser so requests in writing and the Vendor agrees in writing the Vendor shall arrange for the delivery of the Goods to an address specified by the Purchaser. Any such delivery shall be on the basis that the Purchaser shall pay the price in full and in advance to the Vendor on demand for all the costs of transportation and insurance of the Goods.

6.5 Delivery of the Goods by the Vendor shall be conditional upon free access being available to the Vendors’ (or the Vendors’ carriers’) vehicles to the address of delivery. Deliveries by the Vendor may be made by using large vehicles. It is the Purchasers responsibility to inform the Vendor of any access problems no later than midday on the day prior to the collection of the Goods. If delivery of the Goods is not possible in the opinion of the Vendor, then the Vendor reserves the right to cancel the order without penalty.

6.6 The Vendor will use its reasonable endeavours to meet any quoted date of delivery of the Goods.

6.7 In making delivery of the Goods, time shall not be of the essence of the contract and the Vendor shall not be liable for any loss, cost or expense suffered by the Purchaser by reason of any delay in delivery of the Goods.

6.8 If the Vendor fails to deliver the Goods other than as a result of any cause whatsoever, which is out with the control of the Vendor, or as a result of the fault of the Purchaser, then in such circumstances if the Vendor becomes liable to the Purchaser, the Vendors’ liability shall be expressly limited to the excess (if any) of the cost of similar Goods to the Purchaser (in the cheapest available market) to replace those not delivered over the price of the Goods.

6.9 If Clause 6.1 applies and the Purchaser fails to take delivery of the Goods or fails to give the Vendor adequate delivery instructions within 7 days from the Vendors notice (otherwise by reason of any cause beyond the Purchasers reasonable control or by reason of the Vendors fault) then, without prejudice to any other right or remedy available to the Vendor, the Vendor at its sole discretion may:

6.9.1 store the Goods until actual delivery and charge the Purchaser for the reasonable costs (including insurances) of storage; or

6.9.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Purchaser for the excess over the price under the Contract or charge the Purchaser for any shortfall below the price under the Contract.

6.10 Notwithstanding the provisions of clause 6.9 if the Purchaser fails to collect the Goods at the agreed time the Purchaser shall be liable for any loss suffered by the Vendor due to deterioration of the Goods.

6.11 If it has been agreed in writing between the Vendor and the Purchaser that the Vendor will deliver the Goods by instalments, each instalment shall be a separate Contract and no cancellation or termination of any one contract relating to an instalment shall entitle the Purchaser to cancel any other Contract or instalment.

RISK, LIEN AND TITLE

7.1 The risk of any loss or destruction of, or any damage to the Goods shall pass to the Purchaser;

7.1.1 where Clause 7.1.3 applies when the Goods are collected by the Purchaser from the Vendors’ premises.

7.1.2 where Clause 6.4 applies, when the Vendor despatches the Goods.

7.1.3 where Clause 6.9 applies, on the expiry of the period of 4 hours from the Vendors’ notice in writing in accordance with Clause 6.9.

7.2 Notwithstanding the provisions of Clause 7.1.2, in the event of all or any of the Goods being lost or destroyed in transit or rightfully rejected by the Purchaser and provided such event is notified to the Vendor within 2 days, the Vendor shall treat its contractual obligation as continuing and deliver a similar quantity of Goods on the terms hereof.

7.3 Without prejudice to the terms of these Conditions, the Vendor shall have a lien or right to withhold delivery of the Goods to the Purchaser or such part of the Goods as are in the possession of the Vendor or in transit until payment in full of the price of the Goods, Value Added Tax thereon and the costs of transportation and insurance is received.

7.4 Notwithstanding delivery and the passing of risk in the Goods, or any other provisions of these conditions, title and ownership in the Goods shall remain with the Vendor until the Vendor has received in cash or cleared funds payment in full of the price of the Goods, any applicable value Added Tax thereon and the cost of transportation and insurance and all other Goods agreed to be sold by the Vendor to the Purchaser for which payment is then due.

7.5 Until title and ownership in the Goods pass to the Purchaser, the Purchaser shall hold the Goods as the Vendors fiduciary agent and bailee, and shall keep the Goods separate from those other Goods of the Purchaser and third parties and properly stored, protected and insured and identified as the Vendors’ property. Until that time the Purchaser shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Vendor for the proceeds of sale including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Purchaser and third parties.

WARRANTIES AND LIABILITIES

8.1 The Vendor warrants to the Purchaser that the Goods shall, at the time when the Purchaser is notified that they are ready for collection (or at the time of dispatch, as the case may be under Clause 6) and subject to Clauses 3.3 and 3.4;

8.1.1 be of satisfactory quality within the meaning of Section 14 of the Act;

8.1.2 be reasonably fit for purpose;

8.1.3 conform to the description expressly stated in the contract or, where applicable, to the sample exhibited to the Vendor before the Contract is entered subject to Clauses 3.3 and 3.4.

8.2 The Purchasers rights under Clause 8.1 shall not be assignable.

8.3 Any claim by the Purchaser against the Vendor under Clause 8.1 must be made by notice in writing given to the Vendor within 72 hours from delivery failing which the Vendor shall not have any liability in respect of the Goods and the Purchaser shall be bound to pay the price.

8.3.1 The Purchaser shall not be entitled to make any claim in respect of the quality of the Goods after they have been sold by the Purchaser to a third party unless a retail guarantee has been agreed between the Purchaser and the vendor.

8.3.2 Where a dispute arises between the Purchaser and the vendor as to the quality of the Goods, the matter shall be referred, failing agreement between the parties, to two independent experts appointed by The Horticultural Trade Association and the British Christmas Tree Growers Association respectively. The decision made by the experts shall be binding on the parties who shall bear the cost of such process in equal shares.

8.4 Goods delivered on pallets must be removed from the pallets by the Purchaser and placed in a vertical position within 48 hours from the time displayed on the Vendors’ (or Vendors carriers) delivery note signed by the Purchasers authorised representative. If the Purchaser fails to remove the goods from the pallet and/or place them in vertical position within the 72 hour period provided in this Clause 8.4, the Vendor will not be liable in any way for any deterioration of the Goods condition or continuing quality.

8.5 Quality Guarantee applies to the Premium Nordmann fir only. If you are not satisfied with certain premium Nordmann trees we will replace them but you must notify us within 5 hrs of taking delivery, and must return the faulty trees to us within 48 hrs of taking delivery. Replacement trees will reach you the day after the faulty trees are returned to us

INSOLVENCY OF PURCHASER

9.1 This Clause applies if:

9.1.1 the Purchaser makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or has a Trustee in Sequestration appointed or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Purchaser; or

9.1.3 the Purchaser ceases, or threatens to cease, to carry on business; or

9.1.4 the Vendor reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser in writing accordingly.

9.2 If this Clause applies then, without prejudice to any other right or remedy available to the Vendor, the Vendor shall be entitled to cancel immediately without any prior intimation to the Purchaser, the contract or suspend any further deliveries under the Contract without any liability to the Vendor, and if the Goods have been delivered but not paid for by the Purchaser shall, at the option of the Vendor, make any Goods still at this premises available for collection by the Vendor and the price for the Goods shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, credit to be given for any Goods collected by the Vendor.

GENERAL CONDITIONS

10.1 All communications between the vendor and the Purchaser in relation to the contract must be in writing and delivered by first class post, facsimile transmission or email:

10.1.1 in the case of communications to the Vendor, to the Vendors’ Registered Office or such other address as shall be notified to the Purchaser by the Vendor; or

10.1.2 in the case of communications to the Purchaser to the Registered Office of the Purchaser (if it is a company) or to such other address of the Purchaser as shall be notified to the Vendor by the Purchaser.

10.2 Communications shall be deemed to have been received:

10.2.1 if sent by first class post, 2 days (excluding Saturdays, Sundays and UK public holidays) after posting

10.2.1 if sent by facsimile transmission or email on a working day before 4pm, at the time of transmission, and otherwise the next working day.

10.3 No waiver by the Vendor of any breach of contract by the Purchaser shall be considered as a waiver of any subsequent breach of the same or any other provision.

10.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question, shall not be affected thereby.

10.5 The Contract shall be governed by English Law.

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