BALCAS ENERGY TERMS & CONDITIONS OF SALE

BALCAS TIMBER LIMITED

STANDARD BALCAS ENERGY TERMS & CONDITIONS OF SALE

1.             Interpretation

 

• The definitions in this clause apply in the terms and conditions set out in this document:“ Balcas” Balcas Timber Limited, a company incorporated and registered in Northern Ireland with company number NI026014 whose registered office is at 75 Killadeas Road, Laragh, Ballinamallard, Enniskillen, County Fermanagh, BT94 2ES. Our VAT number is GB 251770662.

“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks are generally speaking, open for business (taking into consideration where Balcas and the Customer are based).

“Customer” the person or organisation purchasing goods from Balcas.
“Design Guide” the UKPC design guide as referred to in clause 4, a copy of which is available from the UKPC website www.pelletcouncil.org.uk

“Force Majeure Event” shall have the meaning given in clause 9.
“Goods” the products that Balcas sells to the Customer as set out in the Order.
“Order” the Customer’s order for the Goods.
“Order Confirmation” shall have the meaning given in clause 2.4.
“Relevant Sample” shall have the meaning given in clause 3.10.
“Terms” the terms and conditions set out in this document.
“Writing” or written includes faxes and e-mail.

 

Other applicable terms

These terms of use refer to the following additional terms which also apply to your use of our site:

(i) our privacy policy, found here, which sets out how we use personal information which you provide to us or which we otherwise collect from you.  By using our site, you consent to such processing and you warrant that all the data provided by you is accurate;

(ii) our cookie policy, found here, which sets out information about the cookies used on our site; and

(iii) our acceptable use policy, found here, which sets out your permitted use of our site. You must comply with our acceptable use policy when using our site.

 

• Headings do not affect the interpretation of these terms.

 

2.             Basis of sale

 

2.1        Balcas Energy Terms & Conditions and the Order are considered by Balcas to set out the whole agreement between the Customer and Balcas for the sale of the Goods (including any instalment or delivery of the Goods or parts of them). The Customer must ensure that it reads and understands these Terms before submitting an Order, as the Customer will be bound by the Terms once a contract comes into existence in accordance with clause 2.5.

2.2        If any of these Terms are inconsistent with any term of the Order (save as to price, as provided to in clause 2.8), the details contained on the Order shall prevail.

2.3        The Order is an offer by the Customer to enter into a binding contract, which Balcas is free to accept or decline at its absolute discretion.

2.4        These Terms shall become binding on the Customer and Balcas when Balcas issues the Customer with written acceptance of an Order (Order Confirmation) subject always to clause 2.8.

2.5        The Customer must ensure that the details on the Order Confirmation are complete and accurate. Balcas will only accept changes requested by the Customer to an Order Confirmation that are confirmed in writing by one or more of Balcas’ authorised employees or agents.

2.6        Unless stated otherwise and subject to the provisions of clause 2.8, our quotations are for indicative purposes only and shall not be binding on Balcas.

2.7        Balcas shall assign an order number to the Order and inform the Customer of this in the Order Confirmation.

2.8          Balcas may, by giving notice to the Customer at any time up to 2 Business Days before delivery, increase the price of the Goods to reflect any changes in the market for the Goods beyond our reasonable control between the date of Order Confirmation and the scheduled date of delivery.  In the event Balcas increase the price pursuant to this clause 2.8 and such increase is more than a 5% increase (per tonne), then the Customer shall be entitled to:

2.8.1      proceed with the Order as originally provided in the Order Confirmation but with an increase in the said price; or

2.8.2      cancel the Order by providing written notice to Balcas no later than 24 hours prior to the scheduled delivery date (at no cost to the Customer).

2.9        Delivery of the Goods will not be scheduled until after the Order has been placed. Consequently, an Order Confirmation will not usually include a proposed delivery date. The Customer will be notified subsequently of the proposed delivery date. If the proposed delivery date is not acceptable, the Customer may request an alternative date which Balcas will try to facilitate.

2.10        Should the Customer amend or cancel an Order following the  acceptance of a proposed delivery date, the Customer shall indemnify Balcas in full against all loss (including loss of profit), costs (including the costs of labour, haulage and materials used), damages, charges and expenses incurred by Balcas as a result of cancellation. The Customer’s minimum liability to Balcas in such circumstances shall be the payment of our standard cancellation charge of £150 (Cancellation Charge).

2.11      The Goods are supplied for use at the delivery location. If the Customer, its servants or agent moves the Goods on to other sites and/or to other users, Balcas will not be liable or responsible for the condition of the Goods.

2.11      Balcas may revise and amend these Terms from time to time.

3.             The Goods

 

3.1           Balcas warrants that the Goods shall:

3.1.1 conform in all material respects with the ordered specification, being European standard EN plus A1;

3.1.2 be free from material defects in design, material and workmanship; and

3.1.3 comply with all applicable statutory and regulatory requirements for selling the Goods in the United Kingdom.

3.2        This warranty does not apply to any defect in the Goods arising from fair wear and tear, wilful damage, accident, negligence by the Customer or any third party, if the Customer, its servants or agents uses the Goods for a purpose or in a manner for which they are not suited, failure to follow the instructions provided by the suppliers of the equipment with which the Goods will be used, or any unapproved alteration or repair carried out to the equipment with which the Goods will be used.

3.3        Balcas will take reasonable steps to ensure that the Customer receives the Order in good condition. However upon delivery, the Customer shall immediately inspect the Goods delivered and ensure that they correspond with the description and quantity indicated on the Order. The Customer will be deemed to have accepted the Goods if they are retained for more than seven days without notifying Balcas that they have been rejected.

3.4        These Terms shall also apply to any replacement Goods supplied in the unlikely event that the original Goods are faulty or do not otherwise conform with these Terms.

3.5        Pellet specifications are expressed in accordance with European standard EN plus A1.

3.6        The tests used to verify conformance with the specification shall be those recommended by the relevant European standards.

3.7        If the final version of a relevant European standard is not yet available, the latest draft of that standard will apply. The final version of the standard will apply when it is released.

3.8        Should the Customer wish to make a complaint regarding the Goods delivered, the consignment of the Goods as a whole must be retained or returned and no claim whatsoever shall be accepted for a portion or any part of any consignment of goods unless agreed in writing by one or more of our Balcas’ authorised employees or agents, following examination of the Goods and the carrying out of testing on a Relevant Sample (as defined in clause 3.10).

3.9        In the event of a discovered defect or damage the Customer shall provide to Balcas notice of the defect by email along with photographic evidence, clearly specifying the nature of the defect or damage no later than 24 hours after the goods were delivered, unless the defect or damage was not capable of being identified on first inspection, in which event notice of the defect or damage shall be provided no later than one week after delivery.

3.10      A Relevant Sample is a sample taken by one or more of Balcas’ authorised employees or agents:

1. a) from pellets from the same source and of the same specification as the pellets delivered to the Customer;
2. b) as close in time to the delivery as practical; and
3. c) at the site where the delivery vehicle for the delivery was loaded.

4.             Delivery

 

4.1        Delivery of the Order shall be completed when the Goods reach the agreed delivery point.

4.2        Any dates quoted for delivery are approximate only and Balcas shall not be liable for any delay in delivery howsoever caused. Time for delivery shall not be of the essence unless previously agreed in writing by one or more of  Balcas’ authorised employees or agents.

4.3        Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by Balcas to deliver any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more of the instalments shall not entitle the Customer to treat the Order as wholly repudiated.

4.5        The Customer is responsible for ensuring that Balcas is able to deliver the Goods on arrival at the delivery site, where it must ensure that there is safe access for Balcas and that the delivery vehicle can avail of a suitable parking space adjacent to the Customer’s store. If Balcas, its servants or agents are unable to park in a location suitable for delivery, it reserves the right to abandon the delivery. The cost of this delivery/transport shall be borne by the Customer.

4.6        Upon the occurrence of the circumstances specified in clause 4.5, or should the Customer fail to take delivery of the Goods for any reason, without prejudice to any other right or remedy available to Balcas it may:

1. a) store the Goods until actual delivery can be arranged and charge the Customer for the reasonable costs (including insurance) of storage; or
2. b) sell the Goods at the best price readily obtainable and after deducting all reasonable expenses, account to the Customer for the excess over the price under the Order, or charge the Customer for any shortfall below the price under the Order.

4.7        In the event that Balcas cannot deliver the Goods safely and conveniently the Customer will be liable to pay the Delivery Charge regardless if Balcas were able to deliver the Goods. The delivery charge is calculated according to Balcas’ standard pricing – details of which will be set out on the quote (Delivery Charge). Balcas will be under no obligation to attempt a further delivery. The onus will be on the Customer to request a further delivery, which Balcas will be under no obligation to accept. If Balcas accepts a request for a further delivery, the Customer will be liable to pay the full cost of this (including Delivery Charge) as well as the Delivery Charge for the original delivery.

4.8        It is the Customer’s responsibility to order the correct quantity of the Goods.

4.9        If the Customer cancels or reschedules the delivery within 2 working days of the delivery, the Customer will be liable for Balcas’ Cancellation Charge (as set out in clause 2.9).

4.10      The Customer must specify any special requirements when requesting a quote. However, Balcas does not guarantee to meet any special requirements.

4.11      Balcas will not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.12         For bulk deliveries:

4.12.1 The installation as a minimum must comply with the recommendations of the latest UKPC design guide for storage of wood pellets. A copy of this is available to download on the UKPC website.

4.12.2 If pellets are left in the delivery pipe when Balcas is unable to blow any more into the Customer’s store, Balcas will have to clear the pellets from the pipe, onto the ground where the pipes lay.  In the event that the Customer does not provide a more suitable receptacle for the pellets to go into, it will be the Customer’s responsibility to dispose of these pellets at its own expense.

4.12.3 The quantity deemed to have been delivered will be the quantity recorded by the weighing system on the delivery vehicle, to within a margin of error of 20kg. Balcas will endeavour to keep the weighing system on the delivery vehicle in good condition and calibrated according to the manufacturer’s instructions.

4.12.4 Deliveries are made in trucks equipped with Legal-for-Trade weigh loaders and the Customer will be invoiced for and pay for the weight delivered.

4.12.5 If the Customer chooses to pay for what it takes and takes a different quantity than specified in the Order, Balcas will charge the Customer the agreed price per tonne for the quantity delivered (as measured by the weigh loader on the truck), plus the Delivery Charge and any other extras in the agreed price.

4.12.6 If the Customer chooses to pay for what it orders and orders more than it can take, so that Balcas cannot deliver the full amount specified in the Order, or if Balcas are not able to complete a delivery for reasons that Balcas could reasonably expect the Customer to have anticipated, the Customer will be liable to pay for the ordered quantity at the quoted price as specified in the Order.

4.13         ENplus blown deliveries will be made:

1. a) from an ENplus-accredited operating centre;
2. b) with an ENplus-accredited truck;
3. c) operated by a qualified driver;
4. d) supplying Goods produced by an ENplus-accredited producer;
5. e) according to the requirements of the ENplus handbook (so far as that it is within our control).

4.14      Some aspects of an ENplus delivery depend on the cooperation of the Customer. If the Customer does not cooperate as required, the delivery will not be an ENplus delivery. The ENplus requirements include the following:

1. a) The Customer’s store must be designed according to the UK Pellet Council’s recommended Storage Guide,
2. b) The pressure must be able to release adequately from the pellet store during delivery. Passive venting requires outlets with a combined cross-sectional area of at least 100 dm2, with clean socks of at least 2 m2 surface area to collect the dust from each outlet. Active venting requires a 240V AC socket close to the outlet flange, which should be equipped with a Storz 110A connector. The socket must be powered at the time of the delivery and the driver must be able to access it.
3. c) The driver must be able to inspect (a) the route of the inlet and outlet pipes, and (b) the level of pellets in the store. Viewing ports are unlikely to be adequate to inspect the fuel level, because they are likely to be obscured with dust or pellets. The store should be equipped with an access hatch that can be opened safely and easily even when the store is full. A suitable design is shown in the UK Pellet Council’s recommended Storage Guide. The fuel level may also be assessed by a suitable level sensor. This will save time and avoid risks from opening the store, but it does not avoid the need for a conformant access hatch.

4.15         For deliveries of bagged pellets:

4.15.1 Pallets will be delivered to kerbside.

4.15.2 The Customer must provide its own means of moving the bags from kerbside to where they will be stored.

4.15.3 The parking space for the vehicle and set-down spot for the pallet(s) must be on no more than a gentle gradient, with no significant obstacles between the parking space and the set-down spot that might prevent the haulier from offloading the pallet(s).

4.15.4 The Customer will be delivered the number of pallets ordered (possibly in multiple deliveries). The acceptable margin of error on the weight of pellets on each pallet will be ±5 per cent.

5.             Defective goods and returns

 

5.1        It is the Customer’s responsibility to ensure that the Goods are suitable for their intended use. Balcas warrants only the quality of the Goods and their delivery, and not their suitability for the Customer’s application.

5.2        In the unlikely event that the Customer suspects that the Goods or the manner of delivery do not conform with these Terms,  Balcas should be contacted to arrange for testing of a Relevant Sample in accordance with clause 3.10. If, following the testing of a Relevant Sample it is demonstrated that the Goods or the manner of delivery do not conform with these Terms, Balcas will:

5.2.1 remove the Goods at its own expense and provide the Customer with a full refund for the value of the Goods that have been removed; or

5.2.2 replace the Goods at its own expense.

5.3        It will be the Customer’s responsibility and at the Customer’s expense to provide convenient access to inspect and (if necessary) remove the Goods in the fuel store. Access should not be difficult if the fuel store is designed, as it should be, in accordance with the UK Pellet Council’s recommended Storage Guide. The pellet removal truck should be able to park so that the route for the flexible pipes from the back of the truck to the access hatch into the fuel store is no more than 15 metres long.

5.4        The Customer may request that a representative of Balcas attends their site. This will be at Balcas’ cost if the Goods do not conform with these Terms. Otherwise, the Customer will be liable to Balcas for the cost of its time, travel and reasonable expenses incurred in the process of attending the site.

5.5        As it is impossible for Balcas to verify that a sample of pellets taken from the Customer’s store is representative of the Goods supplied and that their condition is a consequence of Balcas’ services rather than the Customer’s installation and operation, Balcas will not accept any assessment of any sample other than a Relevant Sample as described above (Clause 3.10). The Customer will have recourse only if it can demonstrate that the Goods or the manner of delivery do not conform with these Terms, according to the methods specified in these Terms.

5.6        Fines build up on the floor of the fuel store, and on the surface of the pellets, due to segregation of different particle sizes. The Customer should not judge the fines content of the Goods according to the fines observed as the Goods are running down in the store. This is a known and predictable phenomenon of Bulk Solids Handling. Balcas will not accept responsibility for any such concentrations and will charge for costs associated with responding to issues that are traced back to this phenomenon. To minimise problems from the build-up of fines, the Customer should have its fuel store cleaned at least once per year and more often in the case of multiple deliveries.

5.7        These Terms will apply to any replacement Goods supplied.

6.             Title and risk

 

6.1        The Goods will be the Customer’s responsibility from the time of delivery.

6.2        Notwithstanding delivery and the passing of risk in the Goods, title to the Goods shall not pass to the Customer until Balcas has received payment in full, in cash or cleared funds, for the price of the Goods.

6.3        Until such time as the title passes to the Customer, it shall hold the Goods as the fiduciary agent and bailee of Balcas, and shall keep the Goods separate from other goods held. The Customer shall keep the Goods properly stored, protected and insured and identified as the property of Balcas. Until such time as payment is received in accordance with clause 6.2, the Customer shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to Balcas for the proceeds of sale or otherwise of the Goods and shall keep all such proceeds separate from any monies or property belonging to it or any third party.

6.4        Until such time as title to the Goods passes to the Customer in accordance with clause 6.2, Balcas shall be entitled at any time to require delivery up of the Goods to it.  If the Customer fails to do so forthwith, Balcas shall be permitted to enter upon any premises of the Customer or any third party where the Goods are stored (or reasonably believed to be stored) and repossess the Goods.

6.5        The Customer  shall not be entitled to pledge or in any way charge by way of security for any indebtedness, any of the Goods which remain the property of Balcas  but if  it does all monies owing to Balcas shall, without prejudice to any other of our rights or remedies, forthwith become due and payable.

6.6        Risk of damage to or loss of the Goods shall pass to the Customer upon the Goods reaching the agreed delivery point, or where the Goods are to be collected at Balcas’ premises, at the time the Customer is notified that the Goods are available for collection.

7.             Price and payment

 

7.1        The price of the Goods will be as set out in the quotation Balcas provides to the Customer or, if it has not provided a quotation or the quotation has expired, in its pricing structure in force at the time it confirms the Order subject always to the provisions of clause 2.8.

7.2        These prices exclude VAT. By default, VAT will be applied at the appropriate rate for the use of the Goods as a heating fuel. The Customer must notify Balcas if it intends to use the Goods for other purposes. If the rate of VAT changes between the date of the Order and the date of delivery, Balcas will adjust the VAT paid, unless the Goods have been paid for in full before the change in the rate of VAT takes effect.

7.3        It is always possible that some of the Goods sold by Balcas may be incorrectly priced.  Balcas endeavours to check prices as part of its dispatch procedures so that, where the Goods’ correct price is less than the stated price, Balcas will charge the lower amount when dispatching the Goods to the Customer. If the Goods’ correct price is higher than the price stated in our quote, Balcas will normally either contact the Customer for instructions before dispatching the Goods, or reject the Order and inform the Customer. If the pricing error is obvious, and could have reasonably been recognised by the Customer as mis-pricing, Balcas is not obliged to provide the Goods at the incorrect (lower) price. For the avoidance of doubt this clause 7.3 relates to errors in pricing only and is without prejudice to the provisions of clause 2.8.

7.4        If the Customer has an active credit account with Balcas with sufficient balance for an Order, Balcas may invoice for the Goods on or at any time after delivery to the Customer. The invoice will quote the Order number. The Customer must pay the invoice in cleared monies within 30 calendar days of the date of the invoice by cheque, bank transfer, debit or credit card. Balcas accepts payment with Visa or Mastercard.

7.5        In the event that the Customer does not have an active credit account with Balcas with sufficient balance for an Order, payment for all Goods must be made in advance by credit or debit card.

7.6        If the Customer does not make any payment due to Balcas by the due date for payment (as set out in clauses 7.4 and 7.5), Balcas may charge interest on the overdue amount at the rate of 4% per annum above the base lending rate of Barclays Bank from time to time.  Interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. The Customer must pay interest together with the overdue amount.

7.7        Without limiting any other remedies or rights Balcas may have, in the event that payment is not made on time, it may cancel or suspend any other outstanding Order until the Customer has paid the outstanding amounts.

7.8        Clauses 7.6 and 7.7 shall not apply for the period of the dispute, if the Customer disputes the payment owing in good faith and informs Balcas promptly after receipt of the invoice that it is disputed.

7.9        When the Customer places an Order, Balcas  will send a Confirmation Note setting out the details the Customer has provided, including the Order Number (if any). The Order will be processed when the Customer confirms that the details in the Order Confirmation are correct. The Customer cannot in good faith dispute details on our invoice that match the details on an Order Confirmation that has been confirmed.

8.             Warranties and limitation of liability

 

8.1        Save as provided in these Terms, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Nothing in these Terms shall exclude any person’s statutory rights to the extent that they cannot legally be waived or excluded.

8.2        If we, Balcas fail to deliver the Goods for any reason other than at the Customer’s fault or any cause beyond the reasonable control of Balcas, and it is accordingly liable to the Customer, Balcas’ liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered, over the price of the Goods.

8.3        Where Balcas accepts the return of the Goods, it shall be entitled to offer replacement goods or, if such replacement goods are not available, to provide credit to the Customer for the Goods.

8.4        In no circumstances should Balcas’ liability (in contract, tort or otherwise) to  the Customer, arising out of, or in connection with the contract or the Goods supplied, exceed the invoice price of the Goods in respect of which a complaint has been made.

8.5        Except in respect of death or personal injury resulting from Balcas’ negligence, Balcas shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under the express terms of these Terms, for any consequential or indirect economic loss or damage arising out of or in connection with the supply of the Goods or their use or resale by the Customer.

 

9.           Force Majeure

 

9.1        For the purposes of this contract ‘Force Majeure Event’ means an event beyond the reasonable control of Balcas including but not limited to an act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, orders, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes, difficulties in obtaining raw materials, labour, fuel, parts or machinery, or power failure or breakdown in machinery.

9.2        Balcas shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this contract as a result of a Force Majeure Event.

 

10.           Assignment

 

The Customer may not transfer any of its rights or obligations under these Terms to another person or third party without the prior written consent of Balcas, which shall not be unreasonably withheld. Balcas can transfer all or any of its rights and obligations under these Terms to another organisation, but this shall not affect the Customer’s rights under these Terms.

11.           Notices

 

All notices sent by the Customer to Balcas must be sent to Balcas, Killadeas Road, Enniskillen, BT94 2FN or by email to energy@balcas.com . Balcas may give notice to the Customer at either the e-mail or postal address provided in the Order. Notice will be deemed received and properly served 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that the e-mail was sent to the specified e-mail address of the addressee.

12.           General

 

12.1      If any court or competent authority decides that any of the provisions of these Terms are invalid, unlawful or unenforceable to any extent, the term will, to that extent only, be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.

12.2      If Balcas fails, at any time while these Terms are in force, to insist that the Customer performs any of its obligations under these Terms, or if it does not exercise any of its rights or remedies under these Terms, that will not mean that it has waived such rights or remedies and will not mean that the Customer does not have to comply with those obligations. If Balcas does waive a default by the Customer, it does not mean that it will automatically waive any subsequent default by the Customer. No waiver by Balcas of any of these Terms shall be effective unless expressly stated that it is a waiver and one or more of Balcas’ authorised employees or agents confirms this in writing.

12.3      A person who is not party to these Terms shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.

12.4      In the event of a dispute between Balcas and a business Customer, each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter.

12.5      Balcas does, however, in the event of a dispute with a Customer who is deemed to be a consumer, irrevocably submit to the court to which the Customer submits a claim in the event of a dispute arising out of or in connection with this agreement or its subject matter, provided that the Customer does not submit such a claim outside of the United Kingdom.