Terms & Conditions
STANDARD CONDITIONS OF SALE
1. Definitions and Interpretation
1.1 In these Conditions the following words have the following meaning:
“Company” means Borough Green Sand Pits Ltd (Registered No. 559854) whose registered office is at Swatton Barn, Badbury, Swindon, Wiltshire, SN04 0EU;
“Contract” means any contract between the Company and the Customer for the sale of Goods and/or the supply of Services, incorporating these Conditions;
“Customer” means the person(s), firm or company who purchases the Goods and/or Services from the Company;
“Goods” means any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts
of them and pallets, where applicable);
“Services” means any services agreed in the Contract to be supplied to the Customer by the Company;
“Group Company” means any subsidiary or holding company of the Company and the ultimate holding company of the Company and any subsidiary of any of them (in each case from time to time) (and the terms “Subsidiary” and “Holding Company” shall have the meanings given to them by Section 1159 of the Companies Act 2006);
“Price” means the amount payable by the Customer to the Company pursuant to the Contract in respect of the supply of Goods and/or Services;
“Site” means the Company’s web site.
2. Basis of Contract
2.1 Subject to any variation in accordance with Condition
2.3, the Contract will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).
2.2 Each order for Goods and/or Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Conditions. It is the Customer’s obligation to ensure that the terms of its order and any applicable specifications are complete and accurate.
2.3 Subject to Condition 2.10, any amendment or variation to these Conditions shall have no effect unless expressly agreed in writing and executed by a director of the Company.
2.4 The Customer acknowledges that it has not relied on any statement, promise or representation in relation to the Goods and/or Services made or given by or on behalf of the Company either before or after the date of the Contract which is not set out in the Contract.
2.5 No order placed by the Customer shall be deemed to be accepted by the Company until a written quote is issued by the Company or (if earlier) the Company commences: (i) manufacture or mixing of the Goods, their appropriation to the Customer’s order or despatch of the Goods to the Customer; and/or (ii) provision of the Services. Any order shall be accepted entirely at the discretion of the Company.
2.6 Any quotation or estimate made by the Company is given subject to these Conditions. Without prejudice to the Company’s right not to accept an order, quotations will be valid for 45 days from date of issue.
2.7 All Goods and/or Services are sold by reference to the Company’s specification for those Goods in force at the date of the Company’s acknowledgement of order.
2.8 The Customer can only cancel an order (or any part of an order) which the Company has already accepted, with the Company’s prior agreement in writing and provided that the Customer indemnifies the Company in full in accordance with Condition 8.1.
2.9 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the strengths or use of the Goods and/or Services by the Company is followed or acted upon entirely at the Customer’s own risk, and such advice and/or recommendation should not be relied upon unless evidenced in writing and signed by a director of the Company.
2.10 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.11 The description of the Goods and/or Services shall be set out in the Company’s acknowledgement of order or, in its absence, the Company’s quotation.
2.12 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions, details or illustrations contained in the Company’s catalogues or brochures or the Site are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them and they will not form part of the Contract unless otherwise agreed in writing.
3. Delivery, Risk & Title
3.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place in normal working hours. If for any reason the Customer fails to take delivery of the Goods on the due date, re- delivery will take place at the Customer’s cost on an alternative working day at the Company’s convenience unless notified in writing when the Company will agree on a mutually convenient working day. If the Customer fails to take delivery of the Goods on the re-arranged delivery date:
(a) delivery will be deemed to have taken place on the second due date for delivery; (b) risk in the Goods will pass to the Customer;
(c) the Company may, (without prejudice to any of its other rights) dispose of the Goods at the best price reasonably obtainable or arrange for their storage at the Company’s premises or elsewhere; and
(d) the Customer will indemnify the Company in respect of any shortfall between the Price and the price actually obtained for the Goods if sold and any loss or expense incurred by the Company including storage and insurance charges arising from such failure.
3.2 Any delivery times quoted by the Company are approximate only and shall not be of the essence of the Contract. The Company shall not be liable for any loss or damage resulting from a delay in delivery to the Customer
3.3 The Goods shall be inspected by the Customer on delivery or on collection, as the case may be, to ensure as far as practically possible that the Goods delivered are the Goods ordered and the Customer will ensure that an authorised person signs the delivery docket in confirmation of this.
3.4 The Customer will provide and clearly indicate to the driver of the delivery vehicle a safe route from the public highway to the point of discharge and shall indemnify the Company (both for itself and as agent and trustee for any other person operating any vehicle making a delivery) against any damage or loss resulting from any failure to do so. If any delivery vehicle is kept on site for longer than 20 minutes or is unable to effect delivery due to an act or omission on the part of the Customer, the Company reserves the right to charge the Customer for any additional costs incurred as a result.
3.5 The Company reserves the right to deliver and invoice the Goods and/or provide the Services in instalments and in such event each instalment shall be treated as a separate contract and delivery of further instalments may be withheld until the Goods and/or Services comprised in earlier instalments have been paid for in full.
3.6 Subject to Condition 3.1, risk of damage to or loss of the Goods shall pass to the Customer:
(a) in the case of Goods to be collected from the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection;
(b) in the case of Goods to be delivered to the Customer’s premises, when the Company delivers such Goods to the Customer’s premises; or
(c) at the time of handing the Goods to a third party if the Customer arranges for the Goods to be collected by a third party carrier,
and the Company shall not be liable to replace any lost or damaged Goods after such point.
3.7 Subject to Condition 3.8, ownership of the Goods shall not pass to the Customer until the Company have received in cash or cleared funds payment in full of the Price and all other sums due to the Company. Until such time as ownership of the Goods passes to the Customer, the Customer shall hold the Goods as fiduciary agent and shall keep the Goods properly stored, protected, fully insured and identified.
3.8 If the Customer pays the Price to the Company in full prior to the Goods being produced/manufactured by the Company risk in the Goods shall pass pursuant to Condition 3.7 and property in the Goods shall be deemed to pass at the same time.
3.9 Until such time as property in the Goods passes to the Customer, the Company shall be entitled at any time to require the Customer to return the Goods. If the Customer fails to do so promptly, the Company shall be entitled to enter upon any of the Customer’s premises or any premises of a third party where the Goods are stored and repossess the Goods.
3.10 The manner of packing and transportation of the Goods shall be at the Company’s discretion with no charge to the Customer unless the Company specify otherwise. No liability shall be accepted for failure to pack to any particular standard or against any particular risk unless the requirement for such packing is specifically brought to the Company’s attention, accepted in writing by the Company and paid for by the Customer.
4. Variation of Goods
4.1 The Company reserves the right to make any change to the Goods and/or Services which do not in the Company’s opinion materially affect the quality of the Goods and/or Services.
5. Price and Payment
5.1 Unless otherwise agreed by the Company in writing, the Price for the Goods and/or Services and the payment terms shall be the Price and terms set out in the Company’s quotation, delivery or invoice documentation.
5.2 The Company reserves the right, by giving notice to the Customer at any time before delivery of the Goods and/or provision of the Services, to increase the Price to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including, without limitation, any increase in the costs of labour, materials or other costs of manufacture or supply), any change in the quantities of the Goods requested by the Customer or any change in the delivery dates or location of the goods requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
5.3 Unless otherwise agreed in writing, the Price for the Goods and/or Services shall be inclusive of all costs or charges in relation to loading, unloading, carriage and freight. For the avoidance of doubt, this does not affect the Company’s right to charge for any delivery-related charges as set out herein.
5.4 The Price for the Goods and/or Services shall be exclusive of value added tax and any other taxes, duties or levies and insurance all of which amounts the Customer will pay in addition when it is due to pay for the Goods.
5.5 The Company reserves the right to levy a “part load” charge, the amount to be determined by the Company, where the Customer orders less than a full load. Details of load capacities can be obtained from the Company upon request.
5.6 The Company reserves the right to make a charge for delivery of the Goods on the request of the Customer at a specific time or outside normal working hours.
5.7 Except where otherwise agreed by the Company or where the Customer is a credit holder, payment of the Price is due upon delivery of the Goods and/or provision of the Services. Time for payment shall be of the essence.
5.8 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaims, discount, abatement or otherwise.
5.9 The Company shall be entitled to apply any amount due to the Customer under this or any other agreement in or towards payment of any sum owing by the Customer to the Company in relation to any matter whatsoever.
5.10 If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and the Company shall be entitled to:
(a) cancel or suspend its performance of the Contract or any order, including suspending deliveries of the Goods and/or provision of the Services; and/or
(b) require the Customer to pay for Goods prior to their despatch or collection from the Company’s place of business; and/or
(c) charge the Customer:
(i) interest calculated on a daily basis on all overdue amounts (both before and after judgement) until actual payment at the statutory interest rate for commercial debts prevailing from time to time until payment is made in full; and
(ii) the cost of obtaining judgement or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
5.11 Any credit facility given to the Customer by the Company may be altered or withdrawn by the Company at any time.
6. Warranty of Quality of Goods
6.1 The Company warrants that the Goods supplied at the point of delivery will be in accordance with the specification set out in this Contract. Except for this express warranty, no other representation or warranty is given by the Company as to the suitability or fitness of the Goods for any particular purpose and it is incumbent on the Customer to satisfy itself that the Goods are fit for the particular purpose required by the Customer. All other warranties, conditions or undertakings concerned with the condition or quality of the goods whether express or implied by statute common law custom usage or otherwise are, to the fullest extent permitted by law, excluded from the Contract.
6.2 Subject to Conditions 6.3 and 6.4, if the Customer establishes to the Company’s reasonable satisfaction that there is a defect in the Goods or there is some other failure in relation to the conformity of the Goods with the Contract, and such non-conformity is the fault of the Company, then the Company shall at its option, at its sole discretion and within a reasonable time:
(a) subject to the reasonable co-operation of the Customer, break up and remove the defective Goods free of charge to the Customer (including the cost of transporting the Goods to and from the Customer for that purpose) and replace such Goods with Goods which are in all respects in accordance with the Contract: or
(b) issue a credit note to the Customer in respect of the whole or part of the Price of such Goods plus the reasonable costs of breaking up and removing the defective Goods.
And performance of any one of the above options shall constitute an entire discharge of the Company’s liability under this warranty.
6.3 The Company shall be under no liability under the warranty at Condition 6.2 above: (a) in respect of any defect arising from:
(i) fair wear and tear; or
(ii) the Customer’s or a third party’s wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether given orally or in writing), misuse or alterations of the Goods without the Company’s approval;
(b) if the total Price for the Goods has not been paid by the due date for payment;
(c) for any Goods were manufactured or appropriated to the Contract in accordance with any specification, instruction or recommendation made to the Company by the Customer; or
(d) in respect of any type of defect, damage or wear specifically excluded by the Company by notice in writing.
6.4 If the Customer believes that there is some defect or other non-conformance of the Goods with the Contract then the Customer shall give:
(a) written notification of such alleged defect to the Company which notice shall include details of such suspected non-conformance or defect and the precise location of the Goods as soon as such defect or non- conformance is suspected or discovered or ought to have been discovered but in any event within 3 days after delivery of the Goods or within 7 days if the weight of Goods delivered does not correspond to the weight shown on the delivery docket; and
(b) the Company a reasonable opportunity to inspect the relevant Goods and, if so requested by the Company, promptly return to the Company or such other person nominated by the Company a sample of the Goods within 3 days, carriage paid by the Customer, for inspection, examination and testing and/or otherwise permit the Company to have access to the Goods at the Customer’s premises or other location where they may be for such purposes.
7. Exclusion and Limitation of Liability
7.1 The Company’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 this Contract, shall be limited to the Price.
7.2 The Company shall not be liable to the Customer (whether in negligence or otherwise) for: (a) any indirect, consequential or special loss;. or
(b) loss of profit or revenue, loss of business, loss of opportunity, loss of contract, loss of goodwill or any other economic loss, whether or not such loss is consequential, indirect or special in nature.
7.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence, for fraud or fraudulent misrepresentation or for any matter which it would be unlawful for the Company to exclude or attempt to exclude its liability for.
8. Customer’s Indemnity
8.1 The Customer irrevocably and unconditionally agrees to indemnify the Company, its employees, sub- contractors and agents in full and on demand and keep them so indemnified against all claims, demands, actions, proceedings and all damages, losses, costs and expenses (including without limitation legal and other professional advisers’ fees and all consequential and economic loss (including without limitation loss of profit, future revenues, reputation or goodwill and anticipated savings)) whether direct or indirect made against or incurred or suffered by any of them directly or indirectly and whether wholly or in part resulting
from the matters listed below, whether or not such losses or the consequences of the matters listed below were foreseeable at the date of the Contract:
(a) the manufacture and sale of the Goods by the Company in accordance with the Customer’s specifications or other data or information furnished or instructions given by the Customer; and/or
(b) the cancellation of any order by the Customer after its acceptance by the Company in accordance with Condition 2.7; and/or
(c) any breach by the Customer of its obligations under the Contract; and/or
(d) any breach by the Company of its obligations under the Contract or any other act or omission (including, without limitation, negligence) of the Company, its employees and agents in excess of the liability of the Company under the Contract.
9. Subcontracting, Assignment and Third Party Rights
9.1 The Customer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it
without the prior written consent of the Company.
9.2 The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person or Group Company. The Customer irrevocably consents to novation of the Company’s rights and obligations to any Group Company.
9.3 A Group Company may enforce any term of the Contract. Save for the Group Companies, no person who is not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) or otherwise) to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Company and the Customer, which agreement must refer to this Condition 9.3.
9.4 Even if a person who is not a party to the Contract has a right to enforce any term of the Contract by virtue of Section 1 of the Act, the parties may, notwithstanding Section 2(1) of the Act, vary or cancel the Contract by agreement between them without requiring the consent of such third party.
10. Force Majeure
The Company reserves the right to suspend or cancel the Contract in whole or in part (without liability to the Customer) if it is prevented from or delayed in the carrying out of its business and its obligations under the Contract due to any circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, strikes, lock outs or other industrial action (whether of the Company’s own employees or others), failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services or import or export regulations or embargoes provided that, if the event of force majeure continues for a continuous period in excess of 3 months, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
11. Intellectual Property and the Site
11.1 The names, images, pictures, logos and icons identifying the Company and/or the Company’s Goods and/or Services are, unless otherwise stated, the intellectual property of the Company. Other products, pictures, images, logos and icons and Company names mentioned on the Site may belong to other companies.
11.2 All intellectual property rights in the design, content and arrangement of the Site (including the text and graphics, all software compilations or underlying source code, and all other material on the Site) are reserved by the Company and/or their technology providers.
11.3 The Customer may not use any materials contained on the Site for any purpose other than placing an order for the Goods and/or Services.
11.4 Access to the Site is on an “as is” basis and the Company gives no further warranties, express, implied or statutory including but without limitation, the implied warranties of satisfactory quality or fitness for a
particular purpose of the Site and/or the availability of the Site and the Company shall be under no liability for any downtime or malfunction of the Site.
11.5 All illustrations, dimensions, weights and capacities listed on the Site, or in any catalogue, price list or other advertisement are intended merely to present a general idea of the Goods described and shall not form part of the Contract. The Goods and/or Services described on the Site, although often a standard design, are subject to the Company policy of continuous improvement and the Company reserves the right to incorporate changes or to make substitutions.
11.6 Any typographical, clerical or other error or omission on the Site or in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
12. Breach of Contract or Insolvency
12.1 The Company may immediately suspend performance of the Contract, cancel any outstanding delivery of the Goods, stop any Goods in transit or by notice in writing to the Customer terminate the Contract without liability to the Company if:
(a) the Customer commits a material breach of any of its obligations under the Contract which is incapable of remedy, fails to remedy any breach of its obligations under the Contract which is capable of remedy within 14 days or persists in any breach of any of its obligations under the Contract after having been requested in writing by the Company to remedy or desist from such breach; or
(b) the Customer enters into bankruptcy, individual voluntary arrangement, liquidation, receivership, administration or into a corporate voluntary arrangement as defined by the Insolvency Act 1986; or
(c) any sum payable under the Contract is not paid within 7 days of its due date for payment in accordance with this Contract.
12.2 Notwithstanding any such termination or suspension in accordance with Condition 12.1 above, the Customer shall pay the Company for all Goods delivered and/or Services provided up to and including the date of suspension or termination.
12.3 Termination of the Contract for any reason shall be without prejudice to the rights and remedies of either party which may have accrued up to termination.
13.1 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of
employer and employee or principal and agent between the parties.
13.2 The waiver by either party of any breach of the Contract shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
13.3 If at any time any one or more of the Conditions or part of them or the Contract is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Contract and the validity and/or enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired as a result of that omission.
13.4 Any communication between the Customer and the Company related to the obligations of this Contract must be in writing and delivered by hand (when delivery shall be deemed to be the day of delivery) or sent by pre-paid first class post (when delivery shall be deemed to be 48 hours after posting) or sent by fax (when delivery shall be deemed to be the time of transmission provided that any normal confirmation of fax communication shall have been received), to the address, or such change of address, as shall be notified to either party by the other.
13.5 The Contract sets out the entire agreement and understanding between the Customer and the Company in connection with the sale of the Goods and/or Services and shall supersede and replace all documentation previously issued by the Company purporting to set out its terms and conditions of sale of the Goods and/or Services.
13.6 This Contract shall be governed by and be construed in all respects in accordance with English law and all disputes or claims arising out of or relating to this Contract shall be subject to the exclusive jurisdiction of the English courts to which the parties irrevocably submit.