ELITE PRECAST CONCRETE LIMITED
TERMS AND CONDITIONS OF SALE
Effective from December 2007
(i) All contracts for the supply of goods and/or services between Elite Precast Concrete Limited (“the Company”) and yourself (“the Customer”) are subject to the following terms and conditions (“the contract”) which shall apply to the exclusion of any terms or conditions whatsoever whether express, implied by law or otherwise including but not limited to the terms of specification in whole or in part. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
(ii) No amendment or variation of any of these terms and conditions shall be valid unless expressly agreed in writing by a duly authorised representative of the Company.
(iii) Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not confirmed.
(i) Each order or acceptance of a quotation for goods and/or services by you from the Company shall be deemed to be an offer by you to purchase goods and/or services subject to these conditions.
(ii) No quotation shall constitute an offer or tender but shall be deemed to be an invitation to treat.
(iii) Any quotation is given on the basis that no contract shall come into existence until the Company despatches an acknowledgement of order to you. Subject to clause 4(ii) any quotation is valid for a period of 60 days only from its date, provided that the Company has not previously withdrawn it.
(iv) You shall ensure that the terms of its order and any applicable specification are complete and accurate.
Your written confirmation order is required prior to the date of delivery or this acknowledgement is deemed to be correct. A contract for the supply of goods or services is constituted by the despatch by the Company of its written acknowledgment of order, and the date of the contract shall be the date of the said written acknowledgement order. It is preferable for manhole orders to be accepted with completed schedules.
(i) Unless otherwise specified in the quotation, all prices quoted are exclusive of value added tax, excise duties and import duties where applicable, and all costs or charges in relation to unloading and insurance, all of which the Customer shall pay in addition when it is due to pay for the goods or services.
(ii) Notwithstanding clause 2
(iii) the Company reserves the right in its absolute and unfettered discretion to vary the price from that quoted in the event of any variation in the cost of materials, labour, services, interest rates, transport and statutory charges between the date of contract and the date of despatch.
5. TECHNICAL DRAWINGS ETC.
(i) All technical drawings, catalogues or manuals produced by the Company and submitted to the Customer in connection with the supply of goods or services between the company and the Customer, either prior to the formation of a contract or to the goods being delivered to the Customer shall (without prejudice to the provisions of Clause 16) be strictly adhered to by the Customer.
(ii) All quotations, drawings or technical documents submitted to the Customer prior to or subsequent to the formation of a contract remain the exclusive property of the Company and are returnable to the Company on request. They may not be used by the Customer or copied, reproduced, transmitted in any form or any means including photocopying or communicated to a third party except with the prior written consent of the Company given by a duly authorised representative of the Company.
6. LICENCES AND PERMITS
If the performance of any contract requires a licence or other permit of any government or authority to be granted to the Company, the Customer shall be responsible for obtaining the same and the contract shall be conditional upon such licence or permit being available at the relevant time and if it is not so available the Company shall be entitled to cancel the contract by giving the Customer written notice to that effect. Should any such licence or permit not be available at the relevant time, the Customer shall be liable for any costs or expenses incurred by the Company in the performance of the contract as a result of such delay or, where the contract is cancelled, up to the date of its cancellation.
(i) Unless otherwise agreed in writing between a duly authorised representative of the Company and the Customer, payment for any goods shall be made by the Customer to the Company in pounds sterling within 30 days of the end of the month in which an invoice is delivered or deemed to be delivered.
(ii) Time for payment shall be of the essence.
(iii) No payment shall be deemed to have been received until the Company has received cleared funds.
(iv) All payments payable to the Company under the contract shall become due immediately on its termination despite any other provision.
(v) The Customer shall make all payments due under the contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
(vi) The Company reserves the right to charge the Customer interest upon any overdue payment or part thereof at the rate of 4% per annum above the base rate of The Bank of England from time to time in force until the date of actual payment.
(i) Although the Company will endeavour to meet any date or time quoted or given for delivery of the goods, such date or time is an approximate estimate only. In respect of delivery time it shall not be of the essence.
(ii) Subject to the other provisions of these conditions, the Company shall not be liable for any direct, indirect or consequential lost (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss) costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods (even if caused by the Company’s negligence), nor shall any delay entitle the Customer to terminate or rescind the contract unless such delay exceeds 180 days.
(iii) The Company reserves the right to despatch and invoice any part of an order when available.
(iv) Where the goods are to be delivered by instalments each delivery shall constitute a separate contract and any failure by the Company to delivery or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the contract as a whole as repudiated.
(v) The Customer shall provide at its expense adequate and appropriate equipment and manual labour for unloading the goods.
(vi) Upon receipt of the goods the Customer, his employee or agent shall sign a delivery note provided by the Company. Such delivery note shall be confirmation by the Customer to the Company that the goods have been visually inspected and found to be satisfactory.
(vii) Pallets are charged at the current list price which is invoiced at the time of delivery and is credited on the return of the undamaged pallets within three months of delivery. The return of pallets is the responsibility of the Customer. No credit will be given for the return of undamaged pallets unless the Customer is able to produce a clear signature by one of the Company’s drivers or employees on the Company’s stationery acknowledging receipt of the return of the undamaged pallet.
When the Company delivers goods to the Customer, the Customer shall unload the goods within a period of one hour from the arrival of the goods at the Customer’s site or place of business. In the event of the Customer failing to do this, the Customer shall pay any additional costs incurred by the Company.
10. DAMAGE OR LOSS IN TRANSIT
(i) The quantity of any consignment of goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
(ii) The Company shall not be liable in respect of any loss or damage whatsoever arising in transit or from non-delivery of goods howsoever caused unless notice in writing of the same is given to the Company within the period specified in the contract of carriage between the Company and any carrier or within one working day of the date when the goods were received or would in the ordinary course of events have been received.
(iii) Any liability of the Company for non-delivery of the goods shall be limited either (at the Company’s sole discretion) 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, or payment to the Customer of any sums received pursuant to any contract of insurance provided by the carrier.
(i) If the Customer fails to take delivery of the goods within 7 days of the date of notification that the goods are ready for collection or the Company is unable to deliver the goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations, if forwarding instructions are not received within 7 days after the date of notification that the goods are ready for despatch, the Customer shall arrange for storage. If the Company agrees to store the goods then
(a) risk in the goods shall pass to the Customer (including for loss or damage caused by the Company’s negligence);
(b) the goods shall be deemed to have been delivered; and
(c) the Company may store the goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Unless otherwise agreed in writing the moment when the risk in the good shall pass shall be determined as follows:-
(i) On a “sale delivered” the risk shall pass from the Company to the Customer when the goods are despatched by the Company.
(ii) On a sale “ex- works” the risk shall pass from the Company to the Customer when the goods have been placed at the disposal of the Customer; and
(iii) Where the Company has quoted for any installation and/or fabrication of the goods the on site risk in the goods shall pass from the Company to the Customer on delivery of the goods to site.
(i) Notwithstanding delivery and passing of the risk in the goods supplied by the Company to the Customer pursuant to clause 12 hereof the property and title in the goods shall not pass to the Customer and shall remain with the Company until the Company shall have received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by the Company to the Customer for which payment is then due.
(ii) Until the property and title in the goods passes to the Customer pursuant to the provisions of sub-paragraph (i) hereof the Customer shall keep the goods as bailee of the Company and in this connection shall set aside the goods separately from other goods in the Customer’s possession and ensure that the goods are carefully stored and remain identified as the property of the Company.
(iii) If at any time before the property and title in the goods passes to the Customer pursuant to the provisions of this clause 13, the Customer sells the goods or any part thereof he shall do so as bailee and shall account to the Company as agent of the Company for the proceeds of sale thereof.
(iv) The Company shall be at liberty at any time before the property and title in the goods passes to the Customer pursuant to the provisions of sub-paragraph (ii)hereof to require the goods to be returned to it and if the requirement is not immediately complied with by the Customer the Company may re-take possession thereof and may enter any premises or sites of the Customer or any other premises or sites where the goods may be for such purpose. Such return or repossession shall be without prejudice to the rights of the Company to recover all sums owing by the Customer to the Company and to the Company’s rights to claim damages against the Customer for the breach of any obligations on the part of the Customer arising under the contract. Any expenses incurred in such return and re-possession of the goods or any damage caused to any land and/or site by the Company in exercise of its powers hereunder shall be borne by the Customer.
(v) Until ownership of goods passes to the Customer the Company or any person nominated by it shall be entitled to enter on to the Customer’s site from time to time for the purpose of:-
(a) Ensuring that the Customer has complied with the provisions of sub-paragraph (ii) hereof; and
(b) Inspecting all books, accounts, records, documents and papers of the Customer for the purpose of determining sums due to the Company by virtue of the provisions of sub-paragraph (iii) hereof.
14. TRADEMARKS, WARRANTIES AND COLOUR
(i) The Company shall be entitled to write or affix its imprint on the materials in the usual manner. Where the Company’s patents, registered trademarks or copyright features are included in the design an imprint to that effect may be affixed.
(ii) Save as expressly incorporated into the Contract by a quotation or by a tender, no specification, illustration, drawing, brochure, catalogue or other information sent or made available by the Company to the Customer or any term or representation made by any servant or agent of the Company shall have any contractual effect.
(iii) No guarantee or warranty is given that these goods are designed or suitable for the purpose of which they may be intended.
(iv) Samples are only submitted as indicative of the product quoted for without any guarantee as to the colour or quality of the bulk. All quotations are made on the basis that sales are by description and not by sample, unless otherwise agreed specifically by the Company in writing.
(v) Materials are supplied subject to natural formation characteristics, colour and marking variations.
(i) The Company warrants that (subject to the other provisions of these conditions) that upon delivery the goods shall be of satisfactory workmanship and materials and goods of their respective kind generally in accordance with the relevant British Standard.
(ii) The Company shall not be liable for a breach of the warranty in sup-paragraph (i) hereof unless:
(a) the Customer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit by the carrier, within 7 days of the time when the Customer discovers or ought to have discovered the defect and in any event not later than 28 days from the date of delivery; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such goods and the Customer (if asked to do so by the Company) returns such goods to the Company’s place of business at the Company’scost for the examination to take place there.
(iii) The Company shall not be liable for a breach of the warranty in clause 15(i) if:
(a) the Customer makes any further use of such goods after giving such notice; or
(b) the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, handling, use or maintenance of the goods or (if there are none) good trade practice; or
(c) the Customer alters or repairs such goods without the written consent of the Company.
(iv) Subject to sub-paragraph (ii) and sub-paragraph (iii), if any of the goods do not conform with the warranty in sub-paragraph (i) hereof the Company shall at its option repair or replace such goods (or the defective part) or refund the price of such goods at the pro rata Contract rate provided that, if the Company so requests, the Customer shall, at the Company’s expense, return the goods or the part of such goods which is defective to the Company.
(v) If the Company complies with sub-paragraph (iv) hereof it shall have no further liability for a breach of the warranty in sub-paragraph (i) hereof in respect of such goods.
(vi) Any goods replaced shall belong to the Company.
16. LIMITATION OF LIABILITY
(i) The Customer must always rely on its own skill and judgement and recognise good civil engineering practice in relation to the goods and shall satisfy himself that goods specified are suitable for the Customer’s intended purpose.
(ii) Subject to clauses 8, 10 and 15 the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Customer of any of the goods, or of any product incorporating any of the goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the contract.
(iii) All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the contract.
(iv) Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
(v) Subject to sub-paragraphs (iii) and (iv) hereof:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the contract shall be limited to the contract price; and
(b) the Company shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the contract.
(vi) The Company may assign the contract or any part of it to any person, firm or company.
It shall be the responsibility of the Customer to assume and to cover by insurance, if he so wishes, the risks which fall on the Customer through the operation of this clause or any other part of the contract.
(i) Orders placed by the Customer cannot be cancelled in whole or in part except with the Company’s consent in writing and on the terms that the Customer shall pay for the goods in full unless the Company agrees otherwise in which event the Customer shall be liable for all costs, expenses and losses of any kind suffered or incurred by the Company resulting directly or indirectly from such cancellation.
(ii) Where the Company agrees to goods being returned following a cancellation it shall be the responsibility of the Customer, at its own expense, to return all such goods at such time as may be agreed to the Company’s works or such other place as the Company may specify in good condition. If the goods are not so returned the Customer shall be liable for the full cost thereof. Risk in any goods returned shall not revert to the Company until a receipt of the cancelled goods is signed by a duly authorised representative of the Company.
In the event of the performance of any obligation accepted by the Company being prevented, delayed or in any way interfered with for any cause and/or reason whatsoever beyond the control of the Company including but not limited to:
(i) Rules, regulations, requisitions or orders of the Government, Local Authority or any other Statutory Authority, war, riot, civil disturbance, strike, industrial action short of a strike, lockout, accident, breakdown, fire or by any other cause beyond its control.
(ii) Shortage of labour or materials or non-delivery by the Company’s suppliers or damage to or destruction of the whole or part of the goods.
(iii) Any failure by the Customer to comply with any of the terms and conditions hereof.
(iv) Any request or instruction by any third party, his servant or agent with whom the Customer is in contract with for the installation and testing of the goods; or
(v) Any request or instruction of the Customer, his servants or agents.
The Company may at its option suspend performance or cancel its obligations under the contract without liability for any damage or loss of any kind whatsoever resulting therefrom such suspension or cancellation being without prejudice to the Company’s rights to recover all sums owing to it in respect of goods delivered at the date thereof including but not limited to loss of profit and interest.
19. DEFAULT OF CUSTOMER
Should default be made by the Customer in complying with the contract, the Company at its option shall be entitled to suspend delivery until the default is made good or treat such default as a repudiation of the contract in which case the Customer shall (without prejudice to any right which the Company may have for the return of any goods or the payment of any compensation or damages by the Customer) pay the Company’s reasonable charges for any costs or expenses incurred by the Company in the performance of the contract.
(i) The Company shall have the right to terminate this contract forthwith on the occurrence of any of the following events:-
(a) The issue of a petition to wind up or for an administration order in relation the Customer.
(b) The appointment of a receiver in relation to any property or asset of the Customer.
(c) The appointment of an administrative receiver over the customer or its undertaking.
(d) The Customer ceasing to trade or becoming insolvent or the passing of a resolution for the voluntary winding up of the Customer; or
(e) The issue of a petition for bankruptcy order or if the Customer shall make or offer to make any arrangement or composition with its creditors or if a statutory demand is served under the Insolvency Act 1986 or any statutory modification or re-enactment thereof or if a Trustee is appointed in relation to the Customer or if any distress or execution shall be levied upon the property or assets of the Customer or on the dishonour of any cheque or negotiable instrument drawn by the Customer.
(ii) If this Clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the Customer, and if any goods have been delivered under any contract between the Company and the Customer but not paid for, the price shall immediately become due and payable notwithstanding any previous agreement or arrangements to the contrary.
(i) No relaxation, forbearance, delay or indulgence by the Company in enforcing any of the terms and conditions of any contract shall prejudice the Company’s rights to insist upon the strict compliance therewith nor shall the same constitute a waiver or an estoppel.
22. GOVERNING LAW
(i) These terms and conditions of supply and any contract between the Company and the Customer are governed by and are to be construed in accordance with the Laws of England and Wales to the exclusive jurisdiction of whose Courts the Customer agrees to submit.
(ii) Unless this contract expressly provides otherwise, a person who is not a party to this contract has no right to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 (the “Act”), and if a person who is not a party to this Agreement is stated to have the right to enforce any of its terms under the Act, the parties may rescind or vary this contract (and any documents entered into pursuant to or in connection with it) without the consent of that person.