Legal
1. DEFINITIONS
1.1 ‘BUYER’
means the corporate entity, firm or person who buys or agrees to buy the Goods from the Seller.
1.2 ‘CONDITIONS’
means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller.
1.3 ‘DELIVERY DATE’
means the date specified by the Seller when the Goods are to be delivered.
1.4 ‘GOODS’
means the products or materials which the Buyer agrees to buy from the Seller.
1.5 ‘GROUP’
means the Buyer and its subsidiary companies whether directly or indirectly owned.
1.6 ‘MANDATORY POLICIES’
shall include the Seller’s business policies and codes relating to Health and Safety, Anti-Bribery, Modern Slavery, Code of Conduct, Serious Concerns and Data Protection, as the Seller may update them from time to time, together with any other policy adopted by the Seller and communicated to the Buyer from time to time.
1.7 ‘PRICE’
means the price for the Goods, carriage, packing, excluding insurance and VAT and such other extra charges as may be quoted by the Seller or as may apply in accordance with these conditions.
1.8 ‘SELLER’
means Hardscape Group Limited (CRN: 13032345), incorporating Hardscape Products Ltd (CRN: 02986234) and IP Surfaces Limited (CRN: 04691768) whose registered office is at: Eagley House, Deakins Business Park, Egerton, Bolton BL7 9RP.
2. CONDITIONS APPLICABLE
2.1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may seek to apply under any purchase order confirmation of or similar document.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions. Any order issued by the Buyer is subject to acceptance by the Seller at the Seller’s discretion. The quotation, order and acceptance shall together form the contract governed by these Conditions, except where varied in accordance with clause 2.4.
2.3 A contract will only be formed when the Seller has accepted the Buyer’s order. For the avoidance of doubt, acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 These Conditions exclude any other terms and conditions which a Buyer might seek to impose even though such other terms and conditions may be submitted in a later document and/or purport to exclude or supersede any of these Conditions or are inconsistent with them. These Conditions and the documents referred to in these Conditions represent the entire agreement between the parties and will replace any previous agreement, discussions or understandings between them relating to the subject matter of the contract. No implied or express term not reflected within a contract shall form part of any contract between the parties. No collateral warranties have been agreed in relation to or connected with the subject matter of any contract and any discussions documentation or correspondence which might be taken to represent such matters are overtaken and replaced by the applicable contract. However, foregoing shall not act so as to limit or exclude any liability for fraud or fraudulent misrepresentation or for any other matter which the Seller is not lawfully permitted to limit or exclude liability for. No employee, agent or officer of the Seller is authorised to agree to any variation of these Conditions or to agree to the supply of Goods by the Seller otherwise than on the basis of these Conditions. Any variation to these Conditions (including any special terms and Conditions agreed between the parties) shall be inapplicable unless agreed in writing by a director or authorised employee of the Seller.
2.5 Any advice, recommendation or representation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods or otherwise which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice, recommendation or representation which is not so confirmed. These terms and conditions and any documents incorporating them or incorporated by them constituting the entire agreement and understanding between the parties.
2.6 Nothing in these Terms & Conditions shall affect the statutory rights of any Buyer dealing as a consumer.
3. CANCELLATION/SUSPENSION OF DELIVERIES
3.1 Once the contract is formed, no cancellation or return of Goods by the Buyer is permitted except where expressly agreed by the Seller in writing at the Seller’s discretion.
3.2 The Buyer will in the event of agreed cancellation or return by the Buyer pay the Seller’s standard cancellation/return charges in consideration for the Seller’s agreement to cancel the order in question or accept the return of Goods (as applicable). In addition, the Buyer shall indemnify the Seller fully against all charges costs and losses (including loss of profit) sustained by it as a result of the cancellation. The Seller’s certificate as to the amount of such loss shall be final.
3.3 The Seller may without prejudice to its other rights, suspend or cancel further deliveries and/or work under this and any other contract between the parties hereto if the Buyer shall fail to make payment of any sum on its due date for payment or if the Buyer shall become insolvent or have any form of insolvency proceedings or action (whether or not involving the intervention of a court) taken against it, including (but without limitation any receivership, petition or order for administration, winding up or bankruptcy, any proposal for or voluntary arrangement with creditors or proposal to compound with creditors, or any procedures similar to any of them under the laws of England or any other jurisdiction whatsoever). In such circumstances the Seller shall be entitled to immediate payment from the Buyer of a proportionate part of the price in respect of Goods already delivered and/or manufactured to the order of and/or purchased for and/or carried out for, the Buyer together with an amount representing anticipated further loss sustained or to be sustained due to such suspension or cancellation in each case as certified by the Seller.
3.4 The Seller may suspend or cancel any contract for the supply of Goods if at any time the price under the contract taken together with all other sums owing to members of the Group exceeds the credit limit set for the Buyer by the Seller and/or the Group, whether or not such credit limit has been communicated to the Buyer.
3.5 The Seller may without prejudice to its other rights, where the Buyer refuses, is unable or fails to take delivery of Goods by the dates specified in the contract, or the timescale set out in the Seller’s quotation, or where no date or timescale is specified within a reasonable period either:
3.5.1 put the Goods into its stock at the Buyer’s risk and expense and submit an invoice for payment as though the Goods had been delivered on the date when they were transferred to stock; or
3.5.2 sell or offer to sell the Goods or any part of them to other interested parties in which case the Seller shall be entitled to recover from the Buyer as liquidated damages the amount of gross profit foregone by the Seller on the sale to the Buyer as certified by the Seller on the basis of the price that would have applied at the date for delivery.
3.6 If any of the Goods referred to in Condition 3.5 are not sold within a period of 90 days or realise less than their full cost to the Seller (including a pro-rata proportion of fixed and variable overheads) within that time, the Seller may recover from the Buyer in addition to gross profit as liquidated damages the amount of the cost not recovered by sale as certified by the Seller. Upon payment of all sums certified as due to the Seller the Buyer shall be entitled to any Goods which have not been disposed of by sale within the period of 90 days.
4. PRICE AND PAYMENT
4.1 Unless otherwise stated, the price payable for the Goods shall be the Seller’s quoted price and confirmed by its acceptance of the Buyer’s order, or, if higher or if no such quotation was given, the price currently charged by the Seller at the date of delivery of the Goods. The price and any fees, costs and disbursements is exclusive of VAT which shall be due at the rate ruling on the date of the Seller’s invoice.
4.2 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 5% above Bank of Scotland plc’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgment. Such interest being deemed to accrue and be compounded on a daily basis from the due date for payment. The Seller also reserves the right to raise additional charges in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002.
4.3 Payment is due 30 days following the date of invoice, although the Seller may require the Buyer to pay within a shorter time period at any time by written notice. Time of payment shall be of the essence of the contract. If this condition is not complied with the Seller reserves the right to require payment by pro forma invoice, and to appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract) as the Seller may think fit.
4.4 The Seller reserves the right to grant, refuse restrict or cancel credit terms in its sole discretion.
4.5 In the event of non payment of any account as and when it falls due, whether such payment relates to the same or any other contract entered into by the Buyer, the entire balances outstanding upon the Buyer’s various accounts with the Seller (including accounts due for Goods supplied but not yet invoiced) will become immediately due and payable.
4.6 No disputes arising under the contract nor delays shall interfere with prompt payment by the Buyer. The Buyer may not set up against the Seller any breach of warranty or condition (express or implied) in diminution or extinction of the price and Section 53(1) (a) of the Sale of Goods Act 1979 is hereby excluded.
4.7 The Buyer shall not be entitled to withhold, deduct or set off against any sum payable to the Seller any amount or claim whatsoever, including but without limitation in respect of any loss or damage which the Buyer alleges that it has sustained due to any act or default of the Seller or its agents or employees. In particular but without limitation, the Buyer may not set off any amount of loss or damage arising from alleged defects in Goods received from the Seller.
4.8 Unless otherwise stated our quotations are based on current cost of material and transport and the Seller reserves the right at its sole discretion at any time before delivery of the Goods to adjust the price to take account of any increase in the price to the Seller of goods, or services, or raw materials, labour or other inputs used in the production of the Goods or goods of that kind, or to take account of any increase in taxation or duty payable, or to take account of any currency fluctuation increasing the cost of producing or purchasing the Goods or goods of that kind, measured in Sterling.
4.9 Quotations may be withdrawn by the Seller at any time and if not shall lapse 30 days from their date.
4.10 Quotations are based on full lorry loads and are subject to surcharge when this is not the case.
5. THE GOODS
5.1 Whilst every effort will be made to avoid variations of shades and sizes in Goods delivered the Seller neither guarantees nor warrants that such variations will not occur, or that the Goods will conform to any sample either in quality or colour. By nature of the products supplied, a bigger variance in size, shape, colour, texture and general quality should be expected when reclaimed stone products are supplied compared to new products.
5.2 All materials are sold as being within the relevant standard if any for manufacture for the product quoted as may be agreed between the Seller and the Buyer or to such other standard as the Seller considers in its absolute discretion to constitute an appropriate standard for that product.
5.3 The Seller is continually improving the specification and design of its product range and whilst care is taken to see that literature produced by the Seller is up to date on the date of its production, such literature should not be regarded as an absolute guide to current specification and the Seller reserves the right to modify any of its products without notice and without any liability on the part of the Seller.
5.4 The Seller may from time to time make changes in the specification of the Goods which are required to comply with any applicable safety or statutory requirements.
6. WARRANTIES & LIABILITY
6.1 The Seller will not accept any claim for consequential loss of any kind however caused.
6.2 No claim will be entertained by the Seller if made where the materials have been incorporated, whether by or on behalf of the Buyer, or by anyone else, into other Goods.
63 The Seller’s liability for any failure to supply or any defects or want of quality in the Goods supplied hereunder shall not exceed an amount equivalent to the Price save in the case of death or personal injury where the Seller is shown to have failed to exercise care in the supply of Goods.
6.4 The Seller warrants that it has title to and the unencumbered right to sell the Goods.
6.5 All implied terms, conditions and warranties relating to the quality and/or fitness for purpose of the Goods or any of the Goods are excluded. There shall be no term implied into the Contract:
6.5.1 as to any compliance of the Goods with any sample or descriptive material except as identified specifically in the Seller’s quotation or order confirmation, and section 13 of the Sale of Goods Act 1979 and section 3 of the Supply of Goods and Services Act 1982 are hereby excluded;
6.5.2 as to the quality of the Goods, and section 14(2) of the Sale of Goods Act 1979 and section 4(2) of the Supply of Goods and Services Act 1982 are hereby excluded; and
6.5.3 as to the fitness or suitability of the Goods for any or any particular purpose, and section 14(3) of the Sale of Goods Act 1979 and section 4(5) of the Supply of Goods and Services Act 1982 are hereby excluded. Any claim regarding the quality of the Goods or any alleged defect in any Goods shall be dealt with in accordance with Condition 11.2.
6.6 The Buyer expressly acknowledges that for all purposes the ability and expertise of the Buyer in evaluating any description of or information as to the Goods is equal to that of the Seller and the Buyer has not relied on the skill and judgement of the Seller in selecting the Goods for any purpose.
6.7 The Seller undertakes no responsibility for the suitability of sites or foundations or for supports of any nature, or for compliance with any local bylaws or statutory regulations with regard to the Goods, or for the fulfilment of any special requirements which the Buyer may be bound to observe or fulfil.
6.8 If Goods are made or amended to any specification, instruction, information or design supplied by the Buyer or any third party on behalf of the Buyer, then the suitability and accuracy of that specification, instruction, information or design will be the sole responsibility of the Buyer and the Seller shall have no responsibility to verify it for suitability or accuracy. In such circumstances, the Buyer will in addition indemnify the Seller against any infringement of any patent, design right, registered design, trade mark, trade name, copyright or other intellectual property right arising from the sale and/or supply of the said Goods and any loss, damage or expense the Seller may incur because of any such infringement or alleged infringement in any country.
7. DELIVERY
7.1 Dates are given as accurately as possible but while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Seller shall not be liable for any loss whatsoever or howsoever arising caused by its late or non-delivery. Time of despatch or delivery is not of the essence and a delay in delivery will not entitle the Buyer to treat the contract as repudiated or to any damages.
7.2 Where the price includes delivery to site delivery will be at the nearest point via and on a hard road suitable for heavy vehicles. The Buyer will be responsible for ensuring that delivery is effected promptly and without cost to the Seller. If a vehicle used for performing the Seller’s contract with any Buyer delivers a load to a place situated off a public road the Buyer is to be solely responsible for any accident or damage resulting in consequence.
7.3 The Seller may refuse to deliver the Goods to any location where access is considered by it to be unsuitable for the safe passage of its vehicles. Where delivery is made to the Buyer’s premises the Buyer will indemnify the Seller against any loss suffered during unloading or as a result of the access way being unsuitable. If the Buyer does not advise the Seller of any access restrictions and it transpires that the vehicle delivering the Goods is unsuitable and/or the access is restricted causing the delivery to be delayed due to the Buyer failing to disclose the restricted access the Seller may levy a charge.
7.4 Where Goods are delivered to the Buyer, the Buyer shall be responsible for unloading unless the Seller has expressly agreed to unload the Goods. Where Goods are collected by the Buyer at the Seller’s premises, the Seller will load the Buyer’s vehicle.
7.5 The Seller allows one hour for off loading vehicles. If a vehicle is detained in excess of this time the Seller reserves the right to make additional charges.
7.6 Prices only cover delivery on normal working days during working hours. Any delivery made at the Buyer’s request on public holidays, weekends and outside working hours will be subject to additional charge.
7.7 If the Buyer fails to accept delivery of Goods on the delivery date or within 3 days of notification that they are ready for despatch whether prior to or after the delivery date the Seller reserves the right to invoice the Goods to the Buyer and charge the Buyer therefore. In addition the Buyer shall then pay reasonable redelivery and/or storage charges or demurrage as appropriate in the circumstances until the Goods are either despatched to the Buyer or disposed of elsewhere. In addition, the Buyer shall indemnify the Seller fully against all charges costs and losses sustained by it as a result of continuing to store and attempting to redeliver such Goods. The Seller’s certificate as to the amount of such loss shall be final.
7.7 The Seller shall be entitled to deliver the Goods by instalments and where the Goods are so delivered, each delivery shall constitute a separate contract and to tender a separate invoice in respect of each instalment. Any failure by the Seller to deliver any one or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat any other related contracts as repudiated.
7.8 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 3 months of the delivery date.
7.9 The Seller shall not be liable for any overloading of vehicles of the Buyer or its hauliers.
7.10 Carriage is chargeable on all despatches where the Seller undertakes delivery. When the Buyer requests delivery by a specific carrier any difference in cost between the Seller’s normal method of carriage and that requested will be payable by the Buyer.
8. ACCEPTANCE AND INSPECTION/SHORTAGES
8.1 The Buyer shall be deemed to have accepted Goods 72 hours after delivery to the Buyer. Accordingly, no claim for defect, damage or quality will be entertained unless written notice together with all supporting evidence is received by the Seller within 72 hours of delivery.
8.2 The Buyer shall accept delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that any such discrepancy shall not exceed 5%, the price to be adjusted pro rata to the discrepancy.
8.3 The Seller shall have no liability for any damage or shortages that would be apparent on careful inspection by the Buyer unless a written complaint is delivered to the Seller within seven days of delivery detailing the alleged damage or shortage and the Seller is allowed access to inspect the affected Goods before any use is made of them.
8.4 Subject to Condition 7.3 the Seller shall make good any shortage in the Goods for which it is responsible and where appropriate repair or at its option replace any Goods damaged during loading or unloading by the Seller, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
9. TITLE & RISK
9.1 Risk of damage or loss of the Goods shall pass to the Buyer in the case of Goods to be delivered at the Seller’s premises, at the time when the Goods leave the despatching premises of the Seller (or of the Seller’s supplier if delivery is to be made directly to the Buyer) regardless of whether they remain on a vehicle of the Seller or not, or in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery.
9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and of all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due and there are no other amounts then outstanding from the Buyer to the Seller in respect of other Goods supplied by the Seller.
9.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall: (a) hold the Goods as the Seller’s fiduciary agent and bailee; (b) shall keep the Goods separate from those of the Buyer and third parties so that they remain readily identifiable as the Seller’s property; (c) not remove, deface or obscure any markings on the Goods or their packaging which identifies the Goods as the Seller’s property; (d) make clear in any of its asset registers or records that the Goods are not the property of the Buyer but belong to a third party; and (e) maintain those Goods in a safe and satisfactory condition and keep them insured against all usual risks for their full price. Until that time the Buyer shall be entitled to resell or use the Goods in the course of its business Provided the Buyer has not lost its power of sale under Condition 8.4, the Buyer may resell on an arm’s length basis (in its own capacity as principal and not as agent for the Seller and for such purposes title to the relevant Goods shall pass from the Seller to the Buyer immediately prior to completion of such onwards sale) or use any Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
9.4 The Buyer’s power of sale and use under this Condition 7 shall automatically cease if the Buyer becomes insolvent or suffers any form of insolvency proceedings or action (whether or not involving the intervention of the court) against it (including but without limitation any receivership, petition or order for administration, winding up or bankruptcy, any proposal for or voluntary arrangement with creditors or proposal to compound with creditors, or any similar procedures under the laws of England or any other jurisdiction) and in such circumstances the Buyer shall notify any manager, receiver or insolvency practitioner that the Goods do not belong to the Buyer but are the property of the Seller. The power of sale and use shall also be determinable at any time by notice of the Seller to the Buyer.
9.5 Until such time as the property in the Goods passes to the Buyer (and provided that the Goods are still in existence and have not been resold), the:
9.5.1. Buyer shall allow the Seller or its authorised representatives on request access any premises where any Goods in respect of which title has not passed to the Buyer may be stored (or in the case of any premises not under the control of the Buyer, shall procure that such access is granted for the Seller or its authorised representatives) for the purposes of inspecting those Goods and verifying the compliance by the Buyer with its obligations under this Condition 8 and/or where the Buyer’s right of possession of those Goods has ended, for the purposes of recovering those Goods;
9.5.2 Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or of any third party where the Goods are stored and repossess the Goods.
9.6 The Buyer 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 the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
9.7 The Seller shall be entitled to recover the Price notwithstanding that property in any of the Goods has not passed from the Seller.
10. DESIGN
10.1 Any design, calculations, data, drawings or other materials (the “Materials”) produced by the Seller whether specifically for the Buyer or not shall belong to the Seller together with all copyright, design rights and other intellectual property rights related to them. The Buyer shall have a non exclusive licence to use the Materials only in relation to the specific project in respect of which the Materials were prepared or supplied by the Seller. The licence shall only allow the use of the Materials provided the Buyer purchases from the Seller all of the goods or materials set out in or required or described by or in the Materials that the Seller is in the business of supplying.
10.2 The Seller shall not be liable for any use by the Buyer or its nominees of any drawings and other documents for any purposes other than those for which they were originally prepared by the Seller.
11. LIABILITY
11.1 The prices charged for the Goods are based strictly on the limitations and exclusions of the Seller’s liability specified in these Conditions. Should the Buyer before accepting the Seller’s offer wish to obtain higher limits of liability or varied exclusion terms, the Seller should be approached for an alternative quotation as it may be prepared to consider this in return for an addition to the price but no such discussion shall result in any variation to these Conditions unless and until agreed to by the Seller in accordance with Conditions 2.2 and 2.4.
11.2 The Seller agrees that if any defect covered by this Condition 11.2 is discovered during the period of 12 months commencing with the date of despatch, the Seller will at its option replace or repair the Goods as necessary. This Condition 11.2 only covers defects in the Goods (or their packaging or instructions) which render them non-compliant with the Seller’s or their manufacturer’s design and specifications which have been incorporated into the contract in accordance with these Conditions. It does not cover defects caused by: (i) abnormal storage, working conditions, use, misuse, neglect or accident, fair wear and tear; (ii) any failure by the Buyer or any third party to follow the Seller’s oral or written instructions as to the storage, handling and use of the Goods and/or any failure to follow good trade practice regarding the same; (iii) any alteration to the Goods made by the Buyer or any third party; and/or (iv) other matters which are excluded or restricted by these Conditions including, without limitation, Condition 6.
11.3 The Buyer cannot claim (and shall be deemed to have waived) the benefit of Condition 11.2 unless it informs the Seller of the relevant defect in writing within 30 days of discovering it or within 30 days of when it is notified to the Buyer by any third party (provided in each case it was discovered within the time described in Condition 11.2). The Buyer must ensure that the Seller is afforded a reasonable opportunity to inspect the Goods in order to claim the benefit of Condition 11.2.
11.4 The remedies provided by Condition 11.2 shall be in place of all other claims for damages or loss or compensation arising from or related to defects in, or non-compliance with the contract of the Goods or any aspect of them.
11.5 The Seller shall have no liability in tort or for non-fraudulent misrepresentation arising from or related to any aspect of the contract or its performance or from events or statements prior to the making of the contract.
11.6 The Seller shall not be liable for any consequential or indirect loss suffered by the Buyer whether this loss arises in contract or tort or in other way (including without limitation from non-fraudulent misrepresentation).
11.7 The Seller shall in no event (whether in contract, tort or otherwise whatever including nonfraudulent misrepresentation) be liable for:
11.7.1 loss of profits or anticipated profits;
11.7.2 loss of anticipated savings;
11.7.3 loss of or interruption to production;
11.7.4 delay to other works;
11.7.5 delay in the completion of any project or works;
11.7.6 damage to reputation;
11.7.7 increased costs of working;
11.7.8 liability to pay compensation or damages to third parties;
11.7.9 distress of end customers;
11.7.10 loss of enjoyment of end customers;
11.7.11 administrative or management costs or time used in dealing with the issues relating to defective product and each of the above sub-clauses shall be read as an independent term where the introductory wording forms part of each sub-clause.
11.8 The Seller’s total aggregate liability to the Buyer arising from or related to each contract in respect of any and all claims (whether arising in contract, tort or otherwise whatsoever and including without limitation non-fraudulent misrepresentation) shall not exceed £[25,000] or five times the price payable by the Customer under the contract in question, whichever is the greater, up to a maximum aggregate of £[500,000 (five hundred thousand pounds)].
11.9 The Seller does not seek to limit or exclude in any way its liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; in respect of any breach of any condition implied under section 12 of the Sale of Goods Act 1979; and/or for any other matter or liability which cannot be lawfully limited or excluded. Each provision of these Conditions and of any contract shall be read as subject to this Condition 11.9 and no provision of these Conditions or any contract is intended to nor shall be interpreted as seeking to limit or exclude any of the foregoing types of liability.
11.10 Each of these Conditions is to be treated as separate and independent.
11.11 Where Goods are supplied to the Buyer located in, or for delivery in another country outside the UK, there shall be no term of the contract, whether express or implied, that the Goods will be suitable for the conditions (or some of them) within, or will comply with any legal requirements of such other country, and the Buyer agrees to rely entirely on its own assessment and enquiries in this respect.
11.12 No claim of any description related to any contract or the Goods, or to the terms or circumstances or statements surrounding their supply, shall be brought by the Buyer against the Seller at any time after two years from the date of the first invoice in respect of the contract price for such Goods.
11.13 The Buyer agrees to indemnify the Seller against any claim (including any legal or other costs incurred by the Seller defending such a claim) made by a third party against the Seller in respect of which liability is excluded or limited as between the Seller and the Buyer under these Conditions and in any event arising from or related or connected to:
11.13.1 the Goods, including their packaging and instructions (or any part of them); or
11.13.2 any other matter.
11.14 To the extent not otherwise excluded or limited under these Conditions, the Seller’s liability to the Buyer whether contractual, in tort and/or for any breach of statutory duty or otherwise shall in all events be limited to that proportion of the Buyer’s losses which it would be just and equitable to require the Seller to pay having regard to the extent of the Seller’s responsibility for the same on the following assumptions, namely that:
11.14.1 all other consultants, contractors, sub-contractors and suppliers in respect of any project for which the Goods are purchased have provided contractual undertakings to the Buyer that they have exercised and shall continue to exercise all reasonable skill and care in the performance of their services in connection with the said project and that they have and will supply only goods and materials that comply with their contracts; and
11.14.2 any such other consultants, contractors, sub-contractors and suppliers have paid to the Buyer such proportion of the losses which it would be just and equitable for them to pay having regard to the extent of their responsibility for the Buyer’s losses.
12. INSOLVENCY OF BUYER
12.1 If the Buyer fails to make payment for the Goods in accordance with the contract of sale or commits any other breach of this contract of sale or if any distress or execution shall be levied upon any of the Buyer’s property or the Goods or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver administrator administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law or if any such matter as provided for in this clause is reasonably apprehended by the Seller all sums outstanding in respect of the Goods shall become payable immediately.
12.2 The Seller may also in its absolute discretion, and without prejudice to any other rights which it may have, exercise any of its rights pursuant to clause 9 above.
13. HEALTH & SAFETY
13.1 The Buyer shall ensure that the Goods are offloaded, located and used properly and responsibly in accordance with the Health and Safety at Work Act 1974 and any other relevant statutory provisions.
13.2 The Buyer is solely responsible for the removal and disposal of any packaging in respect of the Goods.
14. FORCE MAJEURE
14.1 The Seller shall not be liable for any failure to deliver Goods arising from circumstances outside the Seller’s control.
14.2 Non-exhaustive illustration of such circumstances would be an act of God, war, riot, explosion, abnormal weather conditions, fire, flood, strikes, lockouts, Government action or regulations (UK or otherwise) delay by suppliers, accidents and shortage of materials, labour or manufacturing facilities.
14.3 If the circumstances preventing delivery are still continuing three months after the said circumstances have arisen, then either party may give written notice to the other cancelling the contract and neither party shall be under any further liability to the other except that the buyer shall be liable to pay the contract price less a reasonable allowance for what has not been performed by the Seller.
15. SALES DOCUMENTATION AND TECHNICAL DATA
15.1 No information or expression of opinion contained in any catalogues, technical circulars, pricelists and other literature or material published on the Seller’s or any other website shall give rise to any liability whatsoever for the Seller, whether in contract, tort, misrepresentation or otherwise save that the foregoing shall not act so as to limit or exclude any liability for fraud or fraudulent misrepresentation or for any other matter which the Seller is not lawfully permitted to limit or exclude liability for.
15.2 Unless otherwise expressly agreed in writing by the Seller, any samples provided and/or technical details issued by the Seller are merely indicative of the type of Goods to be supplied and shall not constitute any representation, warranty or condition of the contract as to colour, composition, quality, fitness for any purpose, or compliance with such sample or technical details.
16. PACKAGING AND HANDLING
16.1 Any packaging supplied is intended for delivery to the Buyer and is not intended for onward transportation purposes and the Buyer is responsible for any subsequent movement of the Goods and any necessary packaging in that regard. If the Buyer supplies packaging materials to the Seller it shall be solely responsible for the suitability and safety of such packaging and shall be responsible for any loss or damage arising out of the Seller’s use of such packaging.
16.2 Goods will, unless otherwise agreed in writing between the Seller and the Buyer, be packaged in a manner that the Seller deems reasonably suitable for the method of delivery to be adopted. The Buyer will not be entitled to reject Goods on the basis of defective or inadequate packaging.
17. NOTICES
17.1 Any notice to be given under any contract shall be in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its registered office address or such other address as the party may from time to time notify in writing in accordance with this
Condition 17.1 and shall be deemed to have been served, if sent by post, 48 hours after posting. If there is no registered office or notified address for the Buyer then the Seller may serve notice to any address where the Buyer has corresponded from.
17.2 Any notice to be given under any contract shall be in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its registered office address or such other address as the party may from time to time notify in writing in accordance with this Condition 17.1 and shall be deemed to have been served, if sent by post, 48 hours after posting. If there is no registered office or notified address for the Buyer then the Seller may serve notice to any address where the Buyer has corresponded from.
18. COMPLIANCE WITH LAWS AND POLICIES
18.1 The Buyer shall and shall procure that each member of its group comply with all applicable laws, statues, regulations and codes from time to time in force and the Mandatory Policies.
18.2 Without prejudice to the general obligations under Condition 18.1 the Buyer shall:
18.2.1 comply with all applicable laws, statutes, regulations and codes relating to antibribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
18.2.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
18.2.3 have and shall maintain in place throughout the term of this agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and will enforce them where appropriate; and
18.2.4 promptly report to the Seller any request or demand for any undue financial or other advantage of any kind received by the Buyer in connection with the performance of any contract.
19. GENERAL
19.1 Unless otherwise agreed in writing where Goods are to be exported from the UK, payment shall be in Sterling. Further in all export contracts unless agreed otherwise in writing payment shall be made prior to despatch of the Goods.
19.2 When payment is made in a currency other than Sterling, the sum payable shall be increased, in order to maintain the value of the payment when converted to Sterling, by the percentage of any depreciation of the payment currency against Sterling (as quoted by the Seller’s principal bankers) which has arisen between the date of the contract and the date when payment is due (or if later the date when payment is actually made).
19.3 The Seller will be responsible for obtaining any necessary United Kingdom export licence. The Buyer will be responsible for obtaining all necessary licences which it may require to enable it to import and use the Goods and the Buyer shall not be discharged from its obligations here under by any total or partial prohibition on import or by the refusal or non-availability of any import licence or by the imposition of any conditions or restriction upon the grant of such licence.
19.4 In the event of the Buyer failing to obtain the necessary licences on or before the date of dispatch of the Goods by the Seller, the Seller shall be entitled (at its option and without prejudice to its other rights) to deal with the Goods as set out in Condition 3.5.
19.5 The Seller and the Buyer are with respect to each other independent contractors and nothing in any contract and no actions taken by the parties under any contract shall be deemed to constitute any agency, partnership, association, joint venture or other co-operative enterprise between the parties.
19.6 The headings of these Conditions are for convenience only and shall have no effect on the interpretation.
20. WAIVER, RIGHTS AND REMEDIES
20.1 No waiver by the Seller of any breach of a contract for the sale of Goods by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision or contract.
20.2 Save in respect of any rights or remedies which may not be lawfully limited or excluded, the rights and remedies which are available to the Buyer under these Conditions are the exclusive rights and remedies available to the Buyer and are exclusive of any other rights or remedies which might otherwise be implied or available to the Buyer as a matter of general law. Any right or remedy available to the Seller under any contract is not exclusive and the exercise by the Seller of any right or remedy shall be without prejudice to the exercise of any other right or remedy which may be available to the Seller whether under any contract and/or as a matter of general law. The rights and remedies of the Seller shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Seller nor by any failure of or delay by the Seller in asserting or exercising any such rights or remedies.
21. SEVERANCE
21.1 Any provision of this contract which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of this contract which will remain in full force and effect. If any such provision would be valid if part of the wording of such provision was deleted then the provision shall apply with such modification as shall make it valid and effective while preserving to the maximum extent its intended effect.
22. ASSIGNMENT
22.1 This contract is personal to the Buyer and the Buyer shall not assign, novate or transfer any of its rights or obligation under it without the Seller’s prior written consent.
23. NO SET OFF
23.1 The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have or for any reason whatever.
24. GOVERNING LAW & JURISDICTION
24.1 These Conditions, each contract and any dispute or claim arising out of or in connection with the same or their respective subject matter or formation (including any non-contractual disputes or claims) shall be governed by English Law and any dispute or action arising out of these Conditions, any contract or related to the substance of or otherwise in connection with the same shall be subject to the exclusive jurisdiction of the English Courts save that the Seller may at any time at its option and whether in relation to one or more matters of dispute or actions bring proceedings against the Buyer in any state or territory that the Seller chooses and which accepts jurisdiction.
24.2 Nothing in these Conditions or any contract shall be treated as limiting the right of the Seller to proceed to enforce any judgment or order or award in any other jurisdiction as it may in its discretion determine, nor shall the taking of proceedings or enforcing any judgment or order or award in one or more jurisdictions preclude the Seller from taking proceedings or enforcing any judgment or order in any other jurisdiction whether concurrently or not.
