CONDITIONS OF SALE
1.1 These conditions are the only conditions upon which HEREFORD QUARRIES LIMITED (“the Seller”) is prepared to deal with its customer (“the Buyer”) and they shall govern the contract to the entire exclusion of any other express or implied conditions.
1.2 These Conditions may only be modified by a variation in writing signed on behalf of the seller by a Director and no other action on the part of the Seller (whether delivery of the goods or otherwise) shall be construed as an acceptance of any other conditions.
1.3 These Conditions (as modified in accordance with condition 1.2) and together with the matters referred to on the face of the Seller’s quotation and/or acknowledgement of order, embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications but this clause shall not operate so as to exclude any liability which the Seller would otherwise have for any statements made fraudulently by the seller prior to the date of this Agreement.
1.4 Any quotation given by the seller constitutes an offer to sell the goods described therein upon these Conditions. Unless otherwise stated, it shall remain open for acceptance for a period of one calendar month from its date.
2.1 The Seller gives no undertaking in respect of the description, quality or fitness for the purposes of the goods save that where goods are ordered in accordance with British or the Department or Transport Standards, they will comply with that Specification at the time of delivery. If goods are to be supplied to conform with a sample provided by the Seller, the Seller’s liability in respect thereof shall be entirely discharged by the provision of goods which conform to such sample in all material respects. The parties hereby acknowledge that the only characteristic of
the goods delivered which is material for the purposes of establishing conformity with any sample is the relative size of the materials in the sample as compared with the materials supplied hereunder. If any of the goods do not conform to this warranty the Seller will at its option:-
2.1.1 replace the goods found not to conform to the warranty; or
2.1.2 take back the goods found not to conform to the warranty and refund the appropriate part of the purchase price.
Provided that the liability of the Seller shall in no event exceed the purchase price of the goods, and performance of any one of the above options shall constitute an entire discharge of the Seller’s liability under this warranty. For the avoidance of doubt the Buyer shall have no right to reject the whole or any part of the goods.
2.2 The foregoing warranty is conditional upon:-
2.2.1 the Buyer giving written notice to the Seller of the alleged defect in the goods such notice to be received by the Seller within (48 hours) of the time when the Buyer discovers or ought to have discovered the defect and in any event within seven days of delivery of the goods; and
2.2.2 the Buyer affording the Seller a reasonable opportunity to inspect the goods and if so requested by the Seller, returning the allegedly defective goods to the Seller’s works, carriage pre-paid, for inspection to take place there; and
2.2.3 goods not having been altered or used in any way whatsoever or not having been subjected to misuse, and
2.2.4 goods having been properly stored and handled; and
2.2.5 the Buyer complying with its obligations under this or any other contract made with the Seller.
2.3 Save as provided in condition 2.1 and in section 12 of the Sale of Goods Act 1979:-
2.3.1 all conditions and warranties, express or implied, as to the quality or fitness for any purpose of the goods are hereby expressly excluded; and
2.3.2 the Seller shall be under no liability for any loss or damage (whether direct, indirect or consequential) howsoever arising which may be suffered by the Buyer.
2.4 In the event that, notwithstanding the foregoing provisions of this Condition, the Seller is found liable for any loss or damage suffered by the Buyer, that liability shall in no event exceed the purchase price of the goods.
2.5 The foregoing provisions of this Condition shall not apply to sales which are made to persons who deal as consumers (as that expression is defined in Section 12 of the Unfair Contract Terms Act 1977), unless the contract is an international supply Contract (as described in Section 26 of that Act).
3.1 Subject to the provisions of clause 1.4 the price of the goods shall be that set out in the Sellers quotation and/or acknowledgment of order save that the Seller reserves the right to make an additional charge:-
3.1.1 where the order is for less than 20 tonnes; or
3.1.2 where the goods are to be delivered outside the Seller’s ordinary working hours or
3.1.3 where for any reason (other than the default of the Company or its servants or agents) the delivery vehicle is unable to discharge its load within 15 minutes of its arrival at the delivery point, at a rate of £35.00 for the first 30 minutes and at £1.00 per minute thereafter.
3.2 All quotations and charges are subject to VAT at the current rate unless otherwise specified.
4.1 Unless otherwise agreed in writing, payment will be made by the Buyer at the time of order/delivery.
4.2 If the Buyer does not have an agreed credit account with the Seller in the course of business, then the Seller shall be entitled to charge interest at an annual rate of 4% above Bank of England Base Rate from time to time applicable on all overdue payments. Where the Buyer is trading in the course of business, the Seller will rely on the provisions of the Late Payment of Commercial Debts (interest) Act
1998 and its associated Regulations.
4.3 Where any sum owed by the Buyer to the Seller under this or any other contract is overdue the Seller may withhold any deliveries of goods due to be made under this contract until arrangements as to payment or credit have been established which are satisfactory to the Seller.
4.4 If the Buyer fails to pay for the goods in accordance with these Conditions, the Seller may bring an action against the Buyer for the price at any time, even though the property in the goods has not passed to the Buyer.
The Seller will (without prejudice to any other remedy available to it) have in respect of all unpaid debts due from the Buyer a general lien on all property of the Buyer in the possession of the Seller for whatever purposes and whether worked upon or not and be entitled on the expiration of not less than 14 days notice in writing to the Buyer to dispose of such property and to apply the proceeds towards the satisfaction of such debts.
6.1 Delivery of each consignment of the goods shall be made to the place, and in the manner designated by the Buyer when placing the order provided that the Seller shall be entitled to withhold delivery of the goods until the Buyer has paid all sums due to the Seller hereunder.
6.2 The Seller will use its best endeavours to deliver goods on the day and at the time specified. However the Buyer acknowledges that such times can only be an estimate where orders are placed at short notice and:-
6.2.1 The Buyer orders a large volume of goods; or
6.2.2 The Buyer alters the terms of its order in any material way.
6.3 Where the goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the contract as a whole as repudiated.
6.4 If the Buyer being a company shall pass a resolution or suffer an order of a court to be made for its winding-up, or if a receiver shall be appointed, or if a petition for the appointment of an administrator shall be presented in respect of it, or being an individual or partnership shall suspend payment or propose to enter into any composition with creditors or become unable to pay its debts (or have no reasonable prospect of so doing) or suffer a bankruptcy order, then the Seller may without prejudice to any other right rescind the contract, or suspend or cancel delivery or recover the possession of any goods for which payment in full has not been received.
6.5 The Buyer shall provide safe and adequate access to the point of discharge of the goods. Where the Seller, (or its servant or agent) in its absolute discretion considers conditions of access to be unsuitable it reserves the right to refuse to make delivery and to charge the Buyer for ail costs incurred.
6.6 The Seller will not be liable to the Buyer for any damage caused to the Buyer’s property by the delivery of the goods.
- RISK AND PROPERTY
7.1 The risk in the goods shall pass to the Buyer upon delivery of the goods to the Buyer or any carrier acting on the Buyer’s behalf.
7.2 The property in the goods shall not pass to the Buyer until the full price of the goods and goods which are the subject of any other contract between the Buyer and the Seller is paid.
7.3 Until such time as the full price of all such goods has been paid:-
7.3.1 they shall be held by the Buyer in a fiduciary capacity,
7.3.2 they shall be handed over to the Seller on demand and the Seller shall be entitled to re-take possession of them without prejudice to any of its other rights against the Buyer and the Seller is hereby granted a licence to enter into the Buyer’s premises for the purpose of recovering the goods.
7.4 If the Buyer fails to pay for the goods in accordance with these terms the Seller will have the right to bring an action against the Buyer for the price of the goods at any time notwithstanding that property in the goods has not passed to the Buyer.
- INITIAL DEFECTS
8.1 The Buyer shall have no claim in respect or any breach of the warranty in Condition 2.1 which should have been apparent on a reasonable visual examination of the goods unless the conditions in condition 8.4 are satisfied.
8.2 If the quantity of goods delivered does not correspond with the quantity required to be delivered in that consignment the Buyer shall not be entitled to reject that consignment but if the quantity delivered is substantially less than the contract quantity, the Buyer shall be entitled to a further delivery of goods to make up the deficiency or (at the Seller’s option) a refund of the appropriate part of the purchase price provided that the Buyer shall have no entitlement whatsoever in respect of that deficiency unless the conditions in condition 8.4 are satisfied
8.3 The Buyer shall have no claim in respect of the fact that the goods delivered are of the wrong description unless the conditions in
8.4 The conditions before referred to are that:-
8.4.1 the receipt for the goods is qualified by a remark to that effect, and
8.4.2 the claim is made upon the Seller within 48 hours of delivery and is confirmed in writing by letter within five days of delivery
8.5 In any event the Buyer shall be treated as having accepted any consignment of the goods if it retains them for longer than seven days after their delivery.
Contracts are not subject to cancellation without the Seller’s written consent. Where cancellation is accepted, the Seller shall in addition to any express terms of acceptance of cancellation be entitled to re-imbursement of any costs incurred by the Seller in connection with the contract.
- FORCE MAJEURE
The Seller accepts no responsibility for total or partial failure to supply or for the delay in supplying any materials or goods which may be due directly or indirectly to any Act of God or force majeure, or any war in which Her Majesty is engaged, invasion, riot, civil commotion, military or unsurped power, any legislation, Government order, regulation or direction, any strike, differences with workmen or lock out, any fire, accident, breakdown in machinery, any shortage of labour or raw materials, equipment or spare parts effecting the production or transit of such
materials or goods or any other cause or circumstances reasonably beyond its control or any abnormal conditions arising from the foregoing clauses. In the event of a partial stoppage of work resulting from, one of the circumstances referred to above, the Seller shall perform its obligations under the contract pro rata with other engagements existing at the time.
The Buyer will have no right of set-off statutory or otherwise.
- GOVERNING LAW
The contract is governed by the Laws of England and the English High Court of Justice (to the jurisdiction of which the Buyer hereby irrevocably. submits) and shall have the exclusive jurisdiction to resolve any disputes out of it.
NOTE: The Seller’s prices are calculated on the basis that the above Conditions will apply. Buyers requiring prices to be quoted on a different basis should inform the Seller