THE BUYERS ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSE 7
1. Application of Terms
- In these terms and conditions (“Terms”) “we” or “us” means Dorset Soils & Aggregates Limited specified in the contract for the sale of goods to you and “you” means the buyer and “our” and “your” shall be construed accordingly.
- Each order for goods by you to us shall be deemed to be an offer by you to purchase goods subject to these Terms. Subject to any variation under clause 1.4 the Agreement will be on the Terms to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any purchase order, confirmation of order, specification or other document).
- No terms or conditions endorsed upon, delivered with or contained in your purchase order, confirmation of order, specification or other document will form part of the Agreement simply as a result of such document being referred to in the Agreement.
- These Terms apply to all our sales and any variation to these Terms and any representations about the goods shall have no effect unless expressly agreed in writing and signed by one of our authorised representatives.
- No order placed by you shall be deemed to be accepted by us until a written acknowledgement of order is issued by us or (if earlier) we deliver the goods to you.
- Any Quotation is given on the basis that no agreement will come into existence until l we despatch an acknowledgement of order to you and such Quotation may be altered or withdrawn without notice by us. Any Quotation is valid for a period of 30 days only from its date, provided that we have not previously withdrawn it.
- You must ensure that all information which is prepared by you is complete and accurate.
2. Estimates and Fitness for Purpose
- You acknowledge that you do not rely on, and waive any claim for breach of, any representations made by our employees or agents. This Agreement and any terms contained in our written acknowledgement of order supersede any prior arrangements. Any estimates of guarantees needed or advice or recommendations as to the suitability or fitness of any goods for any particular purpose given by our employees or agents, is given without liability on our part. You will be entirely responsible for ascertaining the quantities required and the suitability and fitness of goods for their purpose.
- You acknowledge that we are entitled to rely on all information provided by you or any persons who are working for you and you warrant that it is accurate.
3. Terms of Payment
- Credit accounts may be opened, subject to all satisfactory credit references being obtained, in our sole discretion. Payment for goods supplied on a credit account shall be due and payable not later than the last day of the month following the month of delivery of the goods. If you default in making payment as aforesaid or we consider that your financial position no longer justifies such credit arrangements then the entire balance of your account shall be payable forthwith and we shall be entitled to charge interest on the account, together with costs and expenses, in accordance with clause 4.4.
- Subject to clause 4.1, for all retail transactions payment shall be in cash to be paid either prior to or at the time of order. If cash is not paid with the order, we have the right to require cash on delivery.
- You may not withhold or set off payment of any amount due to us whether in respect of any claim by you relating to goods supplied by us or for any other reason which we do not admit liability.
- If you fail to make any payment on the due date then, without prejudice to any other right or remedy available to us, we shall be entitled to:
- Cancel the contract or suspend any further deliveries to you;
- appropriate any payment made by you to such of the goods (or the goods supplied under any contract between you and us) as we may think fit notwithstanding any purported appropriation by you; and
- charge interest to you at the rate of 8% above the base rate from time to time of National Westminster Bank plc on the unpaid balance; this interest shall accrue on a day to day basis from the date due for payment until receipt by us for the full amount whether before or after any judgment; and
- be indemnified by you against all costs and expenses (including legal costs and expenses on a full indemnity basis) incurred by us in recovering sums due or in exercising our rights pursuant to clause 4.
- Interests costs and expenses shall be due and payable pursuant to the foregoing clauses notwithstanding the fact that a portion of the account is subject to any dispute or query.
- If at any time you are an existing credit account customer and intend, being a company, to alter your constitution or, being a sole trade or partnership, to become incorporated or amalgamated with others, it shall be your duty to give prior written notice to us of the intended change if you wish to continue credit account facilities following the intended change. Continuance of trading with the amalgamated entity or commencement of trading with a new entity shall be in the sole discretion and only deemed undertaken by us if a written acknowledgement is issued by our Credit Controller or one of our Directors. You agree that we may obtain, retain, and provide to third parties, references as to your financial standing.
- Delivery will occur when the goods are ready for unloading at the delivery address, or when you take possession of the goods at our premises whichever is the earlier. Delivery dates or times mentioned in any quotation or acknowledgement of order or elsewhere are approximate and not of contractual effect and we shall not be liable to you for any failure to deliver on any particular date or dates, or at any particular time, nor shall time be of the essence of any contract or shall it be possible to make time of the essence.
- Our obligation to deliver is conditional upon there being suitable access to the point where delivery is requested by you or persons working on your behalf and such delivery point being suitable. If no such access exists delivery will be made to the nearest point to the desired delivery point to which, in the opinion of the driver, the vehicle can safely proceed and unload. For the avoidance of doubt, all elements of delivery are at the driver’s discretion. (Our drivers are governed by strict guidelines relating to Health and Safety.) You must read our delivery service sheet. If you are in doubt about the delivery point we can provide more detailed information regarding our requirements.
- Except where we have agreed to provide a vehicle mounted crane, you will provide all necessary labour and equipment required to unload materials promptly.
- If you or a person working for you is not present at delivery and/or you refuse or fail to take delivery of goods tendered in accordance with the contract we shall be entitled to immediate payment in full for the goods so tendered and we shall be entitled to store the relevant goods at your risk and you shall in addition to the purchase price pay all costs of such storage and any additional costs or carriage incurred as a result of your refusal or failure. If you or a person working for you is not present we reserve the right to deliver the goods.
- On your request, we will within 1 month of delivery, provide evidence of delivery of goods ordered, such as a copy of a delivery note. If you do not raise any query about delivery within such period, the goods shall be deemed to have been delivered in accordance with your order.
- In the event of any breach of your obligations under this clause and/or your failing to provide unrestricted access to enable us to make a delivery in an efficient manner then you agree to indemnify us against any cost, claim, loss or damage arising there from.
- The risk in the goods shall pass to you upon delivery.
5. Title of Goods
- Ownership of the goods shall not pass to you until we have received in full (in cash or cleared funds) all sums due to it in respect of:
- the goods; and
- all other sums which are or which become due to us from you on any account.
- Until ownership of the goods has passed to you, you:
- must hold the goods on a fiduciary basis as our bailee;
- may sell and deliver the goods to third parties in the ordinary course of your business, acting towards such third parties as a principal and not as your agent, but you shall hold all proceeds of sale on trust for us in a separate bank account;
- must store the goods (at no cost to us) separately from all other goods of yours or any third party in such a way that they remain readily identifiable as our property;
- must not destroy, deface or obscure any identifying mark or packaging on or relating to the goods;
- must maintain the goods in satisfactory condition and keep them insured on our behalf for their full price against all risks to our reasonable satisfaction. On request you shall produce the policy of insurance to us; and
- must hold the proceeds of the insurance referred to in clause 6.2.4 on trust for us and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
- The authority given to you pursuant to clause 6.2.2 will continue until l otherwise notified to you by us or until l the happening of any of the following events (whichever is earlier):
- any notice to you that an administrative receiver or the other receiver or manager is to be or has been appointed in respect of your undertaking or a material part thereof or other property or assets;
- any notice to you that a petition to wind you up is to be or has been presented to you under Section 124 of the Insolvency Act 1986 or otherwise or any notice to you of a proposal to pass a resolution to wind you up (including any proposal by you so to do);
- a decision by you to make a voluntary arrangement or composition with your creditors or any notice to you and/or any of your creditors that a proposal for the same is to be or has been made;
- you becoming unable to pay your debts as such expression is defined by the Insolvency Act 1986;
- any notice to you that you are to be the subject of a petition for an administration order or the making of any administration order in respect of you. And you shall immediately notify us in writing upon the happening of such an event; or
- our believing that any of the above is likely to occur.
- On receipt of written notice from us or on the happening of any events set out in clause 6.3 your authority to sell our goods shall immediately be with-drawn and all such products made therefrom shall immediately be delivered to us at your cost and risk.
- You shall inspect the goods upon delivery. We will make good at our option by repair or replacement any defects in the goods due solely to defective workmanship or materials which are notifi ed in writing to us and, in the case of any defect discoverable upon reasonable examination, such notification must be made within 2 working days from the date of delivery and, in the case of any defect not discoverable upon reasonable examination, such notification must be made within 2 working days of the date the defect is actually discovered provided that:
- our above obligations shall not extend to defects caused by wilful damage, negligence (other than our employees of agents) fair wear and tear, alteration or repair of the goods without prior written approval, or incorrect storage, application, movement or installation;
- we shall not be responsible either for cost of removing any defective goods from any place where they have been installed or affixing in such place any repaired or replacement goods unless the same shall have been previously agreed in writing by one of the directors; and
- our above obligations shall in any event only apply for a period of twelve months from the date of delivery.
- We will not accept liability for shortages in quantities delivered unless you notify us of any claim for the short delivery of the goods within 2 working days of delivery. In such circumstances our liability shall be limited to making good the shortage.
- Our liability in respect of any goods not manufactured by us, but supplied by us shall be to give you the benefit of any manufacturer’s guarantee or other rights (if any) which are available to us against the manufacturer or its own supplier of such goods or materials.
- In any event our aggregate liability under or in relation to any supply of goods that are supplied pursuant to any one order shall be equal to 1.5 times the price paid to us in relation to such order.
- Save as set out in these conditions and save for breach of our undertakings as to title implied by statute, all express of implied conditions, representations or warranties as to description, quality or fitness of the goods or otherwise are expressly excluded. We shall not be liable for any consequential, in-direct or economic loss or for any loss or depletion of profits, business, revenue, goodwill or anticipated savings (whether arising from breach of contract, tort (including breach of statutory duty and negligence) misrepresentation or otherwise.
- Where fine or special tolerances are required in goods supplied beyond those generally accepted in the building trade, no liability shall attach to us unless such fine tolerances are notified in writing to us at the time of order and we have acknowledged in writing that we are prepared to accept such order.
- Where the goods are sold under consumer sale your statutory rights are not affected by these conditions.
- On request, we will provide information about any guarantee offered by a manufacturer available to you in respect of the goods.
- Nothing in this Agreement shall exclude our liability to a greater extent than is permissible by law.
7. Cancellation of Orders
- Subject to clause 9.2 we may in our sole discretion accept or reject the cancellation of any order after we have accepted such order. We will not accept the cancellation of an order for goods which are to be specifically made or obtained or which are liable to deteriorate or expire rapidly after we have accepted such an order nor will any allowance be made in respect of such goods when they are subsequently returned.
- Subject to clause 9.3, where you are a consumer under a “distance contract”, both as defined in the Customer Protection (Distance Selling) Regulations 2000, you may cancel the order within 14 working days after the day the goods are delivered. You must then either return the goods to the branch from which they were delivered or request us to collect the goods and in the latter case you will be liable to pay our costs of collection.
- You will not have a right of cancellation under clause 9.2 where the goods are made to your specification or are personalised or are liable to deteriorate or expire rapidly.
8. Return of Goods
- We may in our sole discretion accept or reject the return of any goods which have been incorrectly ordered. If we decide to accept the return of such goods, such acceptance shall be upon such terms as we may determine and in particular we reserve the right to charge for the carriage and handling of such goods. We will not accept the return of goods which are liable to deteriorate or expire rapidly.
If in the event that:
- you make a proposal for or enter into a scheme of arrangement or a composition with your creditors or fail to comply with a statutory demand for the repayment of a debt within the time therein allowed, or become apparently insolvent; or
- (where you are an individual or, where you are a partnership, in the case of any individual partner) an application is made to the court under part VIII of the Insolvency act 1986 for an interim order for the purpose of a voluntary arrangement or an order is made for the administration of your estate pursuant to Part VI of the County Courts Act 1984 or a bankruptcy petition relating to you is presented to the court if you are adjudged bankrupt; or
- (where you are a company) a petition for an administration order is presented to the court pursuant to Part II of the Insolvency Act 1986 or you pass a resolution or the court makes an order that you should be wound up (otherwise than for the purpose of amalgamation or reconstruction) or a receiver or administrative receiver is appointed of any of your assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver or administrative receiver; or
- (where you are either a company or a partnership) circumstances arise which entitle the court to make a winding-up order; or
- (whether you are a company, a partnership or individual) you take or suffer any similar action in consequence of debt; or
- you commit a material breach of this Agreement we may stop any goods in transit and suspend further deliveries and may forthwith terminate the contract without prejudice to the continuation of all our rights hereunder and to any existing claims. Where goods have been delivered but not paid for, the amount shall become immediately due and payable and where goods have been ordered but not delivered we shall be entitled to cover all losses suffered by us in relation thereto.
- The failure by either you or us to exercise or enforce any rights conferred by the contract shall not be deemed to be a waiver of any such rights nor operate so as to bar the exercise or enforcement of such right at any time thereafter.
- Certain products supplied by us could if incorrectly used give rise to risks to health and safety, information in respect of such is available from us. You undertake to us that you will ensure compliance so far that is reasonably practicable by your employees, agents, licensees and customers with any instructions given by us or the manufacturer for the purpose of ensuring that the goods will be safe and without risk to health when properly used and will take any other steps or precautions, having regard to the nature of the goods, as are necessary to preserve the health and safety of persons handling, using or disposing of them.
- This Agreement is between us and you as principals and is not assignable without our consent.
- This Agreement shall be governed by and construed in all respects in accordance with English law and each party hereby irrevocably submits to the non-exclusive jurisdiction of the English Courts.
- Any notice required to be given hereunder shall be sent to the address of the recipient given on the order. A notice shall be deemed to have been served if by hand when delivered, if by telex or facsimile, when sent and if by first class post 48 hours after posting.
- The marginal notes are for reference purposes only and do not limit or otherwise affect the interpretation of the foregoing conditions.
- Each of the Clauses and sub-clauses of these Terms shall be construed as separate and severable.