STANDARD CONDITIONS OF SALE
- Acceptance of these Conditions and Basis of Contract
(a) Only these conditions shall apply to sales by Dorsey Construction Materials Ltd (company registration number 02701696) hereinafter referred to as the “Company”. These conditions shall apply to the exclusion of any other terms which the Customer seeks to incorporate or impose or which are implied by law, trade custom, practice or course of dealing.
(b) The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any relevant specification submitted by the Customer are complete and accurate.
(c) The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
(d) If the terms and conditions stated in the Customer’s Order are inconsistent herewith, or if they contain a provision having an effect similar to this condition or purporting by other means to exclude these conditions, the Company’s acceptance of the Customer’s Order shall constitute a counter offer and the Customer shall be deemed to have accepted these conditions.
(e) The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these conditions.
(f) Any samples, drawings or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures, online or otherwise are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
(g) To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the specification. This Clause 1(g) shall survive termination of the Contract.
- Variation of Conditions
Any variation of these conditions must be made in writing and signed by an authorised official of the Company. At the request of the Customer, the Company will verify whether any named individual has the requisite authority. If and in so far as these conditions are inconsistent with the written confirmation issued by the Company upon acceptance of the Customer’s Order, the written confirmation shall prevail.
- Status of Parties
Neither of the parties to this Contract is dealing as a consumer and the Customer hereby confirms that it is buying the Goods for use in its business.
(a) The price of the Goods shall be the price set out in the Company’s quotation, or, if no price is quoted, the price set out in the Company’s published price list in force as at the date of delivery.
(b)The Company reserves the right to vary the prices charged for the Goods at any time.
(c) Prices are exclusive of V.A.T (which the Customer shall be additionally liable to pay) unless otherwise stated.
(d) The Company also reserves the right to make an additional charge for handling and delivery on small orders and such charge will be included within its quotation.
- Terms of Payment
(a) The Company may invoice the Customer for the Goods on or at any time after the completion of delivery.
(b) Invoices are due and payable within 30 days of the end of the month in which the Goods are delivered. Time for payment shall be the essence of the Contract.
(c) If the Customer fails to pay any invoice by the due date, the Customer shall pay interest on the overdue sum at a rate of 2% per month until payment (whether before or after judgment), and the Company shall have the right (without prejudice to any other remedies it may have) to cancel or suspend any outstanding order and either alternatively, or in addition (but without notice to the Customer) cease to make any further deliveries to the Customer whilst payment remains outstanding.
(d) All amounts due shall be paid in full without any set off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- Availability of Goods
Acceptance and completion of an Order is subject always to the Goods which have been ordered being available and the Company shall be under no liability for delay caused by the Goods not being available for whatever reason.
(a) Time of delivery of the Goods, or performance by the Company of any part of this Contract, is not to be of the essence of the Contract. Any date for delivery given by the Company is the best estimate that can be made and the Company shall not be liable for any loss or damage caused by delivery being made after any quoted date, nor any consequential loss or damage arising from the delay, howsoever caused.
(b) The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
(c) The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Company notifies the Customer that the Goods are ready.
(d) Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
(e) The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- Damaged or Faulty Goods and Short Deliveries
(a) The Company warrants that on delivery the Goods will conform in all material respects with their description and be free from material defects in design, material and workmanship. Any damage, fault, defect or shortage in the Goods must be noted on the driver’s copy of the delivery note at the time of delivery, and reported in writing to the Company within a period of three days from the date of receipt of the Goods.
(b) Following notice given by the Customer pursuant to clause 8(a) above, the Company shall be given reasonable opportunity to examine the Goods and the Customer shall, if asked to do so by the Company, return such Goods to the Company’s place of business at the Customer’s cost.
(c) The Company will not be liable for any damage, fault, defect or shortage in the Goods unless the Customer has complied with clauses 8(a) and 8(b), and in any event the Company’s liability will be limited to the repair or replacement of the Goods agreed to be affected, whichever the Company may decide. This shall be the Customer’s sole remedy for defective Goods.
(d) The Company shall not be liable for any damage, defect or fault : (i) caused by the Customer’s further use of the Goods after notifying the Company of the damage or fault; (ii) where the Customer fails to follow the Company’s oral or written instructions as to the storage, installation and/or use and maintenance of the Goods (including but not limited to any data sheets or installation guides supplied with the Goods at the point of delivery) or (if there are none) good trade practice regarding the same; (iii) where the Customer alters or repairs the Goods without the written consent of the Company; (iv) where the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions; (v) the defect arises as a result of the Company following any drawing, design or specification supplied by the Customer; (vi) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
(e) These conditions shall apply to any repaired or replacement Goods supplied by the Company.
(f) The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
(g) The Customer acknowledges that the written instructions supplied with the Goods at the point of delivery (including but not limited to data sheets and installation guides) are the most up-to-date versions and shall be followed to the exclusion of any written instructions provided by the Company in any pre-contract information or otherwise prior to delivery and such pre-contract pre-delivery written instructions shall be disregarded by the Customer.
(h) The Company reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirement, and the Company shall notify the Customer in any such event.
(i) Except as provided in this Clause 8, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Clause 8(a).
The Customer agrees to provide unimpeded access for the employees and vehicles of the Company, its sub Contractors and carriers on or into the Customer’s property for the purpose of delivering Goods on behalf of the Customer. Neither the Company, it’s sub-Contractors or carriers, nor any of their respective employees shall be liable for any loss, injury or damaged caused to any person or property by or arising out of the entry of such employees or vehicles on or into the Customer’s property, or for any consequential loss or damage arising therefrom. In the event of the Customer failing to provide unimpeded access, as set out above, the Company shall be entitled (but not bound) to store the Goods at the Customer’s risk. The Customer shall be liable to the Company for all expenses and/or loss incurred by the Company by reason for its failure to take delivery of the Goods.
- Risk and Title
(a) The risk in the Goods shall pass to the Customer on completion of delivery.
(b) Title to the Goods shall not pass to the Customer until the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums.
(c) Until title to the Goods has passed to the Customer, the Customer shall (i) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property; (ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (iii) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (iv) notify the Company immediately if it becomes subject to any of the events listed in clause 12(a) – 12(c); and (v) give the Company such information as the Company may reasonably require from time to time relating to the Goods; and the ongoing financial position of the Customer.
(d) At any time before title to the Goods passes to the Customer, the Company may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
- Cancellation by the Customer
Orders accepted by the Company can be cancelled only with the written consent of the Company and then only
upon payment of reasonable cancellation charges which shall include expenses already incurred and
commitments made by the Company.
- Cancellation by the Company
The Company shall be entitled to terminate the Contract and/or cancel any Order by written notice and without prejudice to the recovery of any damages, costs and expenses incurred by Company if:
(a) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction..
(b) the Customer stops payment or ceases or threatens to cease to carry on its business or meet its debts or shall be in default of or in breach of any of its obligations to the Company under any contract or otherwise howsoever.(c) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
(d) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within five days of being notified in writing to do so.
Without prejudice to those rights set out above the Company shall be entitled, if it receives information from which it appears that the Customer may be unable to pay its debts, to demand security prior to a delivery, either by payment in cash or by a Bank or personal guarantee notwithstanding any terms of payment previously agreed and in the event that the Customer is unable to provide such security the Company shall be entitled to withdraw from the Contract without liability.
Without limiting its other rights or remedies, the Company may suspend provision of the Goods and/or terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
- Consequences of Termination
(a) On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and, in respect of any Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice which shall be payable by the Customer immediately on receipt.
(b) Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
(c) Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
- Limitation of Liability
(a) The restrictions on liability in this Clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise. This Clause 14 shall survive termination of the Contract.
(b) Nothing in the Contract limits any liability which cannot legally be limited, including liability for: (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (iv) defective products under the Consumer Protection Act 1987.
(c) Subject to Clause 14(b), the Company’s total liability to the Customer shall not exceed an amount equal to all sums paid by the Customer to the Company for Goods in the 12 months prior to the date on which the event giving rise to the liability occurred.
(d) Subject to Clause 14(b), the following types of loss are wholly excluded: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; and (vii) indirect or consequential loss.
(e) The Customer acknowledges that some of the Goods may not be certified by the British Board of Agrément (“BBA”). The Company provides no guarantee that the Goods have BBA approval and it is the Customer’s responsibility to check this with the Company.
- Force Majeure
(a) In the event of any Force Majeure Event preventing, impelling or interfering with the despatch or delivery of the whole or part of any Goods, the Company reserves the right to delay, suspend and/or cancel delivery without incurring liability for any direct or consequential loss, injury or damage, which may be caused or sustained by the Customer and/or any third party in consequence of any such suspension and/or cancellation.
(b) The expression “Force Majeure Event” shall mean an event, circumstance or cause beyond a party’s reasonable control which shall include but not be limited to: strikes, lock-outs, riots, civil commotions, war-national or international, emergency, destruction or damage due to natural forces, fires, and explosions, pandemic or epidemic and compliance with orders or requests of any national or local authority.
- Entire Agreement
This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral relating to its subject matter. Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, warranty or understanding other than those expressly set out in this agreement.
Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or pre-paid first class post at its registered office (if a company) or its principal place of business (in any other case). Any notice shall be deemed to have been received if delivered by hand at the time the notice is left at the proper address, and if sent by first class post on the second business day after posting.
(a)The Company may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this Clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Third Party Rights
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- Governing Law and Jurisdiction
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
In these Conditions of Sale:-
“Contract” means the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with these terms and conditions.
“Customer” means the person or firm purchasing Goods from the Company under these conditions of sale.
“Force Majeure Event” has the meaning given to it in clause 15.
“Goods” means the articles, products, things, or any of them available from the Company.
“Order” means the Customer’s order for the Goods as set out in the Customer’s purchase order form, an email, an order placed online via the Company’s website, the Customer’s written acceptance of the Company’s quotation, a verbal order placed by telephone, or otherwise as the case may be.