GENERAL CONDITIONS OF SALE
1. In these conditions:-
“the Company” shall mean Kesgrave Aggregates. Whose registered office is situated at Dan's Meadow, Bealings Road, Martlesham, Woodbridge, Suffolk IP12 4RW. “the customer” shall mean the individual, company or other body with whom the Company are transacting business. “Goods” shall mean products manufactured or dealt in by the Company.
2. Any quotation given by the Company is deemed to be an invitation to treat and shall remain open for a period of 30 days only. All quotations are given, all orders are accepted and all contracts are entered into by the Company for the Sale of Goods subject to these terms and conditions. Any additional terms must be agreed in writing by the Company. The contract between the Company and the Customer is constituted by the Company’s acceptance, whether by the Company’s form of acknowledgement or otherwise of the Customer’s order and no contractual obligation binding on the Company shall arise until despatch of acceptance in writing by the Company which may at the discretion of the Company be subject to a bankers or other satisfactory credit reference. If any terms of the Customer’s order are inconsistent with these conditions, these conditions shall prevail unless the variation is expressly accepted by the Company in writing.
3. Any Goods incorrectly ordered by the Customer must be paid for in full by the Customer.
4. Any typographical or other error or omission in any documentation issued by the Company shall be subject to correction without any liability on the part of the Company.
5. WARRANTIES
5.1In these condition’s “Defect shall mean the condition and \ or any other circumstances which but for the effect of these conditions would have entitled the customer to damages.
5.2 Except in respect of the death or personal injury caused by the Company’s negligence the Company shall not be liable to the customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law (or under the express terms of the contract) for any consequential loss or damage(whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or agents otherwise), which arise out of or in connection with the supply of the Goods to their use or resale by the customer, except as expressly provided in these conditions.
5.3 Subject as expressly provided in these conditions, and except where the Goods are sold to a person dealing as a consumer(within the meaning of the unfair contract Terms Act 1997) all warranties, conditions, or other implied by statute or common law are excluded to the fullest extent permitted by law provided always that nothing contained in these terms and conditions shall or shall purport to exclude or limit the Company’s liability where such exclusion or limitation is prohibited, void or unenforceable under English Law.
5.4 The Company’s employees and / or agents are not authorised to make any representations concerning the Goods unless confirmed by a duly authorised representative of the Company in writing.
5.5. Where but for the effect of clause 5.2 above a customer would have been entitled to damages against the Company, the Company shall not be liable to pay damages but subject to the conditions set out in 5.6 below shall at its sole discretion repair the Goods at its own expense or supply replacement Goods free of charge or refund all(or where appropriate part) of the price paid for the relevant Goods.
5.6 The company shall no be liable under 5.5:
5.6.1 If the defect arises from wear and tear.
5.6.2 If the defect arises from wilful damage, negligence, abnormal working conditions, misuse, alteration or repair of the Goods failure to follow British standard or industry instruction relevant to the Goods or the storage of the Goods in unsuitable conditions(but this sub clause shall not apply to any or omission of the Company)
5.6.3 Unless after the discovery of the defect the Company is given a reasonable opportunity to inspect the Goods before they are used or in any way interfered with. For the avoidance of doubt the Company acknowledges that the cost of suspending works are relevant in determining what is a reasonable opportunity and this clause shall not apply to any works affecting the Goods which it may be reasonably necessary to carry out in the interests of safety and \ or emergency measures.
5.7 subject to clause 5.2 and 5.3 of these conditions the Company shall not be liable for any misrepresentation (unless fraudulent) or any breach of the warranty condition or other term express or implied or any breach of duty(common law or statutory) or negligence for any damages whatsoever (if not withstanding 5.2 of these conditions the customer is entitled to recover any)nor shall the Company be liable under 5.5 of these conditions unless
5.7.1 The defect would have been apparent on a reasonable inspection under clause 7.6 of these conditions at the time of unloading and notice of any claim is given to the company in accordance with the Notice Procedure: or any other case
5.7.2 the defect is discovered within the period following delivery(*Discovery period*) and notice given after discovery within the period(*Notice Period*) as set out below
Goods Discovery period Notice period
Aggregates 24 Hours Within 2 working days written notice within 7 days
Minerals One Month Written notice within 7 days
5.8 If the Goods are manufactured, processed or mixed by the Company to the design quantity, measurement or specification of the customer or its agent then:
5.8.1 subject to 5.2 and 5.3 of these conditions the Company shall not be under any liability for damages whatsoever or under clause 5.5 of these conditions as the case may be except in the event of:
1 fraudulent misrepresentation
2 misrepresentation where the representation was made or confirmed in writing
3 non-compliance with such design quantity measurement or specification
4 breach of a written warranty by the Company that the Goods are fit for that purpose or
5 a claim maintainable against the Company pursuant to clause 5.2 or 5.3 of these conditions.
5.8.2 the customer will unconditionally fully and effectively indemnify the Company against all loss damages costs on an indemnity basis and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the company in settlement of any claim for infringement of any patents, copyright design, trademark or any other industrial or intellectual property rights of any other person.
5.8.3 the customer will further unconditionally fully and effectively indemnify the Company against all loss damages costs on an indemnity basis and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the customer in settlement of any other claim arising from any such manufacturing, processing or mixing but not limited to any defect in the Goods: This indemnity shall be reduced in proportion to the extent that such loss damage costs and expenses are due to the negligence of the Company.
5.9 Save with respect to conditions and warranties imported herein by any statute or other like enactment these conditions constitute the entire agreement between the parties. Any information concerning the Goods (including prices) contained in any catalogue. Price list or publicity material is an indication only and no such information shall be binding on the Company.
6. PRICE
6.1 The price of Goods is exclusive of VAT or any similar tax which shall be charged at the rate in force at the date of invoice.
6.2 The price of the Goods shall be the Company’s quoted price, or where no price has been quoted the price listed in the Company’s current price list. All prices quoted are subject to increases which are beyond the Company’s control and valid for 7 days only or longer at the Company’s discretion or until earlier acceptance by the customer.
6.3 The Company reserves the right to increase the price of the Goods upon reasonable notice to the customer before delivery to reflect any increase in the cost to the Company which is due to any increase in the cost of labour materials or any delay caused by the customer.
6.4 The Company’s quoted prices provide fifteen minutes on site for discharging or loading materials. Where the company’s vehicles are subject to delay beyond these terms, the company will make an additional charge based on 15minute intervals at its scheduled rate.
6.5 The prices quoted cover delivery on normal working days during normal working hours to the site address specified on the quotation Deliveries made on public holidays or at any other time outside normal working hours cannot be guaranteed and are subject to an extra charge.
7 DELIVERY
7.1 A minimum of 48 hours prior notice of delivery requirements should be given by the customer to the company and while every reasonable endeavour will be made to comply with such requirements no liability for consequential loss) is accepted in the event of the company’s non-compliance with any specific delivery dates or requirements given. For the avoidance of doubt, delivery shall take place when the Goods are delivered to site.
7.2 Deliveries in quantities of less than a full load will be subject to an additional charge included in the rate.
7.3 The Company shall deliver as near to site as a safe hard road (which shall be determined by the Company in its absolute discretion permits). Additional costs arising as a result of delivering off a safe hard road will be at the customers cost. If a vehicle used by the Company delivers or collects Goods or materials to or from a place off a public road, the customer shall indemnify the Company against any resulting damage howsoever caused. The Company shall not be liable for any delay in delivery however caused and whether or not outside the control of the Company.
7.4 Time shall not be of the essence and the customer shall not be entitled to terminate the agreement in the event of late delivery. The Goods may be delivered in advance of the quoted delivery date in which event the company shall give reasonable notice to the customer.
7.5 The customer or authorised employee or agent of the customer shall accept delivery and sign the delivery note. The customer shall be bound by the signature on such notes of any person appearing to the driver of the vehicle to be authorised to sign the same and accept delivery of such materials.
7.6.1 The customer is under a duty to inspect the Goods at the time of unloading, prior to full discharge but nothing in these conditions shall require the customer to break packaging and\or unpack goods which intended to be stored before use. The Company will not be responsible for delivery of wrong product once accepted on inspection or signed delivery. The Company is not responsible for any consequential losses which may arise as a result of the wrong product being delivered.
7.6.2 In the case of cargo goods the Company shall be entitled to deliver 10% more or less than the stipulated quantity.
7.7.1 the customer shall immediately advise the driver and telephone the Company and then advise the Company in writing within two working days of unloading(*the Notice Procedure*) of any claim for short delivery
7.7.2 if the customer fails to follow the Notice procedure the Goods shall be deemed to have been delivered in the weights, product type or quantities shown on the consignment note
7.7.3 if the customer fails to notify the Company within the time limits set out in 7.7.1 above the customer shall not be entitled and irrevocably and unconditionally waives any right to reject the Goods or claim any damages whatsoever for short delivery howsoever caused
7.7.4 the Company’s liability for short delivery is limited to making good the shortage
7.7.5 the customer shall pay the price for the goods delivered
7.8.1 Where it is or would have been apparent on a reasonable inspection that the Goods are not in conformity with the contract or (if the contract is a contract for sale by sample) that the bulk does not compare the sample the customer must follow the procedures set out in clause 7.7.1 above with respect to any claim.
7.8.2 if the customer fails to follow the Notice procedure the Goods will be deemed to have been accepted and the customer shall not be entitled and irrevocably and unconditionally waives the right to reject the Goods.
7.9 in the event that the customer fails to accept delivery of the Goods. The Goods shall be deemed to have been delivered and the risk of destruction or loss or damage to the Goods shall thereupon pass to the customer. The Company shall arrange for storage and insurance of the Goods and the customer shall pay the Company all charges incurred in connection herewith.
8 PAYMENT
8.1 payment shall be due within 30 days of invoice. If the customer fails to make any payment on the due date, then without prejudice to the company’s other rights, the Company shall be entitled to appropriate any payment made by the customer to any Goods supplied under any contract made between the customer and the Company as the Company thinks fit and/or charge the customer interest on the amount unpaid at the rate of 5 percent per annum above TSB Plc base rate from time to time until the full amount is paid.
8.2 The customer shall not be entitled to make any deduction from the price in respect of any set off or counter claim.
8.3 The Company reserves the right in its absolute discretion at any time to insist upon payment by way of cleared funds for Goods before delivery or to demand security for payment before continuing with or delivering any Goods notwithstanding any subsisting agreement to provide credit to the customer.
8.4 If the customer makes any voluntary arrangement with its creditors or becomes subject to an administration order: or becomes bankrupt or goes into liquidation: or the customer ceases or threatens to cease to carry on business: or the company reasonably believes that any of the events mentioned above is about to occur in relation to the customer and notifies the customer accordingly: or in the event of the customer being in breach of any of these conditions: then the company without prejudice to any other right or remedy available to the Company shall be entitled to cancel the contract or to suspend any further delivery under the contract without any liability of the Company to the customer and if the Goods have been delivered but not paid for the price shall become immediately due and payable.
9 TITLE AND RISK
Until the Company has been paid in full for the Goods comprised in this or any other contract between the customer and the Company. The customer holds the Goods in a fiduciary capacity as bailee for the company and
9.1 Title to(and the right to dispose of) the Goods shall remain with the company and the customer shall store the Goods in such a manner that they are clearly identifiable as the property of the Company.
9.2 The customer shall be at liberty to sell the Goods in the normal course of its business provided that any monies so received are held separately on behalf of the Company to whom the customer has a fiduciary duty to account for such monies to the extent of its indebtedness. Notwithstanding the foregoing risk in the Goods will pass to the customer at the time of delivery as evidenced by a delivery note.
9.3 The Company will be entitled to recover the cost of the Goods including VAT even though the ownership in any of the Goods remains with the company.
9.4 The Company shall be entitled at any time to recover any of the Goods in the customers possession to which the company has title and for that purpose the company its servants or agents may with transport as is necessary enter upon the premises occupied by the customer or to which the customer has access and where the Goods may be or are believed to be situated.
10 SPECIFICATION OF GOODS
10.1 It is the customers responsibility to satisfy itself that the Goods supplied in accordance with these conditions are suitable for its requirements. The Company does not profess to have any skill or judgement in relation to the particular needs of the customer and any statement made by the Company’s staff must not be solely relied upon. The customer must satisfy themselves that the goods are as required before full discharge.
10.2 Particles sometimes occurring in natural aggregates may cause discolouration in concrete and the Company is unable to warrant that such discolouration will not occur.
10.3 The Company cannot guarantee the colour of the product for matching due to aggregates being a natural product, which varies by its very nature. Loads rejected due to colour will be subject to a wasted journey charge at the tariff rate.
10.3 Unless agreed by the Company in writing all Goods supplied by the Company to the customer will be supplied on the basis that they are not required for any special purpose different from the usual purpose for which such Goods are supplied and the customer shall be deemed to have full knowledge of the nature and properties on the goods supplied.
10.4 The Company is not responsible for any consequential losses which may arise as a result of the wrong product being delivered.
10.5 In the case of cargo goods the Company shall be entitled to deliver 10% more or less than the stipulated quantity.
11 GENERAL
No forbearance, delay or indulgence by the Company in enforcing any of the terms and conditions of the contract shall prejudice the Company’s right to insist upon strict compliance therewith. Not shall the same constitute a waiver or estoppel