Terms and Conditions of Sale
1.1 In these Terms and Conditions: “the Buyer” shall mean the legal person who buys or agrees to buy goods and services from the Seller; “these conditions” shall mean these terms and Conditions and any special terms agreed in writing; “Goods” shall mean all products, equipment and services which the Buyer agrees to buy from the Seller; “Price” means the pricing of the Seller from time to time or as agreed between the parties. “the Seller” means Boughton Loam Limited of Telford Way Industrial Estate, Kettering NN16 8UN; “Service” means the service to be provided by the Seller for the Buyer
1.2 All agreements by which the Seller agrees to supply goods and services to the Buyer shall be subject only to these Conditions notwithstanding any variation or attempted variation of these Conditions made by the Buyer in its order form, confirmation of order or similar document or otherwise.
1.3 All orders by the Buyer for goods or services shall for all purposes be deemed to be an offer to purchase goods and services pursuant to these Conditions and shall be conclusive evidence of the Buyer’s acceptance of these Conditions.
1.4 No cancellation of any order by the Buyer shall be valid unless made in writing and accepted in writing by the Seller. Nothing in these Conditions shall affect the statutory rights of any consumer.
1.5 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller and signed by a director of the Seller.
2 The Goods and Services
2.1 All descriptions, specifications, drawings and other particulars relating to the goods and services in any catalogues, leaflets, brochures or other documents are for illustrative purposes only and do not form part of the agreement between the Seller and the Buyer.
2.2 Goods supplied will be in accordance with manufacturers normal designs and specifications current at the date of manufacture or delivery and the supply by the Seller of goods differing from any contractual or pre-contractual specifications or descriptions shall not be a breach of the agreement between the Seller and the Buyer in so far as the goods are of approximately equivalent performance and specification.
2.3 The Seller may from time to time make changes in the specification of the goods and services which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the goods and services.
2.4 The Buyer recognises and acknowledges that the specification, properties, volumes, density, bulk and weight of natural products may vary due to natural phenomenon for which the Seller is not liable.
2.5 The Buyer acknowledges that soil and soil based products are natural and that variations will occur. In the event that certificates are provided it is acknowledged and understood by the Buyer that such certificates are based on independent analysis of a sample taken in good faith and that the certified results pertain to the actual sample analysed. The Buyer further acknowledges that the product sold may vary to the sample analysed.
2.6 The Buyer shall take delivery of the goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that: such discrepancy in quantity shall not be unreasonable; the price shall be adjusted pro rata to the discrepancy.
2.7 All terms, conditions and warranties (whether implied or made expressly) whether by the Seller, its servants or agents or otherwise relating to the quality and /or fitness for purpose are excluded.
2.8 The Seller may at any time without notifying the Buyer make any changes to the service which are necessary or which do not materially affect the nature or quality of the service.
3.1 The time for and means of delivery of the goods are not of the essence. The agreed dates for delivery are estimates only and a failure by the Seller to comply with them shall not be a breach of these Conditions. The Seller shall not be liable for any loss or damage whatever due to a failure to deliver or transport the goods (or any of them) promptly or at all. 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 tended at a reasonably time of the estimated dates of delivery.
3.2 The goods shall be at the Buyer’s risk from the time that they are ready for despatch or collection if they are to be collected or on the date that the Seller delivers the goods to site.
3.3 Where the goods are installed or delivered by the Seller its servants or agents it is the Buyer’s sole responsibility unless otherwise agreed to obtain and make available necessary access and pay all licences, permits and such like as are necessary for the works to be undertaken by the agreed date and to provide all the necessary access, information and co-operation to enable the works to proceed from that date. In the event that the Buyer has so failed, the Buyer shall be liable for all additional costs and expenses incurred by the Seller its servants or agents.
3.4 The Seller accepts no liability for any loss and damage suffered to property whilst delivering goods off the public highway. The vehicle is invited off the public highway onto private property at the Buyer’s sole risk. The Buyer’s attention is drawn to susceptible surfaces which include tarmac, block paved and patterned imprinted concrete
driveways. The Buyer is solely responsible for pointing out hazards including but not limited to low lying cables, narrow entrance pillars and man hole covers to the driver prior to delivery.
3.5 The Buyer shall be deemed to have accepted the goods 24 hours after delivery. After acceptance the Buyer shall not be entitled to reject goods that are not in accordance with the contract.
3.6 The Buyer agrees that the Seller will not be liable whatsoever in respect of goods that have been contaminated, modified or tampered with in any respect whatsoever and in any event after delivery.
3.7 If the Buyer properly rejects any of the goods which are not in accordance with the contract the Buyer shall nonetheless pay the full price for such goods unless the Buyer within 24 hours of delivery gives written notice of rejection to the Seller and at the Buyer’s cost returns such goods immediately to the Seller.
3.8 No goods delivered to the Buyer that are in accordance with the contract will be accepted for return without the prior written approval of the Seller on terms to be determined at the absolute discretion of the Seller. Goods returned without the prior written approval of the Seller may at the Seller’s absolute discretion be returned to the Buyer or stored at the Buyer’s cost without prejudice to any rights or remedies the Seller may have. The Buyer shall not be entitled to reject goods that are in accordance with the contract.
3.9 Acceptance of returns shall be at the sole discretion of the Seller and credit notes, where appropriate, will be issued 30 days following the end of the following month of the return. Such acceptance will be on an individual basis and will be confirmed by a letter from the Seller signed by one of its directors. Credits will be calculated on a percentage of the actual cost of the goods having deducted all other costs for example those relating to the set up, administration, packaging, insurance, delivery and like expenses (“the net cost of the goods”, the extent of the percentage will depend on the re-saleability of the goods.
4 Property in the Goods
4.1 Notwithstanding risk in the goods passed to the Buyer the goods shall remain the sole and absolute property of the Seller and title to and legal and equitable ownership of the goods shall not pass to the Buyer until payment is received by the Seller of all monies due from the Buyer to the Seller in respect of all goods and services supplied by the Seller to the Buyer. The Buyer acknowledges that until such payment is made in full it is in possession of the goods solely as a fiduciary for the Seller.
4.2 Until title to the goods passes to the Buyer, the goods shall be kept separate and distinct from all other property of the Buyer and of third parties and in good condition and stored in such a way as to be clearly identifiable as belonging to the Seller.
4.3 The Seller may for the purpose of recovering its goods enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
4.4 The Seller shall be entitled to a general lien on all goods of the Buyer in the possession of the Seller, its servants or agents (including goods of the Buyer which have been paid for) for the unpaid price of all goods and services sold to the Buyer by the Seller under this or any contract.
5 Price and Payment
5.1 The price is payable within 30 days of delivery of the goods or completion of the contract or of the date of the invoice, whichever is the later, to approved accounts only, or cash with order. As the goods are produced to order, if the Buyer does not take delivery when requested, the price is payable 7 days after the Seller has requested the Buyer to take delivery, together with a 15% handling charge for the care and storage of the goods payable at the absolute discretion of the Seller.
5.2 Time for payment is of the essence. If payment is not made as agreed the Seller may require the Buyer to pay interest at 5% above the base rate of the banker’s of the Seller on a compound basis from the date it became due until payment is received in full
5.3 If payment should not be made when due the Seller will be entitled to charge (in addition to interest and any legal costs ordered by the Court and without prejudice to any other rights or remedies available to the Seller) the sum of £100 plus VAT by way of liquidated damages as a contribution to the administrative costs incurred by the Seller.
5.4 Unless otherwise stated all payments are to be made in Sterling to the Seller’s address as stated on the invoice. The price may be increased by the Seller at its discretion to take account of fluctuations in exchange rates or increases in costs e.g. fuel, or taxes or otherwise.
5.5 The Seller may vary its standard charges from time to time by giving written notice to the Buyer.
5.6 The Buyer agrees that the Seller is entitled to levy additional charges and fees for services beyond those initially specified and for further work and services undertaken relating to for example the Buyer’s lack of instructions, improper returns, inaccuracy of any material, or additional reporting requirements in accordance with the Seller’s standard charges in force from time to time.
5.7 If payment is not made when due or if the Buyer ceases to trade or enters into any arrangement with its creditors or shall become insolvent or has a Receiver or Administrative Receiver appointed or a petition is presented or a resolution passed for the winding up of the Buyer (if the Buyer is a company), the Buyer shall then be deemed to
have repudiated any agreements it may then have with the Seller who shall be entitled without prejudice to any other rights or remedies available to it to stop any goods in transit and to cancel any further deliveries and to suspend any or all of the services.
5.8 The price shall be payable without any deduction or set-off whatsoever.
6 Warranties and Liability
6.1 Where the Buyer rejects any goods then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such goods and services. Where the Buyer accepts or has been deemed to have accepted any goods then the Seller shall have no liability to the Buyer in respect of those goods and services.
6.2 The Seller shall not in any way be liable for any financial consequential or indirect loss suffered by the Buyer or any third party whether such loss arises from breach of duty in contract or tort in any other way including without limitation to the generality of this exclusion, loss of profits, economic loss, loss of goodwill, loss of contracts, loss of data, damage to the property of the Buyer or anyone else
6.3 The Seller shall have no liability to the Buyer for any loss, damage, costs, expenses or other claims for compensation arising from any material or instructions supplied by the Buyer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non arrival, or any other fault of the Buyer.
6.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the net price of the goods provided of course that those goods and services have already been paid for.
6.5 Save as herein specifically provided and save to the extent that the same cannot by statute be excluded all conditions and warranties or representations expressed or implied statutory or otherwise in relation to the goods are hereby excluded.
6.6 The Seller may assign or sub-contract all or part of its rights and obligations without the Buyer’s consent.
6.7 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.
7.1 The Seller shall not be liable to the Buyer for any failure to perform its obligations due to any circumstances beyond its reasonable control (including without limitation strikes, lock-outs, industrial disputes, riots, civil disturbances, war or war like activity, embargoes, fire, explosion, flood, power failure, failure of equipment or failure or defects in any hardware or software owned or supplied by third parties, difficulties in obtaining raw materials, labour, fuel, parts or machinery, or natural causes) and in such event the Seller may elect by written notice to cancel any agreement with the Buyer or elect that the time for performance shall be extended until such time as the Seller can reasonably effect performance.
7.2 If the Buyer shall be in breach of any of these Conditions then failure by the Seller to require the Buyer to rectify the same shall not create any assumption that such a breach has been waived by the Seller.
7.3 A notice required or permitted to be given by either party to the other under these terms shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
7.4 All contracts shall be governed by and construed in accordance with English law.