Finch Aggregates Ltd – Conditions of Sale
Version 1.1, April 2021
(a) “the Company” is Finch Aggregates Ltd.
(b) “the Customer” is any party entering into a contract with the Company for the supply of goods.
(c) “Delivery of goods shall be deemed to take place:
(i)where goods are delivered by the Company’s own transport, at the moment when the goods are lifted from the delivery vehicle; or
(ii) where goods are delivered by other means of transport, at the moment when the goods are loaded onto the vehicle used for such transport or placed by the Company into the hands of any courier or delivery service. •
(d)“Act of Insolvency”:means:
(i) the Customer having any distress, execution or other insolvency process levied upon it; or
(i) the Customer making, or offering to make, any arrangements or compromise with creditors, or committing any act of bankruptcy; or
(iii) the Customer having any petition or receiving order in bankruptcy presented or make against it.
(iv) the Customer having a receiver of its property or assets or any part of them appointed;
(e) For the purpose of any term requiring notice, such notice will take effect 24 hours after dispatch by post or electronic transmission and:
(i) if to the Company, must be to a postal address, email address or facsimile number quoted by the Company on its quotation or specifically nominated by the Company for the receipt of notices;
(ii) if to the Customer, will be sent to the Customer’s registered office or such alternative postal address, email address or facsimile number as provided by the Customer on its request for quotation or order, service on one or more of such addresses being deemed satisfactory service of a notice by the Company.
(a) These Terms and Conditions apply to every contract between the Company and any Customer and to all further contracts between the Company and that Customer (until and unless the Company notifies that Customer of revised Terms and Conditions).
(b) No contract arises between the Company and the Customer until the Company accepts the Customer’s order. The Company may accept an order by
(i) communicating such acceptance to the Customer; or
(ii) delivering goods within the meaning of clause 1.
(c) No prior statements made by the Company or the Customer, nor any correspondence between them, are incorporated into any such contract unless separately agreed in writing by the Company.
(d) No representation by or on behalf of the Company by an employee or agent (including but not limited to advice or recommendations as to the quality or suitability for specific purposes of goods supplied by the Company) takes effect unless separately confirmed by the Company in writing and the Customer agrees that it does not enter into any contract in reliance on such representations unless so confirmed.
(e) All drawings, photographs, illustrations, performance data, dimensions, weights and other technical information and particulars of the goods to be supplied are given by the Company in the belief that they are as accurate as reasonably possible but the Customer acknowledges and accepts that they are not incorporated into the contract.
(f) The Customer acknowledges and accepts that the Company may increase its prices after the contract is agreed to reflect any increase in the price it is charged by its suppliers for goods.
(g) Other than in accordance with these terms and conditions, no variation to any contract takes effect unless agreed in writing by a director of the Company.
(h) Any agreed variation in the scope of work will be charged for by the Company at the sum agreed between the parties or, in default of such agreement on price, at the Company’s prevailing rates.
(i) No waiver by the Company of any of these Terms and Conditions or forbearance to enforce any remedy it is entitled to shall prejudice any of the Company’s other rights and remedies or operate as a waiver of any other breach by the Customer under any contract with the Company
(j) Should any of these Terms or Conditions be held to be invalid or unenforceable in whole or in part the validity and enforceability of the remaining part and of the other Terms and Conditions shall not be affected.
(k) The Customer may not assign the benefit of any contract with the Company without the written consent of the Company.
(l) Nothing in these terms and conditions shall affect the statutory rights of the Customer.
(m) Nothing in these terms and conditions shall confer any right upon a third party and the Customer agrees that the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded from any contract to which these terms and conditions apply.
3. Prices and Credit
(a) Offers and prices quoted by the Company are valid for 30 days from the date given.
(b) Subject to clause 3(a), the Company may vary its prices and charges without notice.
(c) Prices are quoted exclusive of VAT and VAT at the prevailing rate will be added to invoices.
(d) Credit will be granted at the sole discretion of the Company. The Company reserves the right to carry out credit checks with Credit Reference Agencies where appropriate before offering credit.
(e) The provision of credit by the Company to the Customer is subject to the Customer’s compliance with clause 4(a) and may be withdrawn by the Company at any time and at the Company’s sole discretion.
(f) Credit accounts will be reviewed periodically and accounts that have not traded for 6 months may have credit suspended or withdrawn.
(g) If credit is withdrawn for any reason the Company shall be entitled to any or all of the remedies under Clause 4(c). •
4. Payment Terms for Credit Customers
(a) Where credit has been granted by the Company in accordance with clause 3(d) then, unless agreed otherwise in advance between the Company and the Customer, in writing, all invoices are strictly net with payment due within 30 days following the month of invoice and time of payments shall be of the essence of the contract.
(b) The Company will issue invoices upon consignment.
(c) If for any reason whatsoever payment is not made when due the Company shall be entitled to:
(i) charge interest and fees in accordance with the Late Payment of Commercial Debts (Interest) Act 1998;
(ii) cancel or suspend any contract with the Customer;
(iii) require the Customer to pay any other sums due to the Company immediately;
(iv) enter into the business premises of the Customer and repossess and remove all of its goods that remain its property under clause 7, and the Customer grants the Company its employees servants and agents a non-revocable licence to enter into its business premises for such purpose.
(d) Payment may be made by:
(ii) BACS transfer to the account specified on the Company’s invoice; or
(iii) Cheque payable to Finch Aggregates Ltd.
(e) The Customer agrees that it shall not be entitled to withhold payment by reason of:
(ii) any re-work or repair whether or not agreed with the Company under these Terms and Conditions.
(iii) set-off or counterclaim in respect of any claim disputed by the Company. •
(f) The Customer agrees to indemnify the Company in respect of the full amount of any fees costs disbursements or expenses incurred (including court fees and the reasonable cost of legal representation) arising from overdue payment by the Customer or any other breach by the Customer of these terms and conditions. •
5. Termination or Suspension •
(a) Without prejudice to any of its other rights the Company may terminate the contract or suspend further deliveries to the Customer in the event of:
(i) the Customer failing to make due payment in accordance with clause 4(a) for any goods supplied; or
(ii) any act of Insolvency relating to the Customer;
(iii) the Company receiving any information indicating that the Customer is or may become unable to pay its debts; or
(b) In the event the contract is terminated under clause 5(a) the Company shall be entitled to any or all of the remedies under clause 4(c).
(c) The Company reserves the right to withhold performance of any of its obligations under the contract if in its sole opinion the Customer’s credit status becomes unsatisfactory.
(d) Any purported termination or cancellation by the Customer will only take effect with the written agreement of the Company and subject to the Customer indemnifying the Company in full for all loss (including loss of profit), cost (including labour and materials), damages, charges and other expenses incurred by the Company as a result of termination. •
6. Delivery and Storage
(a). The Company may at its discretion deliver goods by instalments, in which case each instalment shall be treated as a separate contract for the purpose of any remedy under these terms and conditions.
(b) Any date or time quoted for delivery is given as an estimate only and the Company shall:
(i) not be liable for any loss or damage howsoever arising by any matter beyond its reasonable control from failure to deliver on or by such stated date or at such stated time;
(ii) if found liable for loss or damage arising from failure to deliver on such stated date or at such stated time shall be liable only for loss limited to the excess (if any) over the price of the goods of the cost to the Customer of similar goods in the cheapest available market.
the Customer causes the delivery of goods or any part thereof to be delayed beyond the time when they would otherwise have been delivered; • does not make available a person authorised to sign for a delivery; or • the designated place for delivery is, in the opinion of the Company’s representative, one that it would be unsafe, unlawful or unreasonably difficult to carry out delivery at (including by reason of being unsuitable for the Company’s vehicle) such goods shall be removed to the Company’s premises or other storage facility and stored by the Company at the sole risk and expense of the Customer. • The Customer agrees that any failure of the Company to make any delivery shall not entitle the Customer to cancel or suspend any subsequent or other delivery or contract. •
7. Passing of Risk and Retention of Title
(a) Risk in goods supplied passes to the Customer upon delivery as defined at clause 1.
(b) Notwithstanding the provisions of clause 7(a) as to the passing of risk, goods supplied by the Company shall remain its sole property until the Customer has paid in full the agreed price and all other sums due from the Customer to the Company whether under this Contract or otherwise (including any interest due). Notwithstanding such retention of title, the Company shall be entitled to maintain an action for the price of the goods as soon as payment falls due.
(c) The Customer acknowledges that it is in possession of such goods as bailee for the Company until the sums due in clause 7(b) have been paid in full and shall:
(i) insure such goods to their full market value;
(ii) store or otherwise identify such goods as to show that they retain the property of the Company;
(iii) not mortgage, charge or otherwise encumber or dispose of the goods without the written permission of the Company; and
(iv) give the Company such information about the goods as it may from time to time require.
(d). The Customer agrees that if the Company invokes its right to repossession of its goods under clause 4(c)(iv) the Company shall not be liable for any damage or injury reasonably done in the course of so doing to any other property owned by or in possession of the Customer to which the Company’s goods have been attached or in which they have been incorporated. •
(a) Returns for credit of goods supplied in accordance with the Customer’s order is at the sole discretion of the Company.
(b) Any request by the Customer to return goods for credit must be made within 7 days of receipt and the goods must be dispatched by the Customer within 14 days of receipt.
(c) Goods supplied to the special order of the Customer (including items ordered from third party suppliers to the specification of the Customer) cannot be returned for credit.
(d) Return of goods is subject to a handling and restocking charge as determined by the Company and payable by the Customer in accordance with clause 4(a) and subject to any or all the remedies under clause 4(c).
(e) Goods returned to the Company are to be returned in a condition fit for resale, in default of which the Company may at its discretion reduce or waive any credit to the Customer.
(a) No claim for defect, damage in transit, short delivery or any other deficiency may be made unless:
(i) such deficiency is notified in writing within three business days of delivery;
(ii) the Company is permitted to verify the same within 7 days of notification of the claim.
(b) In the absence of any such notification within the period set out at clause 9(a) the Customer shall be deemed to have accepted the goods.
(c) Where goods are damaged in transit (including damaging to packaging) the Customer should use its best endeavours to:
(i) obtain photographs of the damage as soon as it is identified;
(i) where damage is apparent on delivery, obtain acknowledgment of such damage from the courier or other person making delivery.
(d) The Customer agrees that if it uses or consumes any part of a delivery it is deemed to have accepted that delivery and to have waived any claim or right to claim against the Company in respect of it. •
10. Warranties and Liability •
(a) The Company warrants that goods will correspond to their specifications as at the time of confirmation of order.
(b) The Company will replace, re-work or give credit to the Customer for any goods which do not comply with the warranty at clause 10(a) and which are accepted by the Company for replacement, re-work or credit.
(c) No claim under clause 10(a) may be made unless:
(i) any claim in respect of the specification of goods is notified in writing the time period set out at clause 9(a); and
(ii) the Company is permitted to verify the same within 7 days of notification of the claim.
(d) In the absence of notification in accordance with clause 10(c) the Customer shall be deemed to have accepted the goods.
(e) Other than as set out in clause 10(a) or as expressly confirmed in writing by the Company:
(i)no warranty condition or representation express or implied as to description, quality or suitability of any goods hereby sold is given by the Company or deemed to have been given or implied and (to the extent permitted by statute) any statutory or other warranty condition or representation whether express or implied is hereby excluded;
(ii) the Company accepts no liability whatsoever for any loss or damage whether consequential or direct and whether suffered by or occasioned to the Customer the employees or agents of the Customer or a third party which may arise after the delivery of the goods.
(iii) If goods supplied under the contract are supplied by a third party subject to that third party’s warranty, the Customer’s remedy for any defect lies against that third party rather than against the Company.
(iv) If goods are supplied for a specific purpose of the Customer, no warranty is given by the Company as to fitness for such purpose irrespective of knowledge of it.
(f) The Company’s liability to the Customer is limited to the total price paid for the goods. •
11. Force Majeure
In the event of war, invasion, act of foreign enemy, hostilities (whether war has been declared or not), civil war, rebellion, revolution, military or usurped power, act of God, force majeure, epidemic or any other matter or occurrence beyond the control of the Company or the failure on the Part of the Customer to make due and timely supply of all materials and/or data and specifications as may be required and agreed as terms of the acceptance of any order by the Company, the Company shall be relieved of all liabilities incurred under the contract wherever and to the extent to which the fulfilment of such obligations is prevented, frustrated or impeded as a consequence of any such event or by the Statute Rules regulations Orders or Requisitions issued by any Government Department Council or other duty constituted authority or from strikes, lock-outs or other withdrawal of labour force, breakdown of plant or any other causes (whether or not of a like nature) beyond the Company’s control. •
12. Law and Jurisdiction
(a) The contract is deemed to be made under and in accordance with English law.
(b) Any dispute under the contract shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
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