Terms
These terms and conditions ("Conditions") apply to all transactions for the sale of any goods being either Formwork Products (as defined below), in which case the term "Seller" means Anchor Bay Formwork Products Limited (Company number: 06254123) or being Construction Products (as defined below), in which case the term "Seller" means Anchor Bay Construction Products Limited (Company number: 03788609) each of whose principal trading address is Unit B, Centurion Business Park, Centurion Way, Erith, Kent DA18 4AF.
1 DEFINITIONS AND INTERPRETATION
1.1 In these Conditions unless the context requires otherwise the following words have the following meanings:
"Buyer" the person or organisation who purchases Goods from the Seller.
"Construction Products" any and all construction related products sold by the Seller other than Formwork Products.
"Contract" any contract between the Buyer and the Seller for the purchase of Goods incorporating these Conditions and the Order.
"Formwork Products" the formers and associated products used for forming of circular or bespoke shaped reinforced concrete columns including those products sold under the brand names of ‘Monotub’ or ‘Reltec’.
"Goods" any products ordered by the Buyer from the Seller or to be supplied by the Seller to the Buyer whether Formwork Products or Construction Products.
"Losses" any and all actions, awards, costs, claims, damages, losses (including without limitation any direct or indirect consequential losses), expenses, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities.
"National Specification" the National Structural Concrete Specification for Building Construction as published by the British Cement Association (in the then current edition as at the time of delivery of the Goods to which it relates).
"Order" an order placed by the Buyer with the Seller for the supply of the Goods whether made by telephone, fax or e-mail.
"VAT" value added tax and any such tax amending or replacing the same or the equivalent taxation in the relevant jurisdiction.
"Working Day" any day from 8:00 am until 5:00 pm which is not a Saturday, Sunday or a statutory public holiday in England.
1.2 In these Conditions:
1.2.1 reference to any gender includes all genders;
1.2.2 reference to the singular shall include the plural and vice versa;
1.2.3 words indicating a person shall include bodies of persons whether corporate or incorporate;
1.2.4 reference to a Clause is to the relevant Clause in these Conditions;
1.2.5 the headings are for convenience only and shall not affect their interpretation; and
1.2.6 reference to any statute or statutory provision includes a reference to the same as from time to time amended, extended, re-enacted or consolidated and all subordinate legislation from time to time made under it.
2.1 The Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer's Order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 Each Order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions.
2.4 No Order placed by the Buyer shall be deemed to be accepted by the Seller until a written acknowledgement of order is issued by the Seller or (if earlier) the Seller delivers the Goods to the Buyer.
2.5 Any quotation is given on the basis that no Contract shall come into existence until the Seller despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of five (5) Working Days only from its date, provided that the Seller has not previously withdrawn it.
2.6 A read receipt or delivery receipt of an email will not amount to written confirmation of the Seller’s acceptance of the Buyer’s Order.
2.7 The Seller may refuse to accept any Order placed by the Buyer and will have no liability to anyone else in such circumstances.
3.1 If any samples or test work are produced by the Seller these will be carried out at the cost of the Buyer unless otherwise agreed in writing.
3.2 If the Buyer approves any sample or test work produced by the Seller, the Buyer shall have no claim in respect of nor any right to reject any Goods which:
3.2.1 are of the same specification, quality and fitness for purpose as the sample or test work; or
3.2.2 when compared with the sample or test work are within the tolerances applicable to the use of the Formwork Products as set out in the National Specification.
4.1 Whilst every endeavour is made to ensure accuracy, details in brochures, catalogues and price lists and on the Seller’s website or any advertising material and/or any specification are intended as guidance only and are only intended to give a general approximation of the Goods and nothing contained in them forms parts of these Conditions.
4.2 The Buyer is responsible for ensuring the fitness for purpose of the Goods for the Buyer’s application and purpose.
4.3 All terms, conditions, warranties and representations (whether implied or made expressly) whether by the Seller its servants or agents or otherwise (other than those express warranties set out in these Conditions) relating to the quality and/or fitness for the purpose of the Goods are excluded to the fullest extent permitted by law.
4.4 Any specification, moulds, dies, materials and/or equipment together with the copyright, design rights and/or any other intellectual property rights in all specifications, data and materials whether supplied by the Buyer to the Seller or specifically produced and/or used by the Seller for the Buyer in connection with the Contract, shall be the exclusive property of the Seller.
4.5 The Buyer shall check and ensure that any Order and any specification is accurate and adequate for the provision of the Goods and the Seller shall have no liability to the Buyer for errors in any specification or details provided by and/or approved by the Buyer.
4.6 The Buyer shall give the Seller any information necessary for the Seller to perform the Contract.
5.1 As part of the Seller's policy of the development of its products improvements are made in design and raw materials from time to time and the Seller reserves the right to supply substitute materials, components and units in place of the products ordered (and which shall thereby become 'the Goods' for the purposes of the order) at no greater price than that specified in the relevant Order.
5.2 The Seller reserves the right to make any changes to the Order and/or the Goods which are required from time to time by law or any applicable safety or manufacturing requirements provided such changes do not materially affect the quality and/or performance of the Goods.
6.1 If the Goods are being delivered to an address within the United Kingdom mainland, delivery of the Goods will be made by the Seller delivering the Goods to the nearest hard road surface to the address set out in the Order. If the Goods are being delivered to an address outside the United Kingdom mainland, delivery of the Goods will be made by the Buyer collecting the Goods from the Seller’s premises within five (5) Working Days from the Seller notifying the Buyer that the Goods are ready for collection.
6.2 The Buyer shall provide at its own cost any equipment (including safety equipment) and/or adequate manual labour necessary to unload the Goods when delivered by the Seller.
6.3 When Goods are collected by the Buyer from the Seller’s premises the Seller will make available sufficient equipment and personnel to load the Goods onto the vehicle of the Buyer or the Buyer’s carrier (in which circumstances the Seller shall be entitled to deem the Buyer’s carrier as authorised by the Buyer to sign the relevant delivery note for receipt of the Goods). The Seller’s satisfaction of this obligation is despite risk in the Goods passing to the Buyer in accordance with clause 13.1 below and the Seller shall have no liability for any loss or damage to the Goods occurring after risk has passed, including without limitation during loading of the Goods.
6.4 The Seller will use its reasonable endeavours to achieve delivery by any date specified in the Buyer’s Order but each such date is to be treated as an estimate only and time shall not be of the essence of the Contract.
6.5 The Seller shall not be liable for any Losses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence), nor shall the Buyer have any right to reject or object to the Goods nor to rescind the Contract for late performance unless the due date for performance has passed and the Buyer has served on the Seller a written notice requiring the Contract to be performed giving the Seller no less than ten (10) Working Days in which to do so and the notice has not been complied with.
6.6 The Seller may deliver the Goods by separate instalments and each delivery shall constitute a separate and distinct contract which the Seller shall be entitled to invoice separately. Failure by the Seller to deliver any instalment shall not entitle the Buyer to treat the Contract as a whole as repudiated and/or terminated.
6.7 If the Buyer fails to take delivery of the Goods then without prejudice to any other right or remedy available to the Seller the Seller may:
6.7.1 withhold delivery of any other Goods;
6.7.2 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; and/or
6.7.3 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.
6.8 If the Buyer fails to take delivery of the ordered Goods the Buyer will indemnify and keep indemnified the Seller against any and all Losses (including increased administration and legal costs on a full indemnity basis) incurred and/or suffered by the Seller as a result.
7 NON-DELIVERY
7.1 The quantity of any consignment of Goods as recorded by the Seller on despatch from the Seller’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
7.2 The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller’s negligence) unless the Buyer gives written notice to the Seller of the non-delivery within two (2) Working Days of the date when the Goods would in the ordinary course of events have been received.
7.3 Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
8 CANCELLATION
8.1 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the Seller’s prior written agreement and on terms that the Buyer shall indemnify and keep indemnified the Seller in full against any and all Losses (including the cost of all labour and materials used) incurred and/or suffered by the Seller as a result of cancellation.
9.1 The Seller will be under no obligation to do so but may comply with a reasonable request by the Buyer to postpone delivery of the Goods.
9.2 If delivery of the Goods is postponed at the Buyer’s request the Buyer shall indemnify and keep indemnified the Seller in full against any and all Losses (including increased administration and legal costs on a full indemnity basis) suffered and/or incurred by the Seller as a result and shall also pay for the Goods as if delivery had not been postponed.
10.1 Unless otherwise agreed in writing the price of the Goods shall be as stated in the Order.
10.2 The price for the Goods shall be exclusive of any VAT and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, delivery charges and any additional costs of carriage as a result of a request by the Buyer for expedited delivery all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
10.3 The Seller’s prices are subject to adjustment to take account of any variation in the Seller’s costs including (but not limited to) variations in wages, the cost of materials, exchange rate fluctuations, alterations of duties and other costs since the date of the Seller’s quotation or (if no quotation is issued) the Buyer's Order. The Seller accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted. The invoice so adjusted shall be payable as if the price set out in it were the original contract price.
11.1 Unless otherwise agreed by the Seller in writing, the Buyer will pay the price for the Goods in pounds sterling upon presentation of the invoice and the Seller shall be entitled to issue such invoice on or at any time after delivery of the Goods or in the event of the Buyer failing to accept delivery the due date for such delivery.
11.2 Time for payment shall be of the essence of the Contract.
11.3 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy the Seller may have the Seller shall be entitled to:
11.3.1 cancel the Order and suspend delivery of any other Orders;
11.3.2 appropriate any payment made by the Buyer to such Order as the Seller may think fit;
11.3.3 charge interest from the due date until payment in full is made (both before and after judgment) on the amount unpaid at whichever is the greater rate of 8% (eight percent) over the base rate of the Seller’s bank from time to time, compounded with monthly rests, or the amount prescribed by law.
12.1 The Seller may set a credit limit for the Buyer and any changes the Seller makes to the Buyer’s credit limit will be notified to the Buyer from time to time.
12.2 The Seller reserves the right to refuse to accept any Orders and/or to suspend delivery of any Goods if such Goods would result in the Buyer exceeding its credit limit or if the credit limit has already been exceeded.
13.1 Risk in the Goods and of damage to or loss of the Goods shall pass to the Buyer:
13.1.1 in the case of Goods to be delivered at the Seller’s premises at the time when the Seller notifies the Buyer that the Goods are available for collection; or
13.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods the time when the Seller has tendered delivery of the Goods.
14.1 Despite delivery of the Goods and risk having passed to the Buyer, title and ownership in the Goods shall remain with the Seller until it has received payment in full and cleared funds for:
14.1.1 the Goods; and/or
14.1.2 all other goods and services agreed to be provided by the Seller to the Buyer under this and any other agreement.
14.2 Until such time as title in the Goods passes to the Buyer the Buyer shall:
14.2.1 hold the Goods as the Seller’s fiduciary agent and bailee;
14.2.2 keep the Goods stored in a secure and satisfactory condition separate from all other goods of the Buyer and/or third parties and clearly marked in such a way as to be readily identifiable as the Seller’s property;
14.2.3 not alter, remove, destroy or obscure any identifying marks, logos or packaging on or relating to the Goods; and
14.2.4 keep the Goods insured for the price at which the Goods were sold to the Buyer against all insurable risks and the Buyer shall hold any proceeds of such policy of insurance in relation to the Goods on trust for the Seiler.
14.3 The Buyer may resell the Goods prior to title and ownership having passed provided such sale is in the ordinary course of the Buyer’s business at full market value and that such sale is a sale of the Seller’s property on the Buyer’s own behalf acting as principal.
14.4 The Seller shall be entitled to recover payment for Goods despite ownership not having passed.
14.5 The Buyer grants the Seller’s employees and/or agents the right to enter the Buyer’s premises or any other premises where the Goods are or may be stored in order to confirm the Buyer’s compliance with this Clause 14 (Title) and/or, if the Buyer’s right to possession has ceased, to recover the Goods.
14.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller and if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) immediately become due and payable.
Neither party shall use and/or disclose any confidential information which is acquired by it about the other party’s business and/or given by one party to the other party and/or generated by one party using the other party’s confidential information except in the proper performance of this Contract.
16.2 Subject to Clauses 16.3 and 16.4, the Seller warrants to the Buyer that on delivery the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and, in the case of Formwork Products, as such quality is determined in consideration of the tolerances applicable to the use of products such as the Formwork Products as set out in the National Specification.
16.3 The Seller shall not be liable for a breach of the warranty in Clause 16.2 unless:
16.3.1 the Buyer has opened the packaging and examined the Goods within twenty-four (24) hours of delivery and, in the case of Formwork Products, has also poured a test panel or sample in accordance with the Seller’s instructions in advance of making use of the Formwork Products in the manner intended;
16.3.2 the Buyer gives written notice of the defect to the Seller, and, if the defect is as a result of damage in transit to the carrier, within twenty-four (24) hours of the time when the Buyer discovers or ought to have discovered the defect; and
16.3.3 the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business or procures sufficient access to the premises at which any alleged defective Goods are held to enable inspection. If the returned Goods prove to be defective the Seller shall reimburse the Buyer’s costs of returning the Goods.
16.4 The Seller shall have no liability under Clause 16.2 in respect of:
16.4.1 any defect in the Goods arising from the Buyer making any further use of such Goods after the Buyer discovered or ought reasonably to have discovered the alleged defect or after having given such notice as referred to in Clause 16.3;
16.4.2 any defect in the Goods arising from the Seller’s compliance with any instructions and/or specification supplied and/or approved by the Buyer;
16.4.3 any faults and/or defects caused by fair wear and tear, wilful damage, abnormal working conditions, failure to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice, misuse, alteration and/or repair of the Goods without the Seller’s prior written approval and/or improper maintenance or negligence on the part of the Buyer or a third party;
16.4.4 Goods in respect of which the total price has not been paid by the due date for payment; and
16.4.5 those parts, materials and/or equipment which are not manufactured by the Seller in respect of which the Buyer shall only be entitled to the benefit of such warranty or guarantee as is given by the manufacturer to the Seller.
16.6 Any work carried out by the Seller, including but not limited to a visit to inspect the Goods, which is not covered by the warranty in Clause 16.2 will be charged for at the Seller’s normal rate on a time and materials basis.
17.1 The Seller shall have no liability to the Buyer for defective Goods to the extent the defect is caused or contributed to by the Buyer and/or by the Buyer’s continued use of defective Goods after the defect has become apparent or suspected or should reasonably have been apparent or suspected by the Buyer.
17.2 The Seller shall have no liability to the Buyer for defective Goods, Goods not despatched or Goods damaged or lost in transit unless the event is notified to the Seller within the appropriate time limits set out in these Conditions.
17.3 The Buyer shall give the Seller a reasonably opportunity to remedy any matter for which the Seller is liable before the Buyer incurs any costs and/or expenses in remedying the matter itself. If the Buyer does not do so the Seller shall have no liability to the Buyer in relation to such matter.
17.4 The Seller shall have no liability to the Buyer for any:
17.4.1 loss of profits;
17.4.2 depletion of reputation and goodwill;
17.4.3 pure economic losses;
17.4.4 special damages;
17.4.5 aggravated, punitive and/or exemplary damages;
17.4.6 consequential and/or indirect losses; and/or
17.4.7 interruption of business, loss of business, contracts and/or opportunity.
17.5 The Seller's total liability to the Buyer in connection with this Contract shall not exceed:
17.5.1 £1,000,000 (one million pounds) in relation to any Losses arising from or in connection with Construction Products; or
17.5.2 £250,000 (two hundred and fifty thousand pounds) in relation to any Losses arising from or in connection with Formwork Products.
17.6 Except for the financial cap on liability which shall apply only once in respect of all types of liability, each of the limitations and/or exclusions set out in this Contract shall be deemed to be repeated and apply as a separate provision for each of:
17.6.1 liability in contract (including fundamental breach);
17.6.2 liability in tort (including negligence);
17.6.3 liability for breach of statutory duty; and
17.6.4 liability for breach of common law and/or any other legal basis.
17.7 Subject as expressly provided in this Contract all warranties, conditions or other terms Implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law,
17.8 Nothing in this Contract shall exclude or limit the Seller’s liability for death or personal injury caused by its own negligence, any liability for fraud or fraudulent misrepresentation or any other liability which the Seller is not permitted to exclude or limit as a matter of law.
17.9 The limitations in this Contract are necessary in order to allow the Seller to provide the Goods at its current prices and reflect the extent to which the Seller is able to obtain the relevant insurances without knowledge or regard to the specific uses that the Buyer may make of the Goods. The Buyer is strongly advised to insure against any and all potential Losses in connection with the Goods and the Buyer’s use of them.
18.1 Either party may immediately terminate the Contract by written notice if the other party:
18.1.1 breaches the terms of the Contract (and if remediable the breach has not been remedied within ten (10) Working Days of receiving notice requiring it to be remedied);
18.1.2 persistently breaches any one or more terms of the Contract;
18.1.3 fails to make any payment when due;
18.1.4 is declared or becomes insolvent or bankrupt, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, take or suffer any similar action in any jurisdiction or any step is taken (including without limitation the making of an application on the giving of any notice) by it or by any other person in respect of any of these circumstances (except for the purposes of amalgamation or reconstruction and in such manner that the resulting company effectively agrees to be bound by or assume the obligations imposed on that other party under this Contract); and/or
18.1.5 ceases or threatens to cease to carry on business.
18.2 If the Seller has the right to terminate the Contract:
18.2.1 the Seller may withhold delivery of any undelivered Goods and stop any Goods in transit;
18.2.2 the Seller may terminate the Buyer’s right to re-sell and retain possession of any of the Goods owned by the Seller;
18.2.3 the Seller may enter the Buyer’s premises or any other premises where the Goods are or may be stored and may repossess and sell or dispose of any Goods owned by the Seller to discharge any sums owed by the Buyer to the Seller under the Contract or any other agreement with the Buyer; and
18.2.4 all monies owed by the Buyer to the Seller shall immediately become due and payable.
19.1 The Contract constitutes the entire agreement between the parties and supersedes any previous agreement between the parties relating to its subject matter.
19.2 The parties agree that they have not entered into the Contract in reliance on any promise, assurance, representation, warranty, details and/or specification (whether in writing or not) that is not expressly set out in the Contract. Nothing in the Contract shall exclude liability for any fraudulent statement and/or act made prior to the date of the Contract.
19.3 Each of the parties acknowledges and agrees that the only remedy available to it for breach of the Contract shall be for breach of contract under the terms of the Contract and it shall have no right of action against any other party in respect of any promise, assurance, representation, warranty, details and/or specification (whether in writing or not) that is not expressly set out in the Contract.
19.4 No variation to these Conditions or the Order shall be binding unless agreed in writing by a director of each party.
19.5 Neither party shall be liable for any delay or failure to perform its obligations under the Contract (save in respect of payment of monies payable for the Goods) as a result of reasons beyond its reasonable control including but not limited to acts of God, war, explosion, flood, fire, governmental actions, Seller’s delays and difficulties in obtaining raw materials, strike, lock-out, or other form of industrial action (other than a strike, lock-out or other form of industrial action induced by the party so incapacitated), power breakdown or machinery breakdown lasting more than one (1) Working Day and any other similar events. If the event causing the delay or failure continues in excess of one (1) month the Contract may be terminated at the option of the party not affected by the event.
19.6 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
19.7 Any invalidity, illegality or unenforceability of any or any part of a provision of the Contract shall not affect the validity, legality or enforceability of the remaining provisions of the Contract.
19.8 The Buyer shall not assign, transfer, dispose of or sub contract (or purport to do any of the above in respect of) any of its rights or obligations under the Contract without the prior written consent of the Seller.
19.9 The Seller shall be entitled to perform any of its obligations under the Contract through any member within the same group of companies.
19.10 None of the terms and conditions of the Contract shall be enforceable by any person who is not a party to it. This shall not apply to any company within the same group of companies as the Seller who the Seller consents to being able to enforce the Contract in addition to the Seller. The rights of any third party to enforce the Contract may be varied and/or extinguished by agreement between the parties without the consent of any third party.
19.11 The Contract shall be governed by the laws of England and the parties agree to submit to the non-exclusive jurisdiction of the English Courts.