a) "Conditions" mean the conditions set out in this document and includes any special terms and conditions expressly agreed in writing between the Company and the Customer; b) "The Company" means RECO Readymix Limited (registered in England and Wales with Company No: 11839500) whose registered office is Henwood House, Henwood, Ashford, Kent, TN24 8DH; c) "Contract" means the contract between the Company and the Customer for the supply and purchase of materials or products which includes these Conditions; d) "Customer" means the person, firm or company who has agreed to purchase the materials or products from the Company as set out on the Order; e) "Consumer" has the meaning given to it by the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contract Regulations 1994; f) "Specification" means any specification for the Materials, including any related plans and drawings, that is agreed by the Customer and the Company; ts and services, together with any quantity, price, delivery, and/or other terms and conditions (in addition to these terms and conditions) offered by the company to the customer; h) "Price" means the amount payable by the Customer to the Company pursuant to the Contract in respect of the supply of the Materials (as detailed by Clause 3 (Price)); i) "Materials" means the goods to be supplied by the Company to the Customer as set out in the Order; j) "Order" means the Customer's order for the materials or products, as set out in the Customer's purchase order form, the an intention to purchase the product , as the case may be; k) "Destination" means the site and the point of unloading to which the Materials are to be delivered as set out in the Order (or such other location as the parties may agree); l) "Delivery Ticket" means the proof of delivery/collection ticket to be signed by the Customer and returned to the Company setting out various details including the Customer's details and a description of the product type and quantity, delivery date and purchase order number; m) "Minimum Loads" means, for readymix concrete, 8 cubic metres of the same mix to the same site and, for all other Materials, 20 tonnes; n) "Additional Charges" means the additional charges provided for within our quotation/offer or laid out within this document. o) "Losses" means any damages whatsoever whether direct, indirect or consequential (including any liability to any third party, pure economic loss, loss of profits, loss of business and loss of goodwill), costs (including legal costs), charges or expenses; p) A reference to a particular law is a reference to it as it is in force for the time being (taking account of any amendments, extension, application or re-enactment and including any subordinate legislation for the time being in force made under it). 1.2 These Conditions shall apply to any replacement Materials supplied by the Company under a Contract.
2.1 The Price is the price set out in the company's latest price list on the date of dispatch or as otherwise agreed between the parties in writing. Prices quoted are not fixed unless agreed in writing by the company. 2.2 The Price is exclusive of prevailing Value Added Tax, any other applicable tax and of any Additional Charges, all of which shall be invoiced to the Customer. 2.3 The Price is inclusive of the Aggregates Levy at the appropriate rate (if applicable). 2.4 Do not include for any Company or Group guarantee, Collateral warranty or bond. 2.5 Is offered under the understanding that a clear, safe, unhindered and adequate access and egress for mixer trucks.
3.1 The company may invoice the Customer on or at any time after the delivery of the Materials. 3.2 The Customer shall pay the company's invoices in pounds sterling and in cleared funds. Payments shall be made within 30 days from the date of the invoice. 3.3 Time for payment shall be of the essence and all payments payable to the company under the Contract shall become due immediately on its termination. 3.4 Where interest is charged it shall be at the rate of 8% per annum above National Westminster Bank plc base lending rate from time to time and calculated from day to day from the date the sum became due until payment. 3.5 The Customer shall make all payments due under the Contract without deduction for set off, counterclaim, abatement or otherwise. 3.6 The company reserves the right in its absolute discretion at any time to demand reasonable security for payment or to insist upon payment by way of cleared funds for Materials before delivery.
4.1 In this clause "payment in full" means payment by the Customer to the Company in full for the Goods and for all other goods which the Company has supplied to the Customer. 4.2 Upon delivery the Goods shall be at the Customers risk but shall remain the property of the Company until a) Payment in full b) The Goods lose their separate identity or c) The Goods are sold to a third party 4.3 If the Customer sells the Goods before payment in full, he shall hold the proceeds of sale on trust for the Company or, if unpaid and the Company so requires, assign to the Company the Customers rights to recover the price from its purchaser. 4.4 If the Company wishes to recover its Goods it may enter any premises where it has reason to believe they are located and may repossess and resell the same.
5.1 All orders are accepted by the Company subject to the Goods ordered being available to the Company and by accepting an order the Company does not warrant that the Goods are available to it. 5.2 Where the Goods comprise or contain natural, marine dredged or quarried materials they are as such liable to natural defects and are sold subject to those natural defects.
6 FORMATION OF CONTRACT, QUOTATIONS AND ORDERS
6.1 All Materials sold by the company shall be subject to these Conditions and any Contract shall be on the basis of these Conditions to the exclusion of all other terms and conditions that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. 6.2 Any samples, drawings, descriptive matter, or advertising produced by the company and any descriptions or illustrations contained in the company's catalogues or brochures are produced for the sole purpose of giving an indicative idea of the Materials described in them. They shall not form part of the Contract or be treated as a description of the Materials unless expressly stated in writing as doing so in the Contract. No Materials are sold by sample. 6.3 The Order constitutes an offer by the Customer to purchase the Materials in accordance with these Conditions. 6.4 The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate. 6.5 The Order shall be deemed to be accepted, and the Contract shall come into existence on the earlier of the company either a) issuing a written acceptance of the Order; or b) commencing preparation for delivery of the Materials to the Destination. 6.6 Any quotation or estimate issued by the company may be withdrawn at any time before acceptance of an Order and shall be deemed to be withdrawn if an Order is not received within 30 days of its date. 6.7 A quotation or estimate given by the company does not constitute an offer to supply.
7.1 The Customer shall ensure that the company has reasonable prior notice (a minimum of 48 hours) of the required time and date of delivery/collection and, where the Materials are being delivered, that the company (or its agent) is given sufficient particulars of the Destination. 7.2 Clear, safe, unhindered and adequate access and egress for mixer trucks is required. 7.3 Delivery will be deemed to have taken place when, at the company's option unless otherwise agreed between the parties: a) the company notifies the Customer that the Materials are available for collection; b) the Materials arrive at the Destination; or c) delivery of the Materials is attempted by the company and the company is unable to deliver because the Customer redirects a delivery, fails to take or provide a suitable or safe environment for a delivery (in whole or in part), fails to give the company adequate delivery instructions or fails to obtain appropriate licences or authorisations. 7.4 The company may deliver by instalments and tender a separate invoice for each instalment. Each delivery shall be a separate Contract and failure by the company to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to terminate or rescind any individual Contract. 7.5 Without prejudice to any other rights or remedy available to the company an additional charge may be made if: a) the Customer incurs any of the additional charges set out on the relevant Company quotation; b) the Customer requires delivery of Materials in quantities less than the Minimum Loads or outside the core hours of 0700 and 1700 Monday to Friday (excluding public holidays); c) the Customer re-directs a delivery; d) the Customer fails to take delivery; e) the Customer delays the collection of Materials; f) the Customer fails to provide a suitable or safe environment for a delivery (in whole or in part); g) the Customer fails to give the company adequate delivery instructions; h) the Customer fails to obtain any appropriate licences or authorisations; i) unloading of the delivery vehicle is delayed for more than 30 minutes after the company is ready to unload or in the case of readymix concrete is not completed within 30 minutes of arrival at the Destination; j) delivery cannot be affected because of unsuitable access at the Destination; k) unused Materials are returned to the company for disposal; or l) the company provides day work services to the Customer; m) For all concrete orders reduced or cancelled after 15:00hrs on the working day prior to the booked delivery date, a charge of £60.00 per cubic metre will be made; n) For all orders including pumps, plant and additions, reduced or cancelled after 12:00hrs on the working day prior to booking, a charge of 100% of the initial price will be made. 7.6 The Customer must provide convenient and safe access to the Destination and the company shall be entitled to refuse to deliver over roads or over ground which it considers unsuitable. The Customer shall be liable for and shall fully indemnify the company against any Losses arising from any accident or damage occurring due to unsuitable access. 7.7 If the Materials are to be deposited on a street or public highway the Customer is responsible for compliance with all regulations and for all steps which need to be taken for the protection at all times of persons or property and shall fully indemnify the company in respect of all Losses which the company may incur as a result of such delivery. 7.8 Should the company deem the discharge point to be unfit for purpose and alternative discharge point will need to be established, the company reserve the right to refuse to unload in such instances and the customer will remain fully liable for the costs and materials. 7.9 Dates and times quoted for delivery are approximate only. The company shall not be liable for Losses resulting from any delay in delivery of the Materials or failure to deliver the Materials within three working days whether such delay or failure is caused by the company's negligence or otherwise. The Customer may terminate the Contract immediately by written notice at the end of that period of three working days. 7.10 Subject to Clause 11.3 (Limitation of Liability), should the Customer not terminate the Contract under Clause 7.9 above then any liability of the company for continued non-delivery shall be limited to either (at the company's discretion): a) replacing the Materials within a reasonable time; or b) issuing a credit note for a reasonable percentage of the Price.
8 INSPECTION AND SHORTAGES
8.1 The company shall use reasonable endeavours to supply the quantity of Materials provided for by the Contract. 8.2 Subject to Clause 8.5 below, if the Customer has a claim for short delivery it must telephone the company as soon as reasonably practicable and shall then advise the company in writing within 48 hours of delivery (the "Notice Procedure") of such a claim. 8.3 If the Notice Procedure is not followed the Materials will be deemed to have been delivered in the quantities shown on the Delivery Ticket or, where there is no Delivery Ticket containing such details, the quantities shown on the consignment note, and the Customer shall not be entitled to make a claim in respect of alleged shortfall in the Materials. 8.4 Subject to Clauses 8.2 and 8.3 above and 11.3. (Limitation of Liability), the company's liability for any shortfall is limited to either (at its discretion): a) making good the shortfall within a reasonable time; or b) issuing a credit note for a reasonable percentage of the Price. 8.5 The Customer shall not in any case be entitled to reject the Materials if the company delivers up to and including 5% more or less than the quantity of Materials ordered. If the company delivers more or less than the quantity of Materials ordered, and the Customer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Materials.
9 RISK AND TITLE
9.1 Risk in the Materials shall pass to the Customer on delivery as provided for in Clause 7.3 (Delivery). 9.2 Ownership of the Materials shall not pass to the Customer until the company has received payment in cleared funds: a) of all sums owed by the Customer to the company under the Contract; and b) for any other goods or services that the company has supplied to the Customer in respect of which payment has become due. 9.2.1 Until ownership passes to the Customer the Customer shall: a) hold the Materials as the company's fiduciary agent and Bailee; b) keep (at no cost to the company) the Materials separately and safely stored, satisfactorily protected and identified as the company's property; and c) only be entitled either to re-sell the Materials at full market value or use the Materials in the ordinary course of its business. For the avoidance of doubt, it shall not be considered the "ordinary course of business" for the Customer to trade while subject to any of the matters or events described in Clause 13 (Default).
9.3 The company shall be entitled to recover payment for the Materials (including VAT, other taxes and Additional Charges) even though the ownership of any of the Materials has not passed from the company. 9.4 The company shall be entitled at any time to inspect or recover any or all of the Materials in the Customer's possession to which the company has title and for that purpose the Customer permits the company or its servants or agents to enter upon any premises occupied by the Customer or to which the Customer has access and where the Materials may be, or are believed to be, situated. 9.5 On termination of the Contract the company's rights in this Clause 9 shall remain in effect.
10.1 The company warrants that (subject to the other provisions of these Conditions) upon delivery the Materials shall: a) be of satisfactory quality; b) be reasonably fit for the purpose for which they are normally used; and c) be reasonably fit for any particular purpose for which the Materials are being bought if the Customer had made known that purpose to the company in writing and the company has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgment of the company. 10.2 The company agrees to manufacture the Materials in accordance with any applicable British Standards and Materials covered by harmonised European Standards will carry CE marking to the extent which is practicable. 10.3 Whilst every effort is made to maintain consistency in the characteristics of the Materials some variation is unavoidable and the company shall not be liable in respect thereof. 10.4 If the Customer can establish to the reasonable satisfaction of the company that: a) there is a defect in the workmanship of the company in relation to the Materials; or b) the Materials are not in accordance with the quality or Specification contained in the Contract; or c) there is some other failure by the company in relation to the Materials to comply with the Contract; then subject to the conditions set out in Clause 10.5 below, any liability of the company shall be limited to (at the company's sole discretion) either: d) replacing the Materials within a reasonable time; or e) issuing a credit note for a reasonable percentage of the Price. 10.5 Subject to Clause 11.3 (Limitation of Liability), in the case of a defect that is apparent on reasonable inspection or shortly after use, the Company will not be liable under Clause 10.4 above unless: a) the Customer gives written notice of the defect to the company within 30 days of delivery / collection; and b) the company is thereafter given a reasonable opportunity to examine the Materials before they are further used or in any way interfered with. 10.6 Subject to Clause 11.3 (Limitation of Liability), if the company either replaces the Materials or issues a credit note under Clause 10.4 then it shall have no further liability for a breach of Clauses 10.1 or 10.2. This Clause does not affect any other rights or claims of the Customer arising out of any other provision of the Contract.
11 LIMITATION OF LIABILITY
11.1 Save for where the Contract provides specific remedies to the Customer in respect of delay under Clauses 7 (Delivery), short delivery under Clause 8 (Inspection and Shortages) and defective Materials under Clause 10 (Quality), the following provisions set out the total liability of the company (including any liability for the acts or omissions of its employees, agents and contractors) for other loss and damage suffered by the Customer in respect of: a) any breach of the Contract; b) any use made or resale by the Customer of the Materials, or any products incorporating the Materials; and/or c) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract or the supply of the Materials. 11.2 All warranties, conditions and other terms implied by statute or common law which may be excluded by law are, to the fullest extent permitted by law, excluded from the Contract. 11.3 Nothing in these Conditions shall exclude or restrict the company's liability: a) for death or personal injury resulting from the company's negligence; b) under section 2(3) of the Consumer Protection Act 1987; c) for any matter which it would be unlawful for the company to exclude or attempt to exclude its liability; or d) for fraud or fraudulent misrepresentation. 11.4 The company shall have no liability for any defect in the Materials to the extent that the Losses suffered by the Customer or any third-party results from: a) fair wear and tear; b) wilful damage, negligence, abnormal working conditions, mis-use, alteration or repair of the Materials, failure to follow any British Standard, the company's or industry instructions relevant to the Materials, or storage of the Materials in unsuitable conditions (but this sub clause shall not apply to any act or omission of the company); c) use of Materials following the expiry of the recommended shelf life; or d) in respect of readymix concrete: e) water or any other spoiling material or contamination being added to the Materials; or f) the Materials not being sampled and tested in accordance with the relevant British Standard specification or other standard agreed in writing by the company. 11.5 Subject to Clauses 11.1, 11.2, 11.3 and 11.4 above: a) The company's total liability in contract, tort, misrepresentation, restitution or otherwise, arising in connection with the performance of or contemplated performance of the Contract and the supply of the Materials shall be limited to the lower of: i) fifty thousand pounds(£50,000); or ii) the Price. b) The company shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any of the following arising under or in connection with the Contract; i) pure economic loss; ii) loss of profits; iii) loss of business; iv) loss of goodwill; and v) any additional costs, charges or expenses (including legal costs). 11.6 If the Materials are manufactured, processed or mixed by the company to the specification of the Customer or its agents the Customer fully indemnifies the company against all Losses awarded against, incurred by, paid or agreed to be paid by the company in settlement of any claim for infringement of any industrial or intellectual property rights of any other person. 11.7 The Customer fully indemnifies the Company against all Losses awarded against, incurred by, paid or agreed to be paid by the company in settlement of any other claim arising from any such manufacturing, processing or mixing described in Clause 11.6 above. The indemnity will be reduced in proportion to the extent that such Losses are due to the negligence of the company. 11.8 The legal rights of a Customer dealing as a Consumer are not affected by these Conditions.
12 FORCE MAJEURE
12.1 The company may defer delivery, terminate the Contract or reduce the volume of Materials delivered to the Customer and shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of the aforesaid delay, termination or reduced delivery or any failure to perform any of the company's obligations where it was due to any cause beyond the company's reasonable control (a "Force Majeure Event"). 12.2 If the Force Majeure Event in question continues for a continuous period in excess of 90 days, either Party may give notice in writing to the other terminating the Contract.
13.1 If the Customer: a) fails to make any payment to the company on the due date b) suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts c)exceeds any credit limit assigned to the Customer from time to time by the Company d) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts e) has a petition filed, notice given, resolution passed, or order made, for or in connection with its winding up or bankruptcy f) is the subject of an application to court or order for the appointment of an administrator g) has a receiver or an administrative receiver or an administrator appointed over any of its assets h) is in breach of any term of this Contract and (where such breach is capable of remedy) fails to remedy such breach within 14 days of being so requested to do so, then the full balance outstanding on any account between the Company and the Customer shall become immediately payable and the Company shall be entitled to do one or more of the following (without prejudice to any other right or remedy it may have): a) require payment in cash or cleared funds in advance of delivery of any undelivered Materials b) cancel or suspend any further delivery to the Customer under any contract c) sell or otherwise dispose of any Materials which are the subject of any contract with the Customer; and/or d) charge the Customer interest on the balance of monies due at the rate of 8% per annum above National Westminster Bank plc base rate in force from time to time from the date the payment became due until actual payment (whether before or after judgment).
a) Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales. b) Variation: Except as set out in these Conditions, any amendment or variation to a Contract or these Conditions shall have no effect unless expressly agreed in writing and signed by an authorised employee of the Company. c) Entire Agreement: The Contract constitutes the entire agreement between the parties and supersedes and extinguishes any previous arrangement, understanding or agreement between them relating to the subject matter of this Contract. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. d) Safety Data Sheets: The Company is required to produce health and safety/hazard data sheets for some of the products it sells. These sheets are available on request. These sheets are for information purposes only and do not form part of the Contract and the Customer agrees that the company will have no liability in respect of them. e) Severance: If any Clause or sub clause of these Conditions is held by any court or other authority of competent jurisdiction to be wholly or partly void or unenforceable the validity of the other Clauses or sub clauses of these Conditions shall not be affected and they shall remain in full force and effect. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable. f) Assignment: the company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the company. g) Waiver: A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. h) Termination of the Contract, however arising, shall not affect any rights or remedies of either party which have accrued prior to the date of termination; and termination of the Contract shall not affect the continuing force and effect of any provision of the Contract which, whether expressly or by implication, is to survive termination of the Contract. i) Third Party Rights: The Parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not party to it. j) Notice: Any notice by either Party to the other shall be in writing addressed to that other Party at its registered office or principal place of business or such other address as notified to the Party giving the notice. Notices shall be deemed to have been received 48 hours after posting (exclusive of the day of posting) if sent by first class post; on the day of delivery by hand; or at the time of transmission if sent by facsimile or e- mail.