Conditions Of Sale
Topsoil UK Odiham Limited – Conditions of Sale
In the absence of any special contract conditions all and any business undertaken including advice, information, or service provided gratuitously or otherwise by Topsoil UK Odiham Limited is transacted subject to the Standard Terms and Conditions hereinafter set out.
1. Definitions: In the following Conditions of Sale Topsoil UK Odiham Limited is referred to as the ‘Company´ and the person to whom this quotation is made is referred to as ‘the Customer´. The ‘Goods’ means the goods or services sold by the Company to the Customer.
2. Amendments to Conditions: Unless otherwise agreed by the Company, in writing, these terms and conditions shall apply to all orders or contracts placed with the Company. Any stipulations or conditions in a Customer’s order form which would conflict with any of these terms and conditions, or in any way qualify or negate the same shall be deemed to be inapplicable to any order placed with the Company unless expressly agreed to by the Company in writing when acknowledging the order in question.
3. Quotations and Orders: All orders are accepted subject to the necessary labour materials and transport being available when required and offers for delivery from stock are made subject to the goods still being available at the time the contract is concluded. If for any reason whatsoever material is not available, or not available in sufficient quantities the Company shall not be liable for any loss sustained by the Customer due to its inability to supply material as quoted.
4. Prices: All prices quoted are exclusive of value added tax.
5. Payment & Interest: Terms are due and payable on receipt of invoice, or nett monthly account unless otherwise stated and are then subject to the Customer having an approved account with the Company. If you have an approved credit account, the Company may withdraw it or reduce your credit limit or bring forward your due date for payment. The Company may take any of these actions at any time and without notice. Unless agreed otherwise, in writing, payment shall be made by the agreed date and terms and in default of such payment (without prejudice to any other remedy): (i) The Company may withhold further deliveries both in respect of the Contract or a series of contracts to which the default relates and in respect of any other contract for the delivery of goods to the Customer, and (ii) payment in respect of all goods delivered by the Company to the Customer shall forthwith become due and payable. (iii) The Company further reserves the right to charge and the Customer shall be deemed to have agreed to pay interest on the amount overdue from the date of default to the date of payment at the rate of 8% over Bank of England base rate. (iv) The Customer is to indemnify the Company in full and hold the Company harmless from all expenses and liabilities incurred, directly or indirectly, and including finance costs and legal costs on a full indemnity basis, following any breach by the Customer of any obligations under these terms.
6. Conditions and Use of Goods: It shall be the responsibility of the Customer to ensure that the goods are suitable for the purpose for which they are required. The Company shall not in any circumstances be liable for any loss or damages or consequential loss (including loss of profit) whatsoever arising out of or in connection with the purchase of unsuitable goods by the Customer or the wrongful use of any of the Goods by the Customer and the Customer shall indemnify the Company against any claim of whatever nature made by a third party against the Company arising out of the wrongful use of any of the goods by the Customer. All brochures, catalogues and other promotional materials are to be treated as illustrative only. Their contents form no part of any contract between the Company and the Customer and the Customer should not rely on them in entering into any contract with the Company. Any samples of the materials submitted to the Customer are intended to indicate only the substance and the general character of the materials and the Company will not be liable if the colour, the grading or the particle shape of the bulk of the materials fails to correspond with any such samples. Whilst the Company takes reasonable precautions to ensure that the products supplied are contaminant free, they are not sterile or organic and therefore the Company cannot guarantee that they will not contain ‘contaminants’ including, but not limited to, weed seeds and herbicides. The Company cannot take responsibility for any consequential damage or effects on plant growth. Topsoil supplied is a processed product and due to the nature of the product and the production process no guarantee can be given by the Company that the product is free from sharps; eg, sharp stones, etc. It must be recognised that sometimes, as a result of machinery malfunction / breakdown etc, larger items may end up in the topsoil. Every effort will be made to ensure the goods are of a high standard which reflects the price paid by the Buyer. Where the work is for collection of waste, the Customer warrants to the Company that such waste materials are inert and non-toxic and will not contaminate water supplies or atmosphere in the region of which they are tipped.
7. Delivery: In the absence of any specific agreement pertaining thereto, the Company reserves the right to deliver the goods in one or more consignments, as may be appropriate or convenient. (i) All times quoted for delivery are estimated times only. They are not to be taken and are not intended to be agreed times, periods or dates imposing any obligations on the Company to deliver within or by such times, periods or dates. (ii) Where delivery is to be made to the Customer’s site, the Customer shall provide and clearly indicate to the delivery driver a route from the public highway to the site which is safe and reasonable and provides adequate turning space at the point of delivery. The driver may refuse delivery if, in their opinion, the route or the point of unloading is unsafe or likely to cause damage to the delivery vehicle. The Customer shall indemnify the Company (both or itself and as agents for any haulage contractor operating the vehicle) against any damage caused to any such vehicle and against all claims, costs and damage incurred by the Company by reason of a default to the Customer under this condition. (iii) The Customer shall be responsible for any demurrage or waiting time caused by any delay in unloading. (iv) The Company accepts no responsibility for any damage caused by its vehicles to any part of the Customer’s site or anything there on. (v) The Customer warrants to the Company that in pursuance of the requirements of the Health & Safety Act Works etc, Act 1974 the Customer will provide safe working conditions with the site premises consistent with the Act and will ensure that the Company’s personnel are not exposed to any risks to their health or safety. (vi) The Customer hereby agrees to indemnify the Company against any liability, loss, damage, expense or proceedings arising out of any claims by any employee of the Company or any of its Contractors pursuant to the above Act or any statutory modifications in respect of any incident or occurrence at the point at or on the road or access to which delivery is made. (vii) Delivery will be made during the Company’s normal working hours. All materials delivered or made available at the Customer’s request on Bank Holidays, Sundays and Saturday afternoon and outside the Company’s normal working hours will be subject to an extra charge.
8. Samples: All samples submitted by the Company are from current production at the time of submission of such samples. Due to the variation in the seams/strata in supplying quarries the material eventually supplied in bulk may not conform to the original sample but the Company will supply material to conform to the relevant British Standard Specification, if suitable.
9. Shortage, Loss & Damage: (i) Notice of any claim relating to shortage shall be made as soon as possible to the Company confirmed in writing within 48 hours on receipt of the goods. In the event of loss or non-delivery the Customer shall notify the Company within 24 hours of the expected delivery and in writing within three days of receiving the invoice thereof. (ii) The Company will consider claims only if the above conditions are met and the claim is signed by the Customer and accompanied by full particulars giving the invoice and Company’s order number and, as the case may be, a copy of the delivery note in respect of the goods.
10. Cancellations and Returns: (i) An order accepted by the Company may be cancelled only with the written agreement of the Company and where such written agreement is obtained the Company will specify the amount of the cancellation charge (if any) that the Company will require. (ii) Should loads or part loads have to be returned to the Company the transport costs to and from the site and other incidental costs will be payable as an extra by the Customer. If the Company is unable to safely access the site / location for delivery and the goods have to be returned, the Company reserves the right to charge a 40% re-stocking charge for the goods. For avoidance of doubt, the delivery charge will still be payable by the Customer. Should the Customer fail to pay for services such as muck-away, wood-away, green waste away, etc, the Company reserves the right to return equal volume of loads to the place or site of origin. Additionally, any contaminants found in muck-away services (such as but not limited to asbestos, aerosols, tyres etc) will be returned to the Customer and such return may incur additional costs.
11. Liability of the Company (i) The Company’s liability hereunder in respect of any shortage, loss or damage shall be limited to the proportion of the price attributable to the goods lost or damaged and in no event shall the Company, its servants or agents be liable (otherwise than as provided under these terms of sale) for any injury, loss or damage (including consequential loss or damage) loss of profits, economic loss or expenses of any kind whatsoever caused in connection with goods supplied by the Company (other than death or personal injury due to the negligence of the Company). (ii) The Company’s liability in respect of any defective goods or services supplied or provided by it shall be limited to the free replacement by the Company of such goods or services.
12. Force Majeure The Company will not be liable for any loss, damage or expenses incurred and the Customer shall not be entitled to terminate the contract in the event of: (i) Act of God, war hostilities (whether war is declared or not) (ii) Riots, civil commotion, invasion, military or usurped power (iii) Any Act of Parliament statutory instrument and any Bye Law or Regulations of any Local Authority or any statutory undertaking which comes into effect after the date of this quotation. (iv) Any strikes or lock-outs or industrial action (official or otherwise) (v) Any breakdown of plant or equipment used in production or delivery (vi) Any shortage of labour or plant and equipment (vii) Any cause or circumstances beyond the control of the Company, its subsidiaries or suppliers.
13. Customers Credit, Liquidation or Bankruptcy: (i) The Company reserves the right at any time to refuse to execute an order or contract if the arrangements for payment or the Customer’s credit are not satisfactory to it. (ii) In the case of non-payment of the account when due or in the case of death, incapacity, bankruptcy or insolvency of the Customer or when the Customer is a limited company, in the case of liquidation or the appointment of a receiver, then the purchase price of all materials invoiced and/or supplied by the Company to the Customer to date shall immediately become due and payable from the Customer to it, and in addition the Company shall have the right to cancel every contract made with the Customer or to continue or to suspend the supply of materials at its option without prejudice to its right to recover any loss sustained.
14. Disputes In the event of any disputes arising concerning the quality of any of the material supplied, a representative sample shall be drawn in the manner prescribed by the British Standards Specification in presence of the Company or its authorised representatives and referred for examination to some recognised testing expert to be mutually agreed upon or failing agreement to be nominated by the President of the Institute of Civil Engineers. The report of such expert shall be binding on all parties. The experts fee shall be paid by the Company if the material fails to comply with the British Standard Specification and in all other cases by the Customer.
15. Miscellaneous: (i) In the case of orders given by the Customer verbally, whether by telephone or otherwise, the record made by the Company of such orders shall be conclusive and binding. (ii) The Company acts only as a supplier of materials to the order of the Customer and knowledge of the purpose for which the materials are intended to be used does not imply any warranty on the part of the Company as to the quality or fitness for that purpose of the materials supplied. (iii) The Company has taken all reasonable care in the preparation of information contained within the Company’s website to ensure that it is accurate, but such information is intended for guidance only and visitors to the website should always verify information given on the site before placing any reliance on it. (iv) Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other documentation or information issued by the Company shall be subject to correction without any liability on the part of the Company. (v) All rights that would otherwise arise pursuant to the Contract (Rights of Third Parties) Act 1999 are excluded except where expressly stated in relation to a specific clause or where a person is a permitted successor or assignee to the rights of a party to this Contract.
16. Ownership and Title: (i) The ownership of the goods shall remain with the Company, which reserves the right to dispose of the goods until payment in full for all the goods has been received by it in accordance with the terms of this contract. If such payment is overdue in whole or in part the Company may (without prejudice to any of its rights) recover or resell the goods or any of it and may enter upon the Customer’s premises by its servants or agents for that purpose. Such payments shall become due immediately upon the commencement of any act or proceeding in which the Customer’s solvency is involved. If any of the goods are incorporated in or used as material for other goods before such payment the property in the whole of such goods shall be and remain with the Company until such payment has been made, or the other goods shall have been sold as aforesaid, and all the Company’s rights hereunder in the material shall extend to those other goods. (ii) Until the Company is paid in full for all the products the relationship of the Customer to the Company shall be fiduciary in respect of the products or other goods in which they are incorporated or used and if the same are sold by the Customer the Company shall have the right to trace the proceeds thereof according to the principles in ³Re Hallet’s Estate (1880 ´13 ChD696, (1874-80) All ER Rep 793). A like right for the Company shall apply where the Customer uses the products in any way so as to be entitled to payment from a third party. (iii) Upon delivery the goods shall be at the risk of the Customers. (iv) The invalidity, in whole or in part, of any terms of this agreement does not affect the validity of the remainder of the agreement.
17. Failure or delay: Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
18. Governing Law: These conditions and any contract to which they apply shall be governed and construed by the laws of England and shall be specifically determined by reference to the situation of the office of the Company.