TERMS & CONDITIONS FOR THE SUPPLY OF GOODS AND INSTALLATION SERVICES
The Buyer’s attention is drawn in particular to the provisions of Clause 10 (Limitation of Liability)
In this document, the following definitions apply: “Agreement” means the contract between the Company and the Buyer for the supply of Goods and Services in accordance with the Order Acknowledgement and these Conditions;
“Buyer”, “you” or “your” means the person or firm named in the Agreement who purchases the Goods and Services from the Company;
“Commencement Date” has the meaning set out in clause 2.1;
“Company”, “we”, “our” or “us” means Optimum Stone Limited trading as a franchise of Sarsen Stone Group Limited (registered with company number 12038599, the registered office of which is situated at London Road, Hartley Wintney, Hampshire RG27 8RJ); “Company Materials” has the meaning set out in clause 8.1(g);
“Conditions” means these terms and conditions as amended from time to time in accordance with clause 12.2;
“Delivery Address” means the Buyer's property to which the Goods are to be delivered and at which the Services are to be provided, as stated in the Order Acknowledgement;
“Force Majeure Event” means any event beyond the reasonable control of the Company;
“Goods” means the goods (or any part of them) specified in the Order Acknowledgement;
“Order Acknowledgement” means the written confirmation of the Company in which is set out the Goods and any Services to be supplied to the Buyer; “Price” means the total amount payable for the Goods and Services set out in the Order Acknowledgement, as may be varied in accordance with these Conditions; and “Services” means any installation services to be supplied by the Company to the Buyer, as set out in the Order Acknowledgement.
2. Making the Agreement
2.1 The Agreement shall come into existence on the date on which the Company issues its Order Acknowledgement (the “Commencement Date”), accepting the Buyer's order for the supply of Goods and Services.
2.2 The Agreement constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Agreement.
2.3 These Conditions apply to the Agreement to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 Any quotation given by the Company shall not constitute an offer and is only valid for a period of 30 days from its date of issue, provided that the Company does not withdraw it during the 30-day period. 2.5 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. The Goods
3.1 If the Goods are not stock items and are therefore specifically ordered or fabricated for the Buyer, the Agreement may not be cancelled by the Buyer, and the Price shall not be refundable following any purported notice by the Buyer to cancel the Agreement.
3.2 Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Company's website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them. They shall not form part of the Agreement nor have any contractual force.
3.3 In addition, the Buyer acknowledges that: (a) the Goods are natural and geological variations will occur in terms of colour, markings, thickness and size; and (b) all Goods are porous to some degree and should be sealed, and some may easily be scratched and/or be subject to natural pitting or chipping, all of which are beyond the Company's control and for which it does not accept responsibility .
3.4 We can provide estimates of quantities of Goods but, without having carried out a survey or inspection of the Delivery Address, this will be based on general guidelines and the measurements which you have supplied. It is your responsibility to provide accurate measurements to ensure that the correct quantities of Goods are ordered. You should therefore seek professional advice as variations in surfaces and angles may affect the quantities required.
3.5 If the Services include templating, the Buyer agrees that it will comply with the Company’s templating guidelines, a copy of which is enclosed with these Conditions.
3.6 When we have not carried out a survey or inspection of the Delivery Address, we cannot give any warranty as to the suitability or quantities of the Goods for that, or any other given, environment.
3.7 It is important that you check your measurements carefully; we will not be liable for any shortfalls or surpluses arising from incorrect measurements. An order should always include an additional 10% to allow for wastage to cover cutting, minor imperfections, as could be expected with the type of stone and finish ordered, and breakage. If you do not order enough, subsequent Goods (as they are a naturally occurring product) may not exactly match the original Goods.
4. Supply of Goods
4.1 The Company reserves the right to amend the specification of the Goods or substitute Goods for equivalent or similar goods, if:
(a) required by any applicable statutory or regulatory requirements; or
(b) as a result of a Force Majeure Event, the Goods are unavailable.
4.2 The Company shall, subject to receiving the Price in cleared funds beforehand, deliver the Goods to the Delivery Address. Any dates set out in the Order Acknowledgement for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer's failure to ensure that the Delivery Address is suitable, ready and available for the Goods to be delivered and any Services performed, to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Address.
4.4 Subject to clause 4.2, if the Company fails to deliver the Goods, its liability shall be limited to the return of the Buyer's deposit on the Price.
4.5 If a Force Majeure Event prevents the Company from providing any of the Services or Goods for more than two weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Buyer.
4.6 The Company reserves the right to make delivery by instalments and to tender a separate invoice in respect of each instalment.
4.7 When delivery is to be by instalments or the Company exercises its right to deliver by instalments under clause 4.6 hereof or if there be a delay in the delivery of any one or more instalments for whatever reason this will not entitle the Buyer to treat the Agreement as repudiated and/or to damages.
4.8 Deviations in quantity between the Goods delivered and Goods ordered representing not more than 10 per cent. by value shall not give the Buyer any right to reject the Goods or to claim damages and the Buyer shall be obliged to accept and pay at the contract rate for the quantity of Goods delivered. 4.9 The Company will only deliver quantities rounded up to the nearest whole tile, or in the case of a random pattern, to the nearest whole pattern.
4.10 The Buyer may only collect Goods from our Melksham warehouse by prior agreement with the Company and only in a vehicle capable of being fork- lift loaded (unless otherwise agreed in writing). If you arrange transportation of the Goods, it is at your own risk and we will not accept claims for damage or breakages.
4.11 Goods that are stock items may be returned at the Company's sole discretion and, in particular, subject to:
(a) any minimum quantity of Goods for which return is requested;
(b) a re-stocking charge of 20% of the returned Goods;
(c) the returned Goods being in a re-saleable condition; and
(d) all delivery costs related to the return being borne by the Buyer.
5. Quality of Goods
5.1 The Company warrants that, on delivery, the Goods shall: (a) subject to clause 3.3, conform in all material respects with their description in the Order Acknowledgement;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 The Company shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if: (a) the defect arises because the Buyer failed to follow the Company's written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(b) the Buyer alters or repairs such Goods without the written consent of the Company;
(c) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(d) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards. 5.3 Except as provided in this clause 5, the Company shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
6. Title and Risk
6.1 The risk in the Goods shall pass to the Buyer on completion of delivery or their collection by the Buyer. 6.2 The Company will be under no obligation to insure the Goods once the risk has passed to the Buyer.
6.3 Whilst the Goods are in the possession of the Buyer and before title in the Goods has passed to the Buyer, the Buyer shall maintain appropriate insurance against all usual risks and shall procure that the Company's interest is noted on any relevant insurance policy.
6.4 Title to the Goods shall not pass to the Buyer until the Company receives payment in full (in cash or cleared funds) for the Goods and any Services and any other goods or services that the Company has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.5 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company's behalf from the date of delivery;
(d) notify the Company immediately if it becomes subject to any of the events listed in clause 11.2(a) to clause 11.2(c); and
(e) give the Company such information relating to the Goods as the Company may require from time to time. 6.6 If, before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in clause 11.2(a) to clause 11.2(c), then, without limiting any other right or remedy the Company may at any time: (a) require the Buyer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and (b) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
7. Supply of Services
7.1 The Company shall, subject to receiving the Price in cleared funds beforehand, provide the Services to the Buyer in accordance with the specification set out in the Order Acknowledgement in all material respects.
7.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order Acknowledgement, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Buyer in any such event.
7.4 The Company warrants to the Buyer that the Services will be provided using reasonable care and skill.
8. Buyer Obligations
8.1 The Buyer shall:
(a) ensure that the specification of the Goods and Services set out in the Order Acknowledgement is complete and accurate, and to provide us with all relevant information relating to the environment in which the Goods are intended to be used and relating to their Delivery;
(b) co-operate with the Company in all matters relating to the Services;
(c) provide the Company, its employees, agents, consultants and subcontractors, with access to the Delivery Address and such other facilities as may be reasonably required by the Company to provide the Services;
(d) provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Delivery Address for delivery of the Goods and supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(g) keep and maintain all materials, equipment, documents and other property of the Company (the “Company Materials”) at the Delivery Address in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company's written instructions or authorisation.
8.2 If the Company cannot deliver the Goods or provide any Services as a result of the Buyer's failure to comply with clause 8.1, the Goods may be retained by the Company and the Buyer will be liable for any re-delivery or storage charges.
8.3 All Company Materials are the exclusive property of the Company.
9. Payment of the Price
9.1 The Price shall be payable by the Buyer immediately following issue of the Order Acknowledgement by the Company and in any event must be received by the Company in cleared funds by the earlier of the date for delivery of the Goods set out in the Order Acknowledgement or the seventh day following the Commencement Date.
9.2 The Company reserves the right to increase the Price, by giving notice to the Buyer, to reflect any increase in the cost of the Goods or the Services to the Company that is due to:
(a) any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods or Services, ordered; or
(c) any delay caused by any instructions of the Buyer in respect of the Goods or the Services or failure of the Buyer to give the Company adequate or accurate information or instructions in respect of the Goods or the Services.
Subject to clause 3.1, the Buyer shall be entitled to terminate this Agreement with immediate effect by written notice to the Company in the event of an increase to the Price made by the Company pursuant to this clause.
9.3 In respect of any sums payable in addition to the Price set out in the Order Acknowledgement, whether pursuant to clause 9.2 or otherwise, the Buyer shall pay each invoice submitted by the Company:
(a) within 30 days of the date of the invoice; and (b) in full and in cleared funds to a bank account nominated in writing by the Company, and
(c) time for payment shall be of the essence of the Agreement.
9.4 All amounts payable by the Buyer under the Agreement are exclusive of amounts in respect of any value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Agreement by the Company to the Buyer, the Buyer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.5 If the Buyer (which shall include any Buyer with a credit account) fails to make any payment due to the Company under the Agreement by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 5% per annum above the base rate of Lloyds Bank Plc from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
9.6 The Buyer shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding except as required by law. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
10. Limitation of Liability
10.1 Nothing in these Conditions shall limit or exclude the Company's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).
10.2 Subject to clause 10.1:
(a) the Company shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement nor for any loss or damage suffered as a result of the failure, inadequacy or interruption of any primary or temporary power supply at the Delivery Address;
(b) the Company may, in its sole discretion, make good any liability under the Agreement by replacing or repairing the Goods or re-performing the Services; and (c) the Company's total liability to the Buyer in respect of all other losses arising under or in connection with the
Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Price.
10.3 The Buyer expressly acknowledges that delivery of the Goods and the provision of the Services may cause some minor damage to the Delivery Address and any property belonging to the Buyer on, in or near such Delivery Address. Whilst the Company will use reasonable endeavours to avoid such minor damage, it does not accept any liability, subject to clause 10.1, whatsoever for any minor damage to the Delivery Address or to the Buyer's property caused as a result of the Goods and the provision of the Services.
10.4 The Buyer must notify the Company of any loss or damage suffered to the Goods, or any shortfall thereof, as soon as reasonably practicable and must confirm this in writing in any event no later than 48 hours after delivery or collection of the Goods. The Company reserves the right to require evidence (including photographic evidence) of any alleged loss or damage to the Goods before taking any further action. The Company shall have no liability to the Buyer to the extent that the Goods are installed at the Delivery Address or any notification under this clause is made more than 48 hours after delivery or collection.
10.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
10.6 This clause 10 shall survive termination of the Agreement.
11. Termination and Suspension
11.1 If the Buyer becomes subject to any of the events listed in clause 11.2, the Company may terminate the Agreement with immediate effect by giving written notice to the Buyer.
11.2 For the purposes of clause 11.1, the relevant events are:
(a) the Buyer suspends, or threatens to suspend, payment of his debts, or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay his debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Buyer's financial position deteriorates to such an extent that in the Company's opinion the Buyer's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy; and
(c) (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
11.3 If the Buyer fails to comply with its obligations under clause 8.1, clause 9, becomes subject to any of the events listed in clause 11.2(a) to clause 11.2(c), or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Agreement on the due date for payment, then the
Company may, without limiting its other rights or remedies:
(a) may suspend the supply of Services or the delivery of Goods under the Agreement or any other contract between the Buyer and the Company; or
(b) terminate the Agreement or any other contract between the Buyer and the Company .
11.4 The Buyer indemnifies the Company in respect of all costs and expenses (including, but not limited to, any legal costs or disbursements) incurred for or on behalf of the Company in enforcing its rights under clause 9 and this clause.
11.5 On termination of the Agreement for any reason: (a) the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which any invoice has not yet been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt;
(b) the Buyer shall return all of the Company Materials which have not been fully paid for. If the Buyer fails to do so, then the Company may enter the Delivery Address or the Buyer's premises and take possession of them. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12. Variation and Waiver
12.1 A waiver of any right under the Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.2 Except as set out in these Conditions, no variation of the Agreement, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Company.
13. Third Parties
A person who is not a party to the Agreement shall not have any rights to enforce its terms.
14. Governing Law and Jurisdiction
14.1 This Agreement 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 the law of England and Wales.
14.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
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