Terms and conditions
BREEDON AGGREGATES SCOTLAND
In these terms and conditions “the Company” shall mean Breedon Aggregates Scotland Limited, or such of its subsidiary or associated companies as may be supplying materials or goods subject to these terms and conditions and “the Customer” shall mean the person or other legal entity being or to be supplied with such materials or goods.
1. Terms of Supply
(a) It is an essential term of the Company delivering materials or allowing collection of materials that the Company’s standard terms and conditions, as set out herein, shall apply to all commercial transactions undertaken by the Company. Accordingly, the Company’s standard terms and conditions, as set out herein, are incorporated into any contract arising from any quotation given by or on behalf of the Company, including quotations not given in writing. The Company shall not be bound by any term or condition, other than those contained within these standard terms and conditions, unless the Company has agreed in writing to be so bound.
(b) The Customer shall not assign the contract without the written consent of an Officer of
(a) The price(s) quoted by the Company are the Company’s price(s) current at the date of quotation based upon the cost of materials, labour, equipment and operations at the time of the Company’s last price review and excluding VAT. All contracts are subject to the conditions that deliveries shall be made at the Company’s price(s) ruling at the date of dispatch and in the event of variation in any such costs the Company shall be entitled, at its absolute discretion, to increase prices accordingly.
(b) Where the Company gives prices in respect of specific quantities, in the event of the amount delivered being less than the specified quantity, the Company shall be entitled to increase its price in light of the reduced quantities.
(c) The Company’s quotation is based upon the tax contribution or levies in force at the date of the Company’s quotation. In the event of any increase in the Company’s tax or levies burden in connection with the Company’s quotation prior to delivery to the Customer the Company shall be entitled to recover the increased burden from the Customer.
(d) The Company’s quotation includes for delivery or collection during normal working hours. Any deliveries or collections made on public holidays, Sundays or Saturday afternoons or otherwise outside normal working hours shall be subject to a price increase unless the Company’s quotation expressly states for delivery or collection outwith normal working hours at no extra charge. It shall be the Customer’s obligation to establish the normal working hours of all the Company’s facilities likely to affect delivery or collection.
(e) The Company shall be entitled to charge waiting time where the Company’s appointed delivery vehicle has been held on site for longer than one-quarter hour when delivering dry materials, longer than one half hour when delivering coated materials or three quarters of an hour in respect of ready mix concrete.
(f) The Company’s quotation is based upon the Customer making satisfactory arrangements for payment prior to the Customer ordering materials or goods from the Company. Notwithstanding any other term or condition contained herein or whether or not any materials or goods have been supplied by the Company, the Company shall have no obligation towards the Customer until satisfactory arrangements for payment are put in place by the Customer.
The Company’s quotation shall remain open for acceptance for one calendar month from the date of the quotation, thereafter it shall be incapable of acceptance save at the Company’s sole discretion which shall at all times be confirmed in writing. Any written acceptance or formal order will be acknowledged in writing by the Company affirming the terms and conditions of the contract. In the event that materials are delivered or collected prior to a written agreement being in place, the Company’s terms and conditions shall apply and any other terms or conditions shall be of no effect.
The Company’s quotation is based upon safe and easy access for delivery and collection of goods using the Company’s usual road vehicles. In the event that, in the Company’s opinion, such access is not available or that any road or ground over which the Company’s vehicles would have to travel is unsafe / unsuitable, the Company shall have the right to effect delivery or collection at the location determined by the Company as being the closest to the Customer’s requirements. Should the Company incur extra costs in making a delivery to or collection from an unsatisfactory access or over an unsuitable road or ground, the Company shall be entitled to recover the extra costs from the Customer. The Company shall have no obligation to make further deliveries or collections until the Customer has met the extra costs.
Unless expressly agreed otherwise, all delivery times given by the Company shall be considered approximate and shall be flexible and may be subject to change without notice. The Company shall not be responsible for any consequences arising out of its failure to deliver or, where the Customer will collect materials, for its delay in supplying any materials or goods. The Company’s responsibility following any missed delivery or collection shall be limited to effecting delivery or collection at the earliest opportunity after the missed delivery or collection.
6. Quality of Materials
(a) If any materials or goods supplied by the Company are proved to be not in accordance with the quality or specification noted in the Company’s quotation, the Company shall supply materials or goods to replace the materials or goods if, by not conforming with the quality or specification, such materials are proved to be defective and unsuitable for the purpose to which they are being put. The Company shall only be liable to supply replacement materials or goods if the Customer has notified the Company in writing of a complaint upon receipt or no later than 48 hours after having received the materials or goods.
(b) It is the Customer’s responsibility to ensure that the materials and goods meet the Customer’s requirements. In giving a quotation for materials or goods, the Company accepts no responsibility whatsoever that the materials referred to within the Company’s quotation shall be suitable for the purpose the Customer intends.
(c) The Company shall have no liability to the Customer or other third parties in respect of any direct, consequential or indirect loss or damage howsoever arising and howsoever caused in respect of the Company’s materials or goods.
(d) The Company’s liability to the Customer or others in respect of the Company’s materials or goods shall, in any circumstance, be limited to supplying replacement materials or goods. The Customer shall have no other right in contract, delict or otherwise and all and any conditions, terms and representations (whether express, implied, statutory or otherwise) are by agreement excluded.
Unless otherwise expressly stated in the Company’s quotation, the Company shall be entitled to payment in accordance with the Company’s standard terms and conditions as set out herein. The Company shall be entitled to stage or part payments. The Company shall render invoices to the Customer at such intervals as the Company shall consider appropriate. The Company shall be entitled to receive payment of the full invoice amount not later than the 28th day from the end of the month shown on the relevant invoice. The terms of the Late Payment of Commercial Debts (Interest) Act 1998 are deemed incorporated into the Company’s standard terms and conditions. Although compensation and interest shall not be payable unless payment is received from the Customer beyond the 28 day net monthly period of credit, for the purpose of calculating the amount of interest due to the Company on any payment made late or not at all, the payment shall be considered due (or overdue) as of the date shown on the invoice and the period of credit shall not be considered in calculating the amount of interest due from the Customer.
The Company’s right to interest in respect of late or non-payment shall be in addition to the Company’s right to suspend further performance of its obligations under the contract without notice, upon any invoice being unpaid upon the expiration of the agreed credit period of 28 days following the month of invoice. The Company shall be under no obligation to resume performance of its obligations until all invoices rendered to the Customer have been paid in full and the Company has received satisfactory assurances that future invoices will be paid on time.
Ownership of the Company’s materials or goods shall not pass to the Customer until the Company has received payment in full for all materials supplied to the Customer by the Company. The Customer shall assume the risk and responsibility for damage to the Company’s materials or goods upon delivery.
8. Conditions of Carriage by Rail
If delivery of the Company’s materials or goods are to be affected by rail and delivery is to be made F.O.R., the Company shall not be liable to comply with or be responsible for any consequences of non-compliance with any conditions of carriage imposed by the railway authority or railway operating company.
The Contract shall be governed by and interpreted in accordance with Scottish Law.
BREEDON AGGREGATES ENGLAND
CONDITIONS OF SALE
1.1 These conditions are the only conditions upon which BREEDON AGGREGATES ENGLAND LIMITED (“the Seller”) is prepared to deal with its customer (“the Buyer”) and they shall govern the
contract to the entire exclusion of any other express or implied conditions.
1.2 These Conditions may only be modified by a variation in writing signed on behalf of the seller by a Director and no other action on the part of the Seller (whether delivery of the goods or
otherwise) shall be construed as an acceptance of any other conditions.
1.3 These Conditions (as modified in accordance with condition 1.2) and together with the matters referred to on the face of the Seller’s quotation and/or acknowledgement of order, embody the
entire understanding of the parties and supersede any prior promises, representations, undertakings or implications but this clause shall not operate so as to exclude any liability which the
Seller would otherwise have for any statements made fraudulently by the seller prior to the date of this Agreement.
1.4 Any quotation given by the seller constitutes an offer to sell the goods described therein upon these Conditions. Unless otherwise stated, it shall remain open for acceptance for a period of
one calendar month from its date.
2.1 The Seller gives no undertaking in respect of the description, quality or fitness for the purposes of the goods save that where goods are ordered in accordance with British or the Department
or Transport Standards, they will comply with that Specification at the time of delivery. If goods are to be supplied to conform with a sample provided by the Seller, the Seller’s liability in
respect thereof shall be entirely discharged by the provision of goods which conform to such sample in all material respects. The parties hereby acknowledge that the only characteristic of
the goods delivered which is material for the purposes of establishing conformity with any sample is the relative size of the materials in the sample as compared with the materials supplied
hereunder. If any of the goods do not conform to this warranty the Seller will at its option:-
2.1.1 replace the goods found not to conform to the warranty; or
2.1.2 take back the goods found not to conform to the warranty and refund the appropriate part of the purchase price.
Provided that the liability of the Seller shall in no event exceed the purchase price of the goods, and performance of any one of the above options shall constitute an entire discharge of the
Seller’s liability under this warranty. For the avoidance of doubt the Buyer shall have no right to reject the whole or any part of the goods.
2.2 The foregoing warranty is conditional upon:-
2.2.1 the Buyer giving written notice to the Seller of the alleged defect in the goods such notice to be received by the Seller within (48 hours) of the time when the Buyer discovers or ought to have
discovered the defect and in any event within seven days of delivery of the goods; and
2.2.2 the Buyer affording the Seller a reasonable opportunity to inspect the goods and if so requested by the Seller, returning the allegedly defective goods to the Seller’s works, carriage pre-paid,
for inspection to take place there; and
2.2.3 goods not having been altered or used in any way whatsoever or not having been subjected to misuse, and
2.2.4 goods having been properly stored and handled; and
2.2.5 the Buyer complying with its obligations under this or any other contract made with the Seller.
2.3 Save as provided in condition 2.1 and in section 12 of the Sale of Goods Act 1979:-
2.3.1 all conditions and warranties, express or implied, as to the quality or fitness for any purpose of the goods are hereby expressly excluded; and
2.3.2 the Seller shall be under no liability for any loss or damage (whether direct, indirect or consequential) howsoever arising which may be suffered by the Buyer.
2.4 In the event that, notwithstanding the foregoing provisions of this Condition, the Seller is found liable for any loss or damage suffered by the Buyer, that liability shall in no event exceed the
purchase price of the goods.
2.5 The foregoing provisions of this Condition shall not apply to sales which are made to persons who deal as consumers (as that expression is defined in Section 12 of the Unfair Contract Terms
Act 1977), unless the contract is an international supply Contract (as described in Section 26 of that Act).
3.1 Subject to the provisions of clause 1.4 the price of the goods shall be that set out in the Sellers quotation and/or acknowledgment of order save that the Seller reserves the right to make an
3.1.1 where the order is for less than 20 tonnes; or
3.1.2 where the goods are to be delivered outside the Seller’s ordinary working hours or
3.1.3 where for any reason (other than the default of the Company or its servants or agents) the delivery vehicle is unable to discharge its load within 15 minutes of its arrival at the delivery point.
4.1 Unless otherwise agreed in writing, payment will be made by the Buyer not later than the end of the month following the month in which the Seller’s invoice is dispatched to the Buyer.
4.2 If the Buyer is not trading with the Seller in the course of business, then the Seller shall be entitled to charge interest at an annual rate of 4% above Barclays Bank Plc’s Base Rate from time
to time applicable on all overdue payments. Where the Buyer is trading in the course of business, the Seller will rely on the provisions of the Late Payment of Commercial Debts (interest) Act
1998 and its associated Regulations.
4.3 Where any sum owed by the Buyer to the Seller under this or any other contract is overdue the Seller may withhold any deliveries of goods due to be made under this contract until
arrangements as to payment or credit have been established which are satisfactory to the Seller.
4.4 If the Buyer fails to pay for the goods in accordance with these Conditions, the Seller may bring an action against the Buyer for the price at any time, even though the property in the goods
has not passed to the Buyer.
The Seller will (without prejudice to any other remedy available to it) have in respect of all unpaid debts due from the Buyer a general lien on all property of the Buyer in the possession of the
Seller for whatever purposes and whether worked upon or not and be entitled on the expiration of not less than 14 days notice in writing to the Buyer to dispose of such property and to apply
the proceeds towards the satisfaction of such debts.
6.1 Delivery of each consignment of the goods shall be made to the place, and in the manner designated by the Buyer when placing the order provided that the Seller shall be entitled to withhold
delivery of the goods until the Buyer has paid all sums due to the Seller hereunder.
6.2 The Seller will use its best endeavours to deliver goods on the day and at the time specified. However the Buyer acknowledges that such times can only be an estimate where orders are
placed at short notice and:-
6.2.1 The Buyer orders a large volume of goods; or 6.2.2 The Buyer alters the terms of its order in any material way.
6.3 Where the goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance
with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the contract as a whole as repudiated.
6.4 If the Buyer being a company shall pass a resolution or suffer an order of a court to be made for its winding-up, or if a receiver shall be appointed, or if a petition for the appointment of an
administrator shall be presented in respect of it, or being an individual or partnership shall suspend payment or propose to enter into any composition with creditors or become unable to pay
its debts (or have no reasonable prospect of so doing) or suffer a bankruptcy order, then the Seller may without prejudice to any other right rescind the contract, or suspend or cancel delivery
or recover the possession of any goods for which payment in full has not been received.
6.5 The Buyer shall provide safe and adequate access to the point of discharge of the goods. Where the Seller, (or its servant or agent) in its absolute discretion considers conditions of access to
be unsuitable it reserves the right to refuse to make delivery and to charge the Buyer for ail costs incurred.
6.6 The Seller will not be liable to the Buyer for any damage caused to the Buyer’s property by the delivery of the goods.
7. RISK AND PROPERTY
7.1 The risk in the goods shall pass to the Buyer upon delivery of the goods to the Buyer or any carrier acting on the Buyer’s behalf.
7.2 The property in the goods shall not pass to the Buyer until the full price of the goods and goods which are the subject of any other contract between the Buyer and the Seller is paid.
7.3 Until such time as the full price of all such goods has been paid:-
7.3.1 they shall be held by the Buyer in a fiduciary capacity,
7.3.2 they shall be handed over to the Seller on demand and the Seller shall be entitled to re-take possession of them without prejudice to any of its other rights against the Buyer and the Seller is
hereby granted a licence to enter into the Buyer’s premises for the purpose of recovering the goods.
7.4 If the Buyer fails to pay for the goods in accordance with these terms the Seller will have the right to bring an action against the Buyer for the price of the goods at any time notwithstanding
that property in the goods has not passed to the Buyer.
8. INITIAL DEFECTS
8.1 The Buyer shall have no claim in respect or any breach of the warranty in Condition 2.1 which should have been apparent on a reasonable visual examination of the goods unless the
conditions in condition 8.4 are satisfied.
8.2 If the quantity of goods delivered does not correspond with the quantity required to be delivered in that consignment the Buyer shall not be entitled to reject that consignment but if the
quantity delivered is substantially less than the contract quantity, the Buyer shall be entitled to a further delivery of goods to make up the deficiency or (at the Seller’s option) a refund of the
appropriate part of the purchase price provided that the Buyer shall have no entitlement whatsoever in respect of that deficiency unless the conditions in condition 8.4 are satisfied
8.3 The Buyer shall have no claim in respect of the fact that the goods delivered are of the wrong description unless the conditions in
8.4 The conditions before referred to are that:-
8.4.1 the receipt for the goods is qualified by a remark to that effect, and
8.4.2 the claim is made upon the Seller within 48 hours of delivery and is confirmed in writing by letter within five days of delivery
8.5 In any event the Buyer shall be treated as having accepted any consignment of the goods if it retains them for longer than seven days after their delivery.
Contracts are not subject to cancellation without the Seller’s written consent. Where cancellation is accepted, the Seller shall in addition to any express terms of acceptance of cancellation be
entitled to re-imbursement of any costs incurred by the Seller in connection with the contract.
10. FORCE MAJEURE
The Seller accepts no responsibility for total or partial failure to supply or for the delay in supplying any materials or goods which may be due directly or indirectly to any Act of God or force
majeure, or any war in which Her Majesty is engaged, invasion, riot, civil commotion, military or unsurped power, any legislation, Government order, regulation or direction, any strike,
differences with workmen or lock out, any fire, accident, breakdown in machinery, any shortage of labour or raw materials, equipment or spare parts effecting the production or transit of such
materials or goods or any other cause or circumstances reasonably beyond its control or any abnormal conditions arising from the foregoing clauses. In the event of a partial stoppage of
work resulting from, one of the circumstances referred to above, the Seller shall perform its obligations under the contract pro rata with other engagements existing at the time.
The Buyer will have no right of set-off statutory or otherwise.
12 GOVERNING LAW
The contract is governed by the Laws of England and the English High Court of Justice (to the jurisdiction of which the Buyer hereby irrevocably. submits) and shall have the exclusive
jurisdiction to resolve any disputes out of it.
NOTE: The Seller’s prices are calculated on the basis that the above Conditions will apply. Buyers requiring prices to be quoted on a different basis should inform the Seller