Standard Terms and Conditions for the Sale of Goods and Services
1. DEFINITIONS AND INTERPRETATION
1.1. In these Conditions the following words will have the following meanings: “Company” - Finlay Hire Limited 2675514 / Finlay Plant Northern Limited 2687098 / Finlay Central Limited 5358619 / Finlay Plant Southern Limited 2743881 / Finlay Plant South-East Limited 5358641 / Finlay Plant SW Limited 3649401 / Aggregate Processing Limited= 05240375 “Conditions” - subject to condition 2.1, the terms and conditions set out in this document; “Contract” - any contract made between the Company and the Customer for the supply of Goods and/or Services formed in accordance with condition 2.2; “Customer” - the person who purchases Goods and/or Services from the Company; “Goods” - the goods to be supplied by the Company to the Customer under any Contract including any of them or any part of them; “Price” - the price as provided in condition 3.1; “Services” - the services to be provided by the Company for the Customer under any Contract including any of them or any part of them; and “Site” - the site at which the Company is required to provide the Services.
1.2. Words in the singular include the plural and vice versa and a reference to one gender is to any other gender.
1.3. The words “include” and “including” will be construed in each case as if followed by the words “without any limitation”.
2. APPLICATION OF TERMS
2.1. Each Contract will be on these Conditions (whether or not all of the provisions are applicable to the Customer) to the exclusion of all other terms and conditions (including any terms the Customer purports to apply). No variation to these Conditions will have effect unless in writing and signed by a duly authorised representative of each of the Company and the Customer.
2.2. Where the Customer places an order or accepts a quotation issued by the Company, a contract will only be formed if such order or acceptance of a quotation is accepted by the Company.
2.3. All drawings, descriptions and advertising issued by the Company (including in any brochures) are issued for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of any Contract and no sale is by sample.
2.4. Any typographical or other error or omission in any quotation, invoice or other document issued by the Company will be subject to correction without liability on the part of the Company.
2.5. Each quotation for Goods and/or Services that is issued by the Company will be open for acceptance for a period of 30 days starting on the date of such quotation, or such other period as may be stated in such quotation.
2.6. Where the Company agrees to hire the Goods to the Customer for any period, then such hiring will be on the standard terms and conditions for the time being of the Contractors’ Plant Hire Association.
3. PRICE AND PAYMENT
3.1. The price for the Goods and/or the Services under each Contract will be as specified in such Contract or as otherwise agreed in writing by the parties and will include the costs of delivery of Goods. The Company may increase the price of:
3.1.1. the Services if the Company incurs additional costs or expenses in providing the Services because the Customer fails to comply with its any or all of its obligations under condition 6; and
3.1.2. the Goods if the Customer fails to accept delivery of them on the date specified for delivery so that the Company is required to re-deliver them.
3.2. Except as otherwise agreed in writing by the Company, the Customer shall pay (without any deduction, withholding or set-off unless required by law or a valid court order) 10% of the Price under each Contract at the time such Contract is formed under condition 2.2 and the balance of such Price within 7 days starting on (in the case of Goods) the date on which the Goods are delivered or deemed to be delivered under condition 4 and (in the case of Services) the date on which the Services are completed.
3.3. Unless otherwise stated by the Company in any Contract, the currency for payment of the Price will be GBP.
3.4. The Price is exclusive of VAT which the Customer shall pay in addition to and at the same time as the Price under condition 3.2 subject to receipt of a VAT invoice.
3.5. If the Customer fails to pay any sum when due then, without prejudice to the Company’s other rights, powers and remedies:
3.5.1. that sum will bear interest from the due date for payment at the rate of 3% per annum above the base rate from time to time of the Bank of England until payment in full, whether before or after any judgment; and
3.5.2. the Company may suspend performance of any or all Contracts.
3.6. The Company may appropriate any payment made by the Customer to such invoices for Goods and/or Services as the Company thinks fit, despite any purported appropriation by the Customer.
4.1. The Company shall deliver the Goods and provide the Services (as the case may be) under each Contract on the date specified in such Contract or, if no date is specified, on the date that is notified by the Company to the Customer. However, if the Company fails to do so and this is either the fault of any supplier or carrier on whom the Company is dependent or of the Customer in failing to comply with any or all of its obligations under conditions 6.1.1 to 6.1.4 inclusive then the Company will not be in breach of contract nor will the Company have any liability to the Customer for any loss arising from such failure.
4.2. Subject to condition 4.3, delivery of the Goods under any Contract will be to the Customer at the address specified in such Contract and will be deemed to have taken place when the Goods are made available to the Customer for unloading. The Customer shall provide at its expense adequate and appropriate equipment and manual labour for unloading the Goods.
4.3. Delivery of Goods outside the UK will be FAS (as defined in Incoterms 2000) at the port of shipment specified in the Contract.
4.4. The quantity of the Goods delivered to the Customer as recorded by the Company and signed for by the Customer upon delivery will be conclusive evidence of the quantity received by the Customer on such delivery.
4.5. The Customer shall inspect the Goods on delivery and within 24 hours give the Company written notice of all damage to the Goods and missing parts (if any) that should be apparent on reasonable inspection (and this notice is in addition to any notice on any carrier’s delivery note).
4.6. If the Company is unable to deliver the Goods on time and this is the fault of the Customer:
4.6.1. the Goods will be deemed to have been delivered;
4.6.2. the Company may store the Goods until actual delivery or sale (as the case may be) and the Customer shall pay the Company for all related costs and expenses, including storage; and
4.6.3. following written notice to the Customer, the Company may sell the Goods at the best price reasonably obtainable in the circumstances and charge the Customer for any shortfall below the Price for the Goods.
4.7. Except as provided under any Contract the installation and commissioning of the Goods is the responsibility of the Customer.
5. OWNERSHIP AND RISK
5.1. The Goods are at the risk of the Customer from the time of delivery or deemed delivery of the Goods under condition 4 whether or not the Company is to provide any Services in connection with the Goods.
5.2. Ownership of the Goods will not pass to the Customer until the Company has received in full in cash or cleared funds:
5.2.1. the Price for the Goods; and
5.2.2. all other sums which are due to the Company from the Customer on any account whatsoever (whenever those sums are payable).
5.3. Until ownership of the Goods passes to the Customer, the Customer shall:
5.3.1. hold the Goods on a fiduciary basis as the bailee of the Company;
5.3.2. maintain the Goods in a satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company;
5.3.3. not destroy, deface or obscure any identifying mark on the Goods;
5.3.4. not resell or otherwise dispose of the Goods; and
5.3.5. not grant or purport to grant any charge over or other interest in the Goods to any person.
5.4. The Customer’s right to possession of the Goods will terminate immediately upon the Company giving notice to the Customer in accordance with condition 9.1.
5.5. The Company may recover payment for the Goods even if ownership of the Goods has not passed from the Company.
5.6. The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be used or stored in order to inspect them or, where the Customer’s right to possession has terminated under condition 5.4, to recover them.
6. THE CUSTOMER’S OBLIGATIONS
6.1. The Customer shall (at its expense):
6.1.1. provide the Company with adequate supplies of water, electricity and other utilities or facilities that the Company may require to provide the Services;
6.1.2. complete all necessary ground and other works to ensure that the Site is ready for the provision of the Services and is a safe working environment for the Company’s personnel;
6.1.3. provide the Company with adequate, safe and unrestricted access to the Site;
6.1.4. provide adequate washing and sanitary facilities at the Site for the Company’s personnel; and
6.1.5. comply with all manuals and instructions relating to Goods issued by the Company or the manufacturer (including as to their storage, handling, use, operation or maintenance) and ensure that all persons handling, using, operating or maintaining the Goods comply with all such manuals and instructions.
7.1. Subject to the other provisions of these Conditions, the Company warrants to the Customer that:
7.1.1. on delivery to the Customer under condition 4.2 and for a period of 12 months starting on the date of such delivery (or, in the case of plant, until the plant has been used for a total of 2,000 hours if this is a shorter period) (“Warranty Period”) the Goods will be reasonably fit for their normal purpose, materially free from defects in materials or workmanship and will have the qualities (if any) stated in writing by the Company; and
7.1.2. the Services will be provided with reasonable care and skill.
7.2. If any:
7.2.1. Goods do not comply with condition 7.1.1 then, except as provided in condition 7.3, the Company shall at its option repair or replace such Goods free of charge or credit the Customer with a refund for the Price paid for such Goods;
7.2.2. Services fail to comply with condition 7.1.2 then, except as provided in condition 7.4, the Company shall at its option carry out remedial work or re-perform the Services or credit the Customer with a refund for the Price paid for such Services.
7.3. The Company’s obligation under condition 7.2.1 will not apply to any Goods that do not comply with condition 7.1.1 if any or all of the following circumstances apply (as to which the decision of the Company will be final and binding):
7.3.1. the non-compliance is as a result of:
18.104.22.168. misuse or neglect of the Goods by the Customer;
22.214.171.124. the Customer’s failure to follow the manual or instructions issued by the Company;
126.96.36.199. improper installation, transportation, storage, handling or repair of, or accident to, the Goods in each case by the Customer;
188.8.131.52. damage (malicious or otherwise) to the Goods unless caused by the Company;
184.108.40.206. any cabling, wiring, apparatus, devices, equipment or other materials of whatsoever nature that are used in connection with (but do not form part of) the Goods and that have not been supplied by the Company;
220.127.116.11. the installation of any faulty or incorrect parts, fittings or accessories to the Goods unless supplied by the Company;
18.104.22.168. any upgrade to, or modification, alteration or adaptation of, the Goods unless carried out by or with the prior written consent of the Company; 22.214.171.124. fair wear and tear;
126.96.36.199. abnormal use of the Goods by the Customer (including exposure of the Goods to any temperature outside the range for which the Goods were designed or subjecting the Goods to undue physical pressure or stress or connecting the Goods to the incorrect electrical or water supply). References in conditions 188.8.131.52 to 184.108.40.206 inclusive to “the Customer” mean the Customer or any of its employees, agents and sub-contractors (other than the Company); or
7.3.2. the Customer fails to notify the Company of any non-compliance within 7 days starting on the date on which the Goods are delivered under condition 4.2 (where the non-compliance should be apparent on reasonable inspection) or within 7 days starting on the date the non-compliance comes to the knowledge of the Customer (where the non-compliance is not one which should be apparent on reasonable inspection) and in any event before the end of the Warranty Period; or
7.3.3. the Customer fails to give the Company a reasonable opportunity to examine and test the Goods; or
7.3.4. the Customer fails to return or to deliver-up to the Company the Goods where a replacement is to be provided.
7.4. The Company’s obligation under condition 7.2.2 will not apply to any Services that do not comply with condition 7.1.2 if the non-compliance:
7.4.1. is not notified by the Customer to the Company within 7 days starting on the date of completion of such Services; and/or
7.4.2. results from the Company complying with the Customer’s requirements or any incomplete or inaccurate information provided by the Customer (as to which the decision of the Company will be final and binding).
7.5. If the Company complies with condition 7.2, it will have no further liability to the Customer for breach of condition 7.1.
7.6. Where any Goods are subject to a warranty of the manufacturer or supplier of such Goods, then that warranty will be substituted for condition 7.1.1 and the liability of the Company to the Customer for breach of that warranty will be no greater than that which that manufacturer or supplier has to the Company.
7.7. The Company will reimburse the reasonable costs incurred by the Customer in returning any Goods that fail to comply with condition 7.1 where such Goods are repaired or replaced or are subject to a refund by the Company under condition 7.2.1.
7.8. Any repaired or replaced Goods will be guaranteed on the terms of this condition 7 for the unexpired portion of the Warranty Period from the date of delivery of the repaired or replacement Goods. Any Goods which have been replaced will belong to the Company.
7.9. If the Goods are kept or used outside the United Kingdom, no responsibility is accepted by the Company for ensuring that the Goods are compliant with the laws of any other jurisdiction that may be applicable.
8. LIMITATION OF LIABILITY
8.1. Except as set out in condition 7.1, and for the terms implied by section 12 of the Sale of Goods Act 1979 (as amended), all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from each Contract.
8.2. Nothing in these Conditions excludes or limits the liability of the Company:
8.2.1. for death or personal injury caused by its negligence.
8.2.2. under section 2(3) Consumer Protection Act 1987; or
8.2.3. for any matter for which it would be illegal for the Company to exclude or attempt to exclude its liability; or
8.2.4. for fraud or fraudulent misrepresentation.
8.3. Subject to conditions 7.2, 8.2 and 8.4, the total liability of the Company in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with:
8.3.1. the sale of the Goods under each Contract will be limited to the total Price received by the Company from the Customer for the Goods under such Contract;
8.3.2. the provision of the Services under each Contract will be limited to the total Price received by the Company from the Customer for the Services under such Contract.
8.4. Subject to condition 8.2, the Company will not be liable to the Customer for any loss of profit, loss of savings, loss of production, loss of contracts, depletion of goodwill and like loss in each case whether direct, indirect or consequential or for any indirect or consequential loss or damage whatsoever (howsoever caused including in negligence) which arises out of or in connection with any Contract.
8.5. The Customer acknowledges that the above provisions of this condition 8 are reasonable and reflected in the Price which would be higher without those provisions and the Customer shall accept such risk and/or insure accordingly.
8.6. The Customer shall indemnify and keep indemnified the Company in full from and against all costs (including the costs of enforcement and legal and other professional fees), expenses, liabilities, losses, damages, claims, demands, fines and judgments that the Company incurs as a result of:
8.6.1. damage to its property or to the property of any of its employees, agents or sub-contractors; and/or
8.6.2. death of or injury to any of the Company’s employees, agents or sub-contractors,in each case where such damage, death or injury is caused by any act or omission of the Customer or any of its employees, agents or sub-contractors (other than the Company).
9.1. The Company may terminate any or all Contracts immediately by giving notice to the Customer if the Customer:
9.1.1. being a body corporate enters into any arrangement with its creditors or has any receiver, administrative receiver, administrator or manager appointed over all or any of its undertaking or assets or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986; or
9.1.2. being an individual dies or enters into any arrangement with his creditors or is subject to a bankruptcy petition or order; or
9.1.3. suffers or allows any distraint execution or other process to be levied on its property or obtained against it; or
9.1.4. ceases to trade or threatens to cease to trade; or
9.1.5. encumbers or in any way charges the Goods prior to the passing of ownership under condition 5.2; or
9.1.6. is subject to anything that is analogous to any event specified in conditions 9.1.1, 9.1.2 and 9.1.3 under the laws of any applicable jurisdiction for those purposes.
9.2. On termination of any Contract under condition 9.1:
9.2.1. all amounts payable to the Company under such Contract shall become immediately due despite any other provision to the contrary; and
9.2.2. all rights and liabilities accrued to either party up to the date of termination will not be prejudiced.
9.3. The conditions which expressly or impliedly have effect after termination (including conditions 1, 3, 4.1, 4.6.3, 5, 7, 8, 9.2, 9.3 and 10) will continue to be enforceable notwithstanding termination.
10.1. Each Contract is personal to the Customer who shall not assign it in whole or in part to any person without the prior written consent of the Company.
10.2. If any provision of any Contract is found by any court or administrative body of competent jurisdiction to be wholly or partly invalid or unenforceable it will to the extent of such invalidity or unenforceability be deemed severable and the remaining provisions of such Contract will continue in full force and effect.
10.3. These Conditions contain the whole agreement between the parties relating to their subject-matter and supersede all prior agreements, arrangements and understandings between the parties relating to that subject-matter. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company in respect of any Goods or Services which is not set out or expressly referred to in the Contract for such Goods or Services. However, nothing in this condition 10.3 will exclude any liability which the Company would otherwise have in respect of any statement it has made fraudulently to the Customer.
10.4. The Company and the Customer do not intend that the provisions of any Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to such Contract.
10.5. The formation, existence, construction, performance, validity and all aspects of each Contract will be governed by English law. Subject to condition 10.6, the courts of England will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with any Contract and the parties irrevocably agree to submit to that jurisdiction. However, the Company retains the right to bring proceedings in any other court of competent jurisdiction and the Customer irrevocably waives any objection to, and agrees to submit to, the jurisdiction of such other courts.
10.6. The Customer irrevocably agrees that a judgment or order of any court referred to in condition 10.5 is conclusive and binding upon it and may be enforced against it in the courts of any other jurisdiction.
10.7. Each party agrees that, in the event that any mandatory local law means that any dispute arising out of or in connection with any Contract is judicable in any court that is not in England then, despite condition 10.5, such party shall not seek to argue any matter which would be unlawful under, or incapable of being argued in accordance with, English law and shall limit its arguments accordingly.
10.8. The Company will not be in breach of contract or otherwise liable to the Customer if the Company is prevented from or delayed in performing any of its obligations due to any circumstances outside its reasonable control. However, if such circumstances continue for a consecutive period of 3 months in respect of any Contract, then the Customer may terminate such Contract by giving notice in writing to the Company,
10.9. Any failure or delay by the Company in enforcing any provision of any Contract will not be construed as a waiver of any of its rights under such Contract.
10.10. All notices required under these Conditions, shall be in writing and delivered by hand or pre-paid first class post or airmail or fax to each party at its address or fax number specified in the Contract. Each notice will be deemed to have been received, if delivered by hand, on the day of delivery; if sent by pre-paid first-class post, 48 hours after posting (and if sent by airmail 14 days after posting) and, if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next following working day (dates and times to be local to the Company)
10.11. Each Contract shall be drawn up in the English language. If such Contract is translated into another language, the English language text shall prevail. Unless otherwise agreed in writing by the Company, all communications between the Company and the Customer shall be in English.