Spencer Bros 1903 (Brassington) Limited – Terms and Conditions for the supply of goods
The Customer’s attention is drawn in particular to the provisions of clause 8.
1. BASIS OF CONTRACT
1.1 These Conditions and the Order Confirmation apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions and the Order Confirmation. The Customer is responsible for ensuring that the terms of the Order and Order Confirmation are complete and accurate.
1.3 The Order shall only be deemed to be accepted when the Supplier issues a written Order Confirmation acceptance of the Order, at which point the Contract shall come into existence.
1.4 These Conditions allow the Order Confirmation to specify alternate arrangements relating to insurance, the passing of risk and delivery of the Goods. Where it does so by reference to an Incoterm, unless otherwise specified in the Order Confirmation that Incoterm should be interpreted in accordance with Incoterms 2010 published by the International Chamber of Commerce.
1.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
1.6 The Goods are naturally occurring materials, and as such are subject to variations in composition between batches. Any samples, drawings, descriptive matter, or advertising produced by the Supplier and other than the typical chemical composition set out in the Delivery Note provided with the Goods, any descriptions or illustrations contained in the Supplier’s product data sheets, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
1.7 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
2.1 The Goods are naturally occurring materials. Product sheets and other information made available by the Supplier are only indicative of the products provided by the Supplier, and due to natural variations the Goods may have deviations from these.
2.2 Unless otherwise agreed in the Order Confirmation, it is the Customer’s responsibility to ensure the Goods meet its requirements. The Customer may request a Batch Certificate in respect of any particular delivery of Goods. Provision of a Batch Certificate is conditional upon the Customer having paid the Supplier’s charge for producing such a certificate, which charge shall be notified to the Customer within two Business Days of receipt by the Supplier of the Customer’s request.
3.1 The Supplier shall ensure that:
3.1.1 each delivery of the Goods is accompanied by a Delivery Note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), a Batch Certificate (if requested), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
3.1.2 If the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the Delivery Note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
3.2 Unless otherwise specified in the Order Confirmation, the Customer shall collect the Goods from the Supplier’s premises at Overfields Quarry, Pasture Lane, Brassington, Derbyshire, DE4 4HP or such other location as specified by the Supplier in the Order Confirmation (“Delivery Location”) within three Business Days of the Supplier notifying the Customer that the Goods are ready.]
3.3 Delivery of any part of the Goods shall be completed once the Supplier makes that part of the Goods available for collection by the Customer from the Delivery Location.
3.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.6 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
3.6.1 delivery of the Goods shall be deemed to have been completed at 9 a.m. on the fourth Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
3.6.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.7 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
3.8 The Customer shall not be entitled to reject the Goods on the grounds that an incorrect quantity has been delivered if the Supplier delivers up to and including five per cent more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
3.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.1 The Supplier warrants that on delivery the Goods shall conform in all material respects with their typical chemical composition as described in the Delivery Note, or if requested, the Batch Certificate.
4.2 Subject to clause 4.3, if:
4.2.1 the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1;
4.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
4.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
4.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 4.1 in any of the following events:
4.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 4.2;
4.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, care and use of the Goods or (if there are none) good trade practice regarding the same;
4.3.3 the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
4.3.4 the Customer alters or mixes such Goods without the written consent of the Supplier;
4.3.5 the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or
4.3.6 the Goods differ from their typical chemical composition as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4.4 Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 4.1.
4.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
4.6 These Conditions shall apply to any replacement Goods supplied by the Supplier.
5. TITLE AND RISK
5.1 Unless specified otherwise in the Order Confirmation (whether expressly or by reference to Incoterms), the risk in the Goods shall pass to the Customer on completion of delivery.
5.2 Unless specified otherwise in the Order Confirmation, ownership of the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
5.2.1 the Goods; and
5.2.2 any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
5.3.1 hold the Goods on a fiduciary basis as the Supplier’s bailee;
5.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
5.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
5.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in clause 7.1; and
5.3.6 give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.1, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been used, resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6. PRICE AND PAYMENT
6.1 The price of the Goods shall be the price set out in the Order Confirmation, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
6.2 The Supplier may, by giving notice to the Customer at any time up to five Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
6.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
6.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
6.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
6.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
6.4 The price of the Goods is exclusive of amounts in respect of value added tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
6.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
6.6 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
6.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (“due date”), then the Customer shall pay interest on the overdue amount at the rate of four per cent per annum above Lloyd’s Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7. CUSTOMER’S INSOLVENCY OR INCAPACITY
7.1 If the Customer becomes subject to an Insolvency Event, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
7.2 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
8. LIMITATION OF LIABILITY
Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
8.1.2 fraud or fraudulent misrepresentation;
8.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
8.1.4 defective products under the Consumer Protection Act 1987.
8.2 Subject to clause 8.1:
8.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, 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 Contract; and
8.2.2 the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100 per cent of the price of the Goods.
9. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
10.1 Assignment and subcontracting
10.1.1 The Supplier 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.
10.1.2 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 Supplier.
10.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or email.
10.2.2 A notice or other communication shall be deemed to have been received:
(a) if delivered personally, when left at the address referred to in clause 10.2.1;
(b) if sent by pre-paid first class post or recorded delivery, at 9 a.m. on the second Business Day after posting;
(c) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
(d) if sent by fax or email, one Business Day after transmission.
10.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.3.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
10.3.2 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.
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.
10.5 Third party rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
10.7 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 irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
In these Conditions, the following definitions apply:
“Batch Certificate” means a certificate showing the results of the Supplier’s testing of the chemical composition of the Goods comprised in any Order;
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
“Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with clause 10.6;
“Contract” means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with the Order Confirmation and these Conditions;
“Customer” means the person or firm who purchases the Goods from the Supplier;
“Delivery Note” means the document accompany the Goods at delivery which sets out the details of the Goods supplied including the typical chemical composition;
“Force Majeure Event” has the meaning given in clause 9;
“Goods” means the goods (or any part of them) set out in the Order;
“Insolvency Event” means in relation to the Customer:
(a) It ceasing to do business in the normal course or suspending or threatening to suspend payment of all or any of its debts and in the case of a body corporate, being dissolved, removed from any relevant register of companies, ceasing to exist (whether or not capable of reinstatement or reconstitution) or its officers apply for it to be struck-off the relevant register of companies or any other analogous action is taken or act occurs in any relevant jurisdiction;
(b) it being or appearing in the Supplier’s reasonable opinion to be unable or without reasonable prospect to be able to pay its debts when they fall due;
(c) the value of its assets being less than the amount of its liabilities, taking into account its contingent and prospective liabilities;
(d) it, or its officers, members or shareholders, creditors, requesting, resolving, suffering, making an application for or being the subject of an application for, the appointment over that Party or all or any part of its business, revenue or assets of a liquidator, provisional liquidator, administrator, trustee in bankruptcy, administrative receiver, receiver or any similar equivalent or analogous insolvency practitioner in any jurisdiction;
(e) it having a winding up, bankruptcy or other equivalent petition issued or analogous action taken against it in any relevant jurisdiction that is not withdrawn, dismissed or stayed within 10 Business Days of issue;
(f) any person taking steps to enforce any security over all or any of its undertaking, property, revenue or assets taking possession of all or any part of them;
(g) it, or its officers, members or shareholders, taking any steps for the approval of or entering into any composition, compromise, scheme, moratorium or other similar or analogous arrangement in any jurisdiction with any of its creditors (except in the case of a body corporate for the purposes of amalgamation or reconstruction of a solvent company);
(h) it (being an individual) 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.
“Order” means the Customer’s order for the Goods, as set out in the Order Confirmation;
“Order Confirmation” means the confirmation of the Customer’s Order sent by the Supplier to the Customer;
“Supplier” means Spencer Bros (1903) Brassington Limited (registered in England and Wales with company registration number 06534342).
In these Conditions, the following rules apply:
11.2.1 a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
11.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
11.2.3 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re enacted;
11.2.4 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
11.2.5 a reference to “writing” or “written” includes faxes and emails.
Spencer Bros 1903 (Brassington) Limited – Terms and Conditions for the supply of goods