1. DEFINITIONS AND INTERPRETATION
1.1″Additional Charges” means the additional charges provided for in Clause 5.4 (Additional Charges); “Conditions” means the conditions set out in this document and includes any special terms and conditions expressly agreed in writing between the Seller and the Customer; “Consumer” has the meaning given to it by the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contract Regulations 1994; “Contract” means the contract between the Seller and the Customer for the supply and purchase of Materials which includes these Conditions; “Customer” means the person, firm or company who has agreed to purchase the Materials from the Seller as set out on the Order; “Delivery Ticket” means the proof of delivery/collection ticket to be signed by the Customer and returned to the Seller setting out various details including the Customer’s details and a description of the product type and quantity, delivery date and purchase order number; “Destination” means the site and the point of unloading to which the Materials are to be delivered as set out in the Order (or such other location as the parties may agree); “the Seller” means Maxi Readymix Concrete Limited (registered in England and Wales with Company No: 07443710) whose registered office is at Maxi House, 5 Harcourt Way, Meridian, Leicester, LE19 1WP; “Losses” means any damages whatsoever whether direct, indirect or consequential (including any liability to any third party, pure economic loss, loss of profits, loss of business and loss of goodwill), costs (including legal costs), charges or expenses; “Materials” means the goods to be supplied by the Seller as set out in the Order; “Minimum Loads” means, for readymix concrete, 6 cubic metres and, for all other Materials, 20 tonnes; “Order” means the Customer’s order for the Materials, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Seller’s quotation, the Customer’s verbal confirmation or overleaf, as the case may be; “Price” means the amount payable by the Customer to the Seller pursuant to the Contract in respect of the supply of the Materials (as detailed by Clause 3 (Price)); “Specification” means any specification for the Materials, including any related plans and drawings, that is agreed by the Customer and the Seller.
1.2 A reference to a particular law is a reference to it as it is in force for the time being (taking account of any amendments, extension, application or re-enactment and including any subordinate legislation for the time being in force made under it).
1.3 These Conditions shall apply to any replacement Materials supplied by the Seller under a Contract.
2. FORMATION OF CONTRACT, QUOTATIONS AND ORDERS
2.1 All Materials sold by the Seller shall be subject to these Conditions and any Contract shall be on the basis of these Conditions to the exclusion of all other terms and conditions that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Materials described in them. They shall not form part of the Contract or be treated as a description of the Materials unless expressly stated in writing as doing so in the Contract. No Materials are sold by sample.
2.3 The Order constitutes an offer by the Customer to purchase the Materials in accordance with these Conditions.
2.4 The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.5 The Order shall be deemed to be accepted, and the Contract shall come into existence on the earlier of the Seller either: a) issuing a written acceptance of the Order; or b) commencing preparation for delivery of the Materials to the Destination.
2.6 Any quotation or estimate issued by the Seller may be withdrawn at any time before acceptance of an Order and shall be deemed to be withdrawn if an Order is not received within 30 days of its date.
2.7 A quotation or estimate given by the Seller does not constitute an offer to supply.
2.8 The Seller may make any changes to the Specification which are required to meet any applicable statutory or EU requirements or which do not materially affect their quality and performance.
3.1The Price is the price set out in the Seller’s latest price list on the date of dispatch or as otherwise agreed between the parties in writing. Prices quoted are not fixed unless agreed in writing by the Seller.
3.2 The Price is exclusive of Value Added Tax, any other applicable tax and of any Additional Charges, all of which shall be invoiced to the Customer.
3.3 The Price is inclusive of the Aggregates Levy at the appropriate rate (if applicable).
4.1The Seller may invoice the Customer on or at any time after the delivery of the Materials.
4.2 The Customer shall pay the Seller’s invoices in pounds sterling and in cleared funds. Payments shall be made within 30 days from the date of the invoice.
4.3 Time for payment shall be of the essence and all payments payable to the Seller under the Contract shall become due immediately on its termination.
4.4 The Customer shall make all payments due under the Contract without deduction for set off, counterclaim, abatement or otherwise.
4.5 The Seller reserves the right in its absolute discretion at any time to demand reasonable security for payment or to insist upon payment by way of cleared funds for Materials before delivery.
5.1 The Customer shall ensure that the Seller has reasonable prior notice (a minimum of 48 hours) of the required time and date of delivery/collection and, where the Materials are being delivered, that the Seller (or its agent) is given sufficient particulars of the Destination.
5.2 Delivery will be deemed to have taken place when, at the Seller’s option unless otherwise agreed between the parties: a) The Seller notifies the Customer that the Materials are available for collection; b) the Materials arrive at the Destination; or c) delivery of the Materials is attempted by the Seller and the Seller is unable to deliver because the Customer re-directs a delivery, fails to take or provide a suitable or safe environment for a delivery (in whole or in part), fails to give the Seller adequate delivery instructions or fails to obtain appropriate licences or authorisations.
5.3 The Seller may deliver by instalments and tender a separate invoice for each instalment. Each delivery shall be a separate Contract and failure by the Seller to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to terminate or rescind any individual Contract.
5.4 Without prejudice to any other rights or remedy available to the Seller an additional charge may be made if: a) the Customer incurs any of the additional charges set out on the relevant Seller quotation; b) the Customer requires delivery of Materials in quantities less than the Minimum Loads, of two different types of Materials on one vehicle or outside the core hours of 0630 and 1430 Monday to Friday (excluding public holidays); c) the Customer re-directs a delivery; d) the Customer fails to take delivery; e) the Customer delays the collection of Materials; f) the Customer fails to provide a suitable or safe environment for a delivery (in whole or in part); g) the Customer fails to give the Seller adequate delivery instructions; h) the Customer fails to obtain any appropriate licences or authorisations; i) unloading of the delivery vehicle is delayed for more than 30 minutes after the Seller is ready to unload or in the case of readymix concrete is not completed within 30 minutes of arrival at the Destination; j) delivery cannot be effected because of unsuitable access at the Destination; k) unused Materials are returned to the Seller for disposal; or l) The Seller provides day work services to the Customer. Details of these charges are available on request.
5.5The Customer must provide convenient and safe access to the Destination and the Seller shall be entitled to refuse to deliver over roads or over ground which it considers unsuitable. The Customer shall be liable for and shall fully indemnify the Seller against any Losses arising from any accident or damage occurring due to unsuitable access.
5.6 If the Materials are to be deposited on a street or public highway the Customer is responsible for compliance with all regulations and for all steps which need to be taken for the protection at all times of persons or property and shall fully indemnify the Seller in respect of all Losses which the Seller may incur as a result of such delivery.
5.7 Dates and times quoted for delivery are approximate only. The Seller shall not be liable for Losses resulting from any delay in delivery of the Materials or failure to deliver the Materials within three working days whether such delay or failure is caused by the Seller’s negligence or otherwise. The Customer may terminate the Contract immediately by written notice at the end of that period of three working days.
5.8 Subject to Clause 9.3 (Limitation of Liability), should the Customer not terminate the Contract under Clause 5.7 above then any liability of the Seller for continued non-delivery shall be limited to either (at the Seller’s discretion): a) replacing the Materials within a reasonable time; or b) issuing a credit note for a reasonable percentage of the Price.
6. INSPECTION AND SHORTAGES
6.1 The Seller shall use reasonable endeavours to supply the quantity of Materials provided for by the Contract.
6.2 Subject to Clause 6.5 below, if the Customer has a claim for short delivery it must telephone the Seller as soon as reasonably practicable and shall then advise the Seller in writing within 48 hours of delivery (the “Notice Procedure”) of such a claim.
6.3 If the Notice Procedure is not followed the Materials will be deemed to have been delivered in the quantities shown on the Delivery Ticket or, where there is no Delivery Ticket containing such details, the quantities shown on the consignment note, and the Customer shall not be entitled to make a claim in respect of alleged shortfall in the Materials.
6.4 Subject to Clauses 6.2 and 6.3 above and 9.3. (Limitation of Liability), the Seller’s liability for any shortfall is limited to either (at its discretion): a) making good the shortfall within a reasonable time; or b) issuing a credit note for a reasonable percentage of the Price.
6.5 The Customer shall not in any case be entitled to reject the Materials if the Seller delivers up to and including 5% more or less than the quantity of Materials ordered. If the Seller delivers more or less than the quantity of Materials ordered, and the Customer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Materials.
7. RISK AND TITLE
7.1 Risk in the Materials shall pass to the Customer on delivery as provided for in Clause5.2 (Delivery).
7.2 Ownership of the Materials shall not pass to the Customer until the Seller has received payment in cleared funds: a) of all sums owed by the Customer to the Seller under the Contract; and b) for any other goods or services that the Seller has supplied to the Customer in respect of which payment has become due. 7.3 Until ownership passes to the Customer the Customer shall: a) hold the Materials as the Seller’s fiduciary agent and Bailee; b) keep (at no cost to the Seller) the Materials separately and safely stored, satisfactorily protected and identified as the Seller’s property; and c) only be entitled either to re-sell the Materials at full market value or use the Materials in the ordinary course of its business. For the avoidance of doubt it shall not be considered the “ordinary course of business” for the Customer to trade while subject to any of the matters or events described in Clause 11 (Default). 7.4 The Seller shall be entitled to recover payment for the Materials (including VAT, other taxes and Additional Charges) even though the ownership of any of the Materials has not passed from the Seller.
7.5 The Seller shall be entitled at any time to inspect or recover any or all of the Materials in the Customer’s possession to which the Seller has title and for that purpose the Customer permits the Seller or its servants or agents to enter upon any premises occupied by the Customer or to which the Customer has access and where the Materials may be, or are believed to be, situated.
7.6 On termination of the Contract the Seller’s rights in this Clause 7 shall remain in effect.