Standard Terms & Conditions of Sale
CEMEX UK MATERIALS LIMITED STANDARD CONDITIONS OF SALE (READYMIX)
*UPDATED JUNE 2022
THE CUSTOMER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS EXCLUDING OR LIMITING LIABILITY IN CONDITIONS 3, 5 AND 7
1 Definitions and Interpretation
1.1 In these Conditions the following words have the following meanings:
“Additional Services” means those services provided by the Company;
“Cancellation Charge” means the charge for cancellation set out in the Supplementary Charges List;
“Company” means CEMEX UK Materials Limited (Registered No: 4895833) whose registered office is at CEMEX House, Evreux Way, Rugby, Warwickshire, CV21 2DT;
“Contract” means any contract between the Company and the Customer for the sale of Goods and provision of Additional Services, incorporating these Conditions;
“Customer” means the person(s), firm or company who purchases the Goods and/or Additional Services from the Company;
"Defective Additional Services" has the meaning given in Condition 5.2;
"Defective Goods" has the meaning given in Condition 5.2;
“Event of Force Majeure” has the meaning given in Condition 10;
“Goods” means any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them and pallets where applicable);
“Group Company” means any subsidiary or holding company of the Company and the ultimate holding company of the Company and any subsidiary company of any of them (in each case from time to time) (and the terms “Subsidiary” and “Holding Company” shall have the meanings given to them by Section 1159 of the Companies Act 2006);
“Part Load Charge” means the charge for part loads as set out in the Supplementary Charges List;
“Quotation” means the documents issued by the Company which set out the prices of the Goods and/or the applicable Additional Services from time to time;
“Returned Materials Charge” means the charge for returning and disposing of material set out in the Supplementary Charges List;
“Supplementary Charges List” means the additional charges (in addition to what is set out in the Quotation) chargeable by the Company from time to time including without limitation the Cancellation Charge, the Part Load Charge, the Returned Materials Charge and the Waiting Time Charge a copy of which is available on request; and
“Waiting Time Charge” means the charge for waiting at the disposal point set out in the Supplementary Charges List.
2 Basis of Contract
2.1 Subject to any variation under Conditions 2.3 and/or 3.12 the Contract will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).
2.2 Each order for Goods and/or Additional Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Additional Services subject to these Conditions. It is the Customer’s obligation to ensure that the terms of its order and any applicable specification are complete and accurate.
2.3 Subject to Conditions 2.13 and/or 3.12, any variation to these Conditions and any representations about the Goods and/or Additional Services shall have no effect unless expressly agreed in writing and executed by a director of the Company.
2.4 No order placed by the Customer shall be deemed to be accepted by the Company until a Quotation is issued by the Company or (if earlier) the Company commences manufacture or mixing of the Goods, their appropriation to the Customer’s order or despatch of the Goods to the Customer and/or provides the Additional Services. Any order shall be accepted entirely at the discretion of the Company. The Company may terminate a Contract on giving 21 days’ written notice to the Customer.
2.5 Any Quotation or estimate made by the Company is given subject to these Conditions. Without prejudice to the Company’s right not to accept an order, Quotations will be valid for 30 days from date of issue.
2.6 Where the Quotation makes a reference to strength it is (unless otherwise agreed in writing) a reference to compressive strength assessed by:
(a) making and curing (in accordance with BS EN 12390) cubes from composite samples (sampling in accordance with BS EN 12350-1) taken from a delivery at the time of discharge either from the truck making the delivery at the agreed discharge point or (where collected by the Customer) from the Company’s plant;
(b) carrying out (also in accordance with BS EN 12390) compressive strength tests on such cubes; and
(c) interpreting (in accordance with BS EN 12390, BS8500 and BS EN 206) the result of such tests.
2.7 Where identity testing indicates that the Goods are not in accordance with the Contract then whilst the Company may at its discretion consider the results of this testing, this shall not constitute evidence that the Goods are not in compliance with the Contract and the Company shall not be bound by the results of the identity testing.
2.8 Any reference to a British Standard (“BS”) shall be the latest version of the standard.
2.9 A reference to any other property and/or to the constituents of a delivery of Goods is (unless otherwise agreed in writing) a reference to such property and/or constituents as assessed by carrying out a test (or tests) in accordance with any appropriate BS (each test on fresh concrete to be carried out on samples of it taken in accordance with (a) of Condition 2.6) and by interpreting the result (or results) on a basis agreed in writing.
2.10 All Goods are sold and/or Additional Services provided by reference to the Company’s specification for those Goods and/or Additional Services in force at the date of the Company’s acknowledgement of order and available to the Customer on request.
2.11 Any cancellation or delay of an order by the Customer on or after 3pm on the working day before the order is due to be fulfilled, or if the Company cannot deliver an order due to a failure of the Customer to comply with its obligations pursuant to Condition 3.3 or 3.7, is subject to payment by the Customer of:
(a) the Cancellation Charge; and
(b) the Returned Materials Charge.
2.12 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the strengths or use of the Goods by the Company is followed or acted upon entirely at the Customer’s own risk, such advice and/or recommendation should not be relied upon.
2.13 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.14 The description of the Goods and/or Additional Services shall be set out in the Company’s acknowledgement of order and/or, the Quotation. The Company contracts as a supplier only and shall not be bound by nor imputed with any knowledge of any contract between the Customer and any other person.
2.15 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions, details or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Additional Services described in them and they will not form part of the Contract unless otherwise agreed in writing by the Company.
3 Delivery and Acceptance of Goods
3.1 Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at a discharge point agreed between the Customer and the Company in normal working hours and, in the case where the Goods are discharged into an on-site agitator, this shall be deemed to be the relevant discharge point.
3.2 Any complaints relating to the service provided by hauliers delivering the Goods must be raised by the Customer with 21 days of the date of delivery as the Company is unable to properly investigate issues after this time. Any such complaints raised after this time shall not be considered.
3.3 The Customer shall provide and clearly indicate to the Company a safe and proper route from a metalled highway to the agreed discharge point.
3.4 Any dates or time of day specified by the Company for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates or times are so specified, delivery will be within a reasonable time.
3.5 The Company shall not be liable to any Customer (whether in contract, tort, negligence, breach of statutory duty or otherwise) for any damages whether direct, indirect or consequential (including but not limited to any economic loss or loss of profits) resulting from any delay in delivery or failure to deliver within any agreed time period or as a result of the Customer not providing sufficient notice to cancel or vary an order under Condition 2.11.
3.6 If for any reason the Customer does not accept delivery of any of the Goods within the sum of 30 minutes of when the Goods arrive and are available for discharge at the agreed discharge point, the Company reserves the right to charge the Customer the Waiting Time Charge.
3.7 The Customer shall provide:
(a) an authorised representative to accept the Goods;
(b) all appropriate instructions concerning the delivery of the Goods;
(c) an appropriate access to the discharge point;
(d) all applicable documents; and
(e) a discharge point which is compliant with health and safety legislation and regulations, licences or authorisations.
3.8 The quantity and specification of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity and specification received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
3.9 Given the nature of the Goods, the Customer will be deemed to have accepted the Goods as being in accordance with the Contract on signature of the delivery docket or on delivery, whichever is the earlier and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
3.10 At the anticipated time of delivery the Customer shall ensure that an authorised person is present at the agreed discharge point to accept the Goods and to sign the delivery docket. Any signature will be legible and accompanied with a legible printed name.
3.11 The Customer shall ensure that an authorised person shall sign a delivery docket on delivery. By signing the delivery docket the Customer:
(a) acknowledges that the mix description set out on such delivery docket describes the Goods required by the Customer;
(b) authorises any addition to the Goods of water or of any other materials and shall record this on the delivery docket;
(c) confirms the times of arrival of the truck at the agreed point of discharge and of completion of discharge; and
(d) acknowledges receipt of delivery.
3.12 Where the Company complies with a request from the Customer or from a person reasonably believed by the Company to be acting on his behalf for a variation in the mix description of a delivery the Customer shall accept any consequential variation in the properties and/or the constituents of such delivery.
3.13 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in the Company (even though they have been delivered and risk has passed to the Customer) until:
(a) payment in full, in cash or cleared funds, for all the Goods has been received by the Company; and
(b) all other money payable by the Customer to the Company on any other account or under the Contract or any other contract has been received by the Company.
3.14 Risk in the Goods shall pass on delivery.
3.15 Until full legal, beneficial and equitable title to and property in the Goods passes to the Customer:
(a) the Customer shall hold the Goods on a fiduciary basis as the Company’s bailee;
(b) the Customer shall store the Goods and shall insure them, without any charge to the Company, and not tamper with any identification upon the Goods and the Company shall be entitled to examine any such Goods in storage at any time during normal business hours upon giving the Customer reasonable notice of its intention to do so;
(c) the Company may at any time, on demand and without prior notice, require the Customer to deliver the Goods up to the Company and the Company may repossess and resell the Goods if any of the events specified in Condition 11.1 occurs or if any sum due to the Company from the Customer under the Contract or on any other account or under any other contract is not paid when due;
(d) for the purposes of this Condition 3.15 the Company, its employees, agents and sub-contractors will be entitled to free and unrestricted access to any premises owned, occupied or controlled by the Customer and/or any other location where any of the Goods are situated at any time without prior notice;
(e) the Company shall be entitled to maintain an action against the Customer for the price of the Goods notwithstanding that legal, equitable and beneficial title to and property in the Goods has not passed to the Customer; and
(f) the Company hereby authorises the Customer to use the Goods in the normal course of the Customer’s business. This right shall automatically cease on the occurrence of any event set out in Condition 11.1 and/or if any sum owed to the Company by the Customer is not paid when due.
3.16 The Company shall be entitled at its discretion to make delivery of the Goods by instalments and to invoice the Customer for each instalment individually. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated or to refuse to accept subsequent instalments.
4 Price and Payment
4.1 Unless otherwise agreed by the Company in writing the price for the Goods and/or Additional Services and/or any charges set out in the Supplementary Charges List shall be the price set out in the Quotation and/or the Supplementary Charges List as at the date of delivery.
4.2 The Company reserves the right, by giving notice to the Customer at any time before delivery, to amend the Quotation and/or charges set out in the Supplementary Charges List to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including, without limitation, any increase in the costs of labour, fuel, materials, or other costs of manufacture or supply), any change in the quantities of the Goods and/or Additional Services requested by the Customer or any change in the delivery dates or location for the Goods and/or Additional Services requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
4.3 Unless otherwise agreed in writing the prices for the Goods shall include costs or charges in relation to delivery but are not inclusive of the charges set out in the Supplementary Charges List. For the avoidance of doubt, this does not affect the Company’s right to charge for delivery related charges as set out herein.
4.4 The price for the Goods, Additional Services and/or set out in the Supplementary Charges List shall be exclusive of value added tax and any other taxes and duties or levies all of which amounts the Customer will pay in addition when it is due to pay for the Goods and/or Additional Services and/or the Supplementary Charges List.
4.5 The Company reserves the right to levy the Part Load Charge, where the Customer orders less than a full load. Details of load capacities can be obtained from the Company upon request.
4.6 The Company reserves the right to make a charge for delivery of the Goods and/or the Additional Services on the request of the Customer at a specific time or outside normal working hours.
4.7 Except where otherwise agreed by the Company or where the Customer is a credit account holder, payment of the price for the Goods and/or Additional Services (plus any additional charges in the Supplementary Charges List that have been incurred or are anticipated by the Company to be incurred on or before delivery) is due before dispatch of the Goods and/or completion of Additional Services. Any other charges are due as they are incurred (unless agreed otherwise with the Customer). Time for payment of the Goods and/or Additional Services, and any additional charges in the Supplementary Charges List shall be of the essence.
4.8 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
4.9 The Company shall be entitled to apply any amount due to the Customer under this or any other agreement in or towards payment of any sum owing by the Customer to the Company in relation to any matter whatsoever.
4.10 If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and the Company shall be entitled to:
(a) cancel or suspend its performance of the Contract or any order including suspending deliveries of the Goods and/or provision of the Additional Services; and/or
(b) require the Customer to pay for Goods prior to their despatch or collection from the Company’s place of business; and/or
(c) charge the Customer
(i) interest calculated on a daily basis on all overdue amounts (both before and after judgement) until actual payment at the statutory rate of interest for commercial debts prevailing from time to time until payment is made in full; and
(ii) the cost of obtaining judgement or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
4.11 Any credit facility given to the Customer by the Company may be altered or withdrawn by the Company at any time.
5 Warranty of Quality of Goods
5.1 The Company gives no warranty that Goods will achieve a particular strength or will be fit for any particular purpose unless this has been expressly agreed in writing between the parties to the Contract. The Company shall not be liable for any costs incurred by the Customer as a result of in situ tests on hardened concrete unless such testing has been agreed by the Company in writing.
5.2 Subject to Conditions 5.3 and 5.4, if the Customer establishes to the Company’s reasonable satisfaction that there is a defect in the Goods or there is some other failure in relation to the conformity of the Goods with the Contract and such non-conformity is the fault of the Company (such goods shall be referred to as the “Defective Goods”), or the Additional Services have not been performed with reasonable care and skill (the “Defective Additional Services”), then the Company shall at its option, at its sole discretion and within a reasonable time:
(a) subject to the reasonable co-operation of the Customer, break up and remove the Defective Goods free of charge to the Customer and replace such Defective Goods with Goods which are in all respects in accordance with the Contract (including the cost of transporting the Goods to and from the Customer for that purpose) or re-perform such Defective Additional Services; or
(b) issue a credit note to the Customer in respect of the whole or part of the Contract price of such Defective Goods and/or Defective Additional Services plus the reasonable costs of breaking up and removing the Defective Goods or re-performing such Defective Additional Services;
and performance of any one of the above options shall constitute an entire discharge of the Company’s liability under this warranty and shall be the Customer’s sole and exclusive remedy.
5.3 The Company shall be under no liability under the warranty at Condition 5.2 above:
(a) in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Company’s approval; and/or
(b) if the total price for the Goods and/or the Additional Services and/or any additional charges in the Supplementary Charges List have not been paid by the due date for payment; and/or
(c) for any Goods manufactured or appropriated to the Contract in accordance with any specification, instruction or recommendation made to the Company by the Customer; and/or
(d) for any Additional Services performed in accordance with the Customer’s instructions; and/or
(e) in respect of any type of defect, damage or wear specifically excluded by the Company by notice in writing; and/or
(f) in circumstances where admixtures, pigments, fibres or water are added to the Goods by the Customer or its agents without the written approval of the Company; and/or
(g) an error on the part of the Customer in its use of the Goods; and/or
(h) continued use by the Customer after it becomes aware of a defect; and/or
(i) an Event of Force Majeure.
5.4 If the Customer believes that there is some defect or other non conformance of the Goods and/or the Additional Services with the Contract then the Customer shall give:
(a) written notification of such alleged defect to the Company which notice shall include details of such suspected non-conformance or defect and the precise location of where such concrete was placed as soon as such defect or non conformance is suspected or discovered or ought to have been discovered but in any event within 40 days after delivery of the Goods or within 48 hours if the volume of Goods delivered do not correspond to the volume shown on the delivery docket; and
(b) the Company a reasonable opportunity to inspect the relevant Goods or the location at which the Additional Services were performed and, if so requested by the Company and, promptly return to the Company or such other person nominated by the Company a sample of the Goods within 14 days, carriage paid by the Customer, for inspection, examination and testing and/or otherwise permit the Company to have access to the Goods at the Customer’s premises or other location where they may be for such purposes and/or permit the Company access to the site where the Additional Services were performed for such purposes.
5.5 The warranties set out in the Contract are the only warranties which shall be given by the Company and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6 Provision of Services
6.1 Where the Company is to perform Additional Services at the Customer’s premises, the Customer shall procure safe access to the premises and the provision of adequate power, lighting, heating and other such facilities or supplies for the Company’s employees or agents in accordance with the demands of any applicable legislation and as the Company shall reasonably require.
6.2 The relevant element of the Contract price relating to the Additional Services shall be due and payable before such Additional Services are carried out.
6.3 The Additional Services will be deemed to be completed:
(a) when they have been completed to the Company’s satisfaction; or
(b) if the Company is available to perform the Additional Services but is prevented from doing so by reason of the lack of relevant assistance from the Customer (such as lack of availability of test components or parts from the Customer); and/or
(c) if the Company is available to perform the Additional Services but is prevented from doing so by reason of the condition of the Customer premises on the site at which the Additional Services are to be provided and/or the facilities at or the services available therein at the time agreed for the provision of the Additional Services.
7 Exclusion and Limitation of Liability
7.1 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with Defective Goods shall be limited to the lower of 20 times the price of the Defective Goods or £500,000 (five hundred thousand pounds).
7.2 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, in respect of all claims not subject to Condition 7.1, arising in connection with the performance or contemplated performance of the Contract shall be limited to £50,000 (fifty thousand pounds).
7.3 The Company shall not be liable to the Customer (whether in contract, tort, negligence, breach of statutory duty or otherwise) however arising (whether relating to the Goods, Additional Services or otherwise) for:
(a) any loss of profit, wasted costs or other economic loss (direct or indirect); and/or
(b) any loss or damage or liability which the Customer incurs due to delay in its works or project (direct or indirect); and/or
(c) any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused).
7.4 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence, or for fraudulent misrepresentation.
8 Customers Indemnity
8.1 The Customer irrevocably and unconditionally agrees to indemnify the Company, its employees, sub-contractors and agents in full and on demand and keep them so indemnified against all claims, demands, actions, proceedings and all damages, losses, costs and expenses (including without limitation legal and other professional advisers’ fees and all consequential and economic loss (including without limitation loss of profit, future revenue, reputation or goodwill and anticipated savings) whether direct or indirect made against or incurred or suffered by any of them directly or indirectly and whether wholly or in part resulting from the matters listed below whether or not such losses or the consequences of the matters listed below were foreseeable at the date of the Contract:
(a) the manufacture and sale of the Goods by the Company in accordance with the Customer’s specifications or other data or information furnished or instructions given by the Customer; and/or
(b) any breach by the Customer of its obligations under the Contract; and/or
(c) any breach by the Company of its obligations under the Contract or any other act or omission (including, without limitation, negligence) of the Company, its employees and agents in excess of the liability of the Company under the Contract.
9 Subcontracting, Assignment and Third Party Rights
9.1 The Customer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of the Company.
9.2 The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person or Group Company. The Customer irrevocably consents to novation of the Company’s rights and obligations pursuant to the Contract to any Group Company.
9.3 A Group Company may enforce any term of the Contract. Save for the Group Companies, no other person who is not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) or otherwise) to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Company and the Customer which agreement must refer to this Condition 9.3.
9.4 Even if a person who is not a party to the Contract has a right to enforce any term of the Contract by virtue of Section 1 of the Act, the parties may, notwithstanding Section 2(1) of the Act, vary or cancel the Contract by agreement between them without requiring the consent of such third party.
10 Force Majeure
The Company has no liability, and reserves the right to suspend or cancel the Contract in whole or in part (without liability to the Customer), if it is prevented from or delayed in the carrying on of its business and its obligations under the Contract due to any circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, strikes, lock outs or other industrial action (whether of the Company’s own employees or others), failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services (an “Event of Force Majeure”) provided that, if the Event of Force Majeure continues for a continuous period in excess of 90 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
11 Breach of Contract or Insolvency
11.1 The Company may immediately suspend performance of the Contract, cancel any outstanding delivery of the Goods, cease the provision of any Additional Services, stop any Goods in transit or by notice in writing to the Customer terminate the Contract without liability to the Company if:
(a) the Customer commits a material breach of any of its obligations under the Contract which is incapable of remedy or fails to remedy any breach of its obligations under the Contract which is capable of remedy, or persists in any breach of any of its obligations under the Contract after having been requested in writing by the Company to remedy or desist from such breach within a period of 14 days; or
(b) the Customer suspends, or threatens to suspend, payment of its debts (whether principal or interest) or is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; calls a meeting, gives a notice, passes a resolution or files a petition, or an order is made, in connection with the winding up of that party (save for the sole purpose of a solvent voluntary reconstruction or amalgamation); has an application to appoint an administrator made or a notice of intention to appoint an administrator filed or an administrator is appointed in respect of it or all or any part of its assets; has a receiver or administrative receiver appointed over all or any part of its assets or a person becomes entitled to appoint a receiver or administrative receiver over such assets; takes any steps in connection with proposing a company voluntary arrangement or moratorium or a company voluntary arrangement is passed or moratorium obtained in relation to it, or it commences negotiations with all or any of its creditors with a view to rescheduling any of its debts; or has any steps taken by a secured lender to obtain possession of the property on which it has security or otherwise to enforce its security; or has any distress, execution or sequestration or other such process levied or enforced on any of its assets; has any proceeding taken, with respect to it in any jurisdiction to which it is subject, or any event happens in such jurisdiction that has an effect equivalent or similar to any of the events in this Condition 11.1(b); or
(c) any sum payable under the Contract is not paid within seven days of its due date for payment in accordance with the Contract.
11.2 Notwithstanding any such termination or suspension in accordance with Condition 11.1 above the Customer shall pay the Company for all Goods and/or Additional Services delivered up to and including the date of suspension or termination.
11.3 Termination of the Contract for any reason shall be without prejudice to the rights and remedies of either party which may have accrued up to termination.
12 General
12.1 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
12.2 The waiver by either party of any breach of the Contract shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
12.3 If at any time any one or more of the Conditions or part of them of the Contract is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Contract and the validity and/or enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired as a result of that omission.
12.4 The Company may record phone calls it makes to, or receives from, the Customer. Any personal data shall be collected, processed and stored in accordance with the CEMEX Privacy Policy available on cemex.co.uk.
12.5 Any communication between the parties relating to the obligations of the Contract must be in writing and delivered by hand (when delivery shall be deemed to be the day of delivery) or sent by pre-paid first class post (when delivery shall be deemed to be 48 hours after posting) to, in the case of the Company, the address set out above, and in the case of the Customer, to its registered address, or such change of address as shall be notified to either party by the other. Pre-contractual communications, including any orders or Quotations, may be sent by email to such email addresses as the parties agree.
12.6 The Contract sets out the entire agreement and understanding between the Customer and the Company in connection with the sale of the Goods and/or delivery of the Additional Services and shall supersede and replace all documentation previously issued by the Company purporting to set out its terms and conditions of sale of the Goods and/or delivery of the Additional Services. The parties acknowledge that this agreement has not been entered into wholly or partly in reliance on, nor has either party been given, any warranty, statement, promise or representation by the other or on its behalf other than as expressly set out in this agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with any warranties, statements, promises or representations will be for breach of contract and irrevocably and unconditionally waives any right it may have to any claim, rights or remedies including any right to rescind this agreement which it might otherwise have had in relation to them.
12.7 The Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of England and Wales
12.8 All disputes or claims arising out of or relating to the Contract shall be subject to the exclusive jurisdiction of the English and Welsh Courts to which the parties irrevocably submit.
CEMEX UK CEMENT LIMITED STANDARD CONDITIONS OF SALE
*UPDATED JUNE 2022
THE CUSTOMER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS EXCLUDING OR LIMITING LIABILITY IN CONDITIONS 3, 6 AND 7
1. Definitions and Interpretation
In these Conditions the following words have the following meanings:
“Additional Services” means those services provided by the Company;
“Company” means CEMEX UK Cement Limited (Registered No: 00475212) whose registered office is at CEMEX House, Evreux Way, Rugby, Warwickshire, CV21 2DT;
“Contract” means any contract between the Company and the Customer for the sale of Goods and provision of Additional Services (if any), incorporating these Conditions;
“Customer” means the person(s), firm or company who purchases the Goods and/or Additional Services from the Company;
"Event of Force Majeure" means as defined in Condition 10;
"Goods" means any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them and pallets where applicable);
“Group Company” means any subsidiary or holding company of the Company and any subsidiary company of any of them (in each case from time to time) (and the terms “subsidiary” and “holding company” shall have the meanings given to them by Section 1159 of the Companies Act 2006);
“Part-Load/Small Load Premium Charge” means the charge for part-loads set out in the Supplementary Charges List;
“Redirection Charge” means the charge for re-direction of a load after despatch set out in the Supplementary Charges list;
“Returned Material Charge” means the charge for returning and disposing of material set out in the Supplemental Charges List;
“Split Load Charge” means the charge for split loads set out in the Supplementary Charges List;
“Sunday and Bank Holiday Delivery Charge” means the charge set out in the Supplementary Charges List;
“Supplementary Charges List” means the document setting out the prices of the additional costs chargeable by the Company including without limitation the Part- Load/Small Load Premium Charge, the Returned Material Charge, the Redirection Charge, the Split Load Charge, the Sunday and Bank Holiday Delivery Charge and the Waiting Time Charge, as published or issued from time to time by the Company;
“Waiting Time Charge” means the charge set out in the Supplementary Charges List.
2. Basis of Contract
2.1 Subject to any variation under Condition 2.3 the Contract will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).
2.2 Each order for Goods and/or Additional Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Additional Services subject to these Conditions. It is the Customer’s obligation to ensure that the terms of its order and any applicable specification are complete and accurate.
2.3 Subject to Condition 2.10, any variation to these Conditions and any representations about the Goods and/or Additional Services shall have no effect unless expressly agreed in writing and executed by a director of the Company.
2.4 The Company contracts as a supplier only and shall not be bound by nor imputed with any knowledge of any contract between the Customer and any other person.
2.5 No order placed by the Customer shall be deemed to be accepted by the Company until a written quote is issued by the Company or (if earlier) the Company commences appropriation of the Goods to the Customer’s order or despatch of the Goods and/or provides the Additional Services to the Customer. Any order shall be accepted entirely at the discretion of the Company. The Company may terminate a Contract on giving 21 days’ written notice to the Customer.
2.6 Any quotation or estimate made by the Company is given subject to these Conditions. Without prejudice to the Company’s right not to accept an order, quotations will be valid for 30 days from date of issue.
2.7 All Goods and Additional Services are sold by reference to the Company’s specification for those Goods and Additional Services in force at the date of the Company’s acknowledgement of order.
2.8 Any cancellation or delay of an order by the Customer after despatch of the Goods or if the Company cannot deliver an order due to the failure of the Customer to comply with its obligations pursuant to Condition 3.2, 3.5 and 3.6, is subject to payment by the Customer of the Returned Material Charge.
2.9 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the properties or use of the Goods by the Company is followed or acted upon entirely at the Customer’s own risk and the Company shall not be liable for any such advice or recommendation.
2.10 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.11 The description of the Goods and/or Additional Services shall be set out in the Company’s acknowledgement of order or, in its absence, the Company’s quotation.
2.12 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions, details or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Additional Services described in them and they will not form part of the Contract unless otherwise agreed in writing by the Company.
3. Delivery and Acceptance of Goods
3.1 Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at a discharge point agreed between the Customer and the Company in normal working hours. The Customer must ensure an authorised person signs the delivery docket.
3.2 The Customer shall provide and clearly indicate to the Company a safe and proper route from the metalled highway to the agreed discharge point and shall indemnify the Company (both for its own benefit and also as agent and trustee for any other person operating any vehicle making a delivery) against damage or loss which may result from a failure to do so.
3.3 Any dates or time of day specified by the Company for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates or times are so specified, delivery will be within a reasonable time. If for any reason the Customer requests that the Company delay delivery, the Company reserves the right to charge the Customer a Returned Material Charge and/or Redirection Charge and/or other costs incurred by the Company.
3.4 If for any reason the Customer does not accept delivery of any of the Goods within the sum of 60 minutes of when the Goods arrive and are available for discharge at the agreed discharge point, the Company reserves the right to charge the Customer the Waiting Time Charge.
3.5 The Customer will provide at his expense at the place of delivery adequate and appropriate equipment, labour and access for unloading the Goods.
3.6 The Customer shall provide:
(a) an authorised representative to accept the Goods;
(b) all appropriate instructions concerning the delivery of the Goods;
(c) an appropriate access to the discharge point;
(d) all applicable documents; and
(e) a discharge point which is compliant with health and safety legislation and regulations, licences or authorisations.
3.7 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary. Any claim that the correct quantity of Goods has not been delivered must be made within 24 hours of the delivery and confirmed in writing within seven days.
3.8 At the anticipated time of delivery the Customer shall ensure that an authorised person is present at the agreed discharge point to accept the Goods and to sign the delivery docket. Any signature will be legible and accompanied with a legible printed name.
3.9 The Customer shall ensure that an authorised person shall sign a delivery docket on delivery. By signing the delivery docket the Customer:
(a) acknowledges that the product description set out on such delivery docket describes the Goods required by the Customer;
(b) confirms the times of arrival of the truck at the agreed point of discharge and of completion of discharge; and
(c) acknowledges receipt of delivery and the quantity of Goods shown on the delivery docket.
3.10 The Customer will be deemed to have accepted the Goods as being in accordance with the Contract unless:
(a) within 7 days of the date of delivery of the Goods, the Customer notifies the Company in writing of any defect or other failure of the Goods to conform with the Contract (which would be apparent upon reasonable inspection and testing of the Goods within 7 days); or
(b) the Customer notifies the Company in writing of any defect or other failure of the Goods to conform with the Contract within a reasonable time where the defect or failure would not be so apparent within 7 days of the date of delivery, failing which the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
3.11 The Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Customer to terminate or rescind the Contract.
3.12 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in the Company (even though they have been delivered and risk has passed to the Customer) until:
(a) payment in full, in cash or cleared funds, for all the Goods has been received by the Company; and
(b) all other money payable by the Customer to the Company on any other account or under the Contract or any other contract has been received by the Company.
3.13 Risk in the Goods shall pass on delivery.
3.14 Until full legal, beneficial and equitable title to and property in the Goods passes to the Customer:
(a) the Customer shall hold the Goods on a fiduciary basis as the Company’s bailee;
(b) the Customer shall store the Goods and shall insure them, without any charge to the Company, and not tamper with any identification upon the Goods and the Company shall be entitled to examine any such Goods in storage at any time during normal business hours upon giving the Customer reasonable notice of its intention to do so;
(c) the Company may at any time, on demand and without prior notice, require the Customer to deliver the Goods up to the Company and the Company may repossess and resell the Goods if any of the events specified in Condition 11.1 occurs or if any sum due to the Company from the Customer under the Contract or on any other account or under any other contract is not paid when due;
(d) for the purposes of this Condition 3.14 the Company, its employees, agents and sub-contractors will be entitled to free and unrestricted access to any premises owned, occupied or controlled by the Customer and/or any other location where any of the Goods are situated at any time without prior notice;
(e) the Company shall be entitled to maintain an action against the Customer for the price of the Goods notwithstanding that legal, equitable and beneficial title to and property in the Goods has not passed to the Customer; and
(f) the Company hereby authorises the Customer to use the Goods in the normal course of the Customer’s business. This right shall automatically cease on the occurrence of any event set out in Condition 11.1 and/or if any sum owed to the Company by the Customer is not paid when due.
3.15 The Company shall be entitled at its discretion to make delivery of the Goods by instalments and to invoice the Customer for each instalment individually. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated or to refuse to accept subsequent instalments.
4. Price and Payment
4.1 Unless otherwise agreed by the Company in writing the price for the Goods, and/or Additional Services and/or set out in the Supplementary Charges List shall be the price set out in any quotation and/or the Supplementary Charges List as at the date of delivery.
4.2 The Company reserves the right, by giving notice to the Customer at any time before delivery, to amend any quotation and/or price and/or charge set out in the Supplementary Charges List to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including, without limitation, any increase in the costs of labour, fuel, materials, or other costs of manufacture or supply), any change in the quantities of the Goods and/or Additional Services requested by the Customer or any change in the delivery dates or location for the Goods and/or Additional Services requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
4.3 Unless otherwise agreed in writing the prices for the Goods shall include costs or charges in relation to delivery but are not inclusive of the charges set out in the Supplementary Charges List. For the avoidance of doubt, this does not affect the Company’s right to charge for delivery related charges as set out herein.
4.4 The price for the Goods, Additional Services and/or set out in the Supplementary Charges List shall be exclusive of value added tax and any other taxes and duties or levies all of which amounts the Customer will pay in addition when it is due to pay for the Goods and/or Additional Services and/or the charges set out in the Supplementary Charges List.
4.5 The Company reserves the right to levy the Part-Load/Small Load Premium Charge, where the Customer orders less than a full load. Details of load capacities can be obtained from the Company upon request.
4.6 The Company reserves the right to make a charge for delivery of the Goods and/or Additional Services on the request of the Customer at a specific time or outside normal working hours.
4.7 Except where otherwise agreed by the Company or where the Customer is a credit account holder, payment of the price for the Goods and/or Additional Services (plus any additional charges in the Supplementary Charges List that have been incurred or are anticipated by the Company to be incurred on or before delivery) is due before dispatch of the Goods and/or completion of the Additional Services. Any other charges are due as they are incurred (unless agreed otherwise with the Customer). Time of payment for the Goods and/or Additional Services and any additional charges in the Supplementary Charges List shall be of the essence.
4.8 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
4.9 The Company shall be entitled to apply any amount due to the Customer under this or any other agreement in or towards payment of any sum owing by the Customer to the Company in relation to any matter whatsoever.
4.10 If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and the Company shall be entitled to:
(a) cancel or suspend its performance of the Contract or any order including suspending deliveries of the Goods and/or Additional Services; and/or
(b) require the Customer to pay for Goods prior to their despatch or collection from the Company’s place of business; and/or
(c) charge the Customer
(i) interest calculated on a daily basis on all overdue amounts (both before and after judgement) until actual payment at the statutory rate of interest for commercial debts prevailing from time to time until payment is made in full; and
(ii) the cost of obtaining judgement or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
4.11 Any credit facility given to the Customer by the Company may be altered or withdrawn by the Company at any time.
5. Samples
The supply of goods or materials under these Conditions or any Contract shall not be deemed to be a sale by sample. Any samples of goods or materials submitted or shown to you are intended to indicate the substance general character and where relevant general colour of the goods and materials only and no liability is accepted if the bulk of the goods or materials do not correspond with the sample.
6. Warranty of Quality of Goods
6.1 The Company warrants that the Goods supplied pursuant to a Contract shall at the point of delivery be materially in accordance with any specification for them which the Company has agreed with the Customer in writing, and if no such specification the Company's standard specification for such Goods. Where no specification applies the Company warrants that at the point of delivery the Goods shall be of satisfactory quality within the meaning of Section 14(2A) Sale of Goods Act 1979. Except for this express warranty no other representation or warranty is given by the Company as to the quality of the Goods or suitability or fitness of the Goods for any particular purpose. The Customer is obliged to satisfy itself that the Goods will be fit for the particular purpose it requires.
6.2 Subject to Conditions 6.3 and 6.4, if the Customer establishes to the Company’s reasonable satisfaction that there is a material defect in the Goods, and such defect is the fault of the Company, or the Additional Services have not been performed with reasonable care and skill, then the Company shall at its option, at its sole discretion and within a reasonable time:
(a) subject to the reasonable co-operation of the Customer, remove the defective Goods free of charge to the Customer and replace such Goods with Goods which are in all respects in accordance with the Contract (including the cost of transporting the Goods to and from the Customer for that purpose) or re-perform such defective Additional Services; or
(b) issue a credit note to the Customer in respect of the whole or part of the Contract price of such Goods and/or Additional Services plus the reasonable costs of removing the defective Goods or re-performing such Additional Services;
and performance of any one of the above options shall constitute an entire discharge of the Company’s liability under this warranty and shall be the Company’s sole and exclusive remedy.
6.3 The Company shall be under no liability under the warranty at Condition 6.2 above:
(a) in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Company’s approval; and/or
(b) if the total price for the Goods and/or the Additional Services and/or any additional charges in the Supplementary Charges List have not been paid by the due date for payment; and/or
(c) for any Goods manufactured or appropriated to the Contract in accordance with any specification, instruction or recommendation made to the Company by the Customer; and/or
(d) for any Additional Services performed in accordance with the Customer’s instructions; and/or
(e) in respect of any type of defect, damage or wear specifically excluded by the Company by notice in writing; and/or
(f) for any Goods that are used after expiry of the recommended shelf-life; and/or
(g) an error on the part of the Customer in its use of the Goods; and/or
(h) continued use by the Customer after it becomes aware of a defect; and/or
(i) an Event of Force Majeure.
6.4 If the Customer believes that there is a defect or other non conformance of the Goods and/or the Additional Services with the Contract then the Customer shall give:
(a) written notification of such alleged defect to the Company which notice shall include details of such suspected non-conformance or defect as soon as such defect or non conformance is suspected or discovered or ought to have been discovered but in any event within 40 days after delivery of the Goods or within 24 hours if the volume of Goods delivered do not correspond to the volume shown on the delivery docket; and
(b) the Company a reasonable opportunity to inspect the relevant Goods or the location at which the Additional Services were performed and, if so requested by the Company and, promptly return to the Company or such other person nominated by the Company a sample of the Goods within 14 days, carriage paid by the Customer, for inspection, examination and testing and/or otherwise permit the Company to have access to the Goods at the Customer’s premises or other location where they may be for such purposes and/or permit the Company access to the site where the Additional Services were performed for such purposes.
6.5 The warranties set out in the Contract are the only warranties which shall be given by the Company and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7. Exclusion and Limitation of Liability
7.1 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the Contract shall be limited to the lower of three times the price of the Goods or Additional Services that were not in conformity with these Conditions or £50,000 (fifty thousand pounds).
7.2 The Company shall not be liable to the Customer (whether in contract, tort, negligence, breach of statutory duty or otherwise) however arising (whether relating to the Goods, Additional Services or otherwise) for:
(a) any loss of profit, wasted costs or other economic loss (direct or indirect); and/or
(b) any loss or damage or liability which the Customer incurs due to delay in its works or project (direct or indirect); and/or
(c) any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused).
7.3 The Company shall not be liable to the Customer for the use of the Goods following the expiry of the recommended shelf life or if the Goods are not stored in the conditions recommended by the Company. Details of recommended storage conditions can be obtained from the Company upon request.
7.4 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence, or for fraudulent misrepresentation.
8. Customer’s Indemnity
8.1 The Customer irrevocably and unconditionally agrees to indemnify the Company, its employees, sub-contractors and agents (who shall have no duty to mitigate their loss) in full and on demand and keep them so indemnified against all claims, demands, actions, proceedings and all damages, losses, costs and expenses (including without limitation legal and other professional advisers’ fees and all consequential and economic loss (including without limitation loss of profit, future revenue, reputation or goodwill and anticipated savings)) whether direct or indirect made against or incurred or suffered by any of them directly or indirectly and whether wholly or in part resulting from the matters listed below whether or not such losses or the consequences of the matters listed below were foreseeable at the date of the Contract:
(a) the manufacture and sale of the Goods by the Company in accordance with the Customer’s specifications or other data or information furnished or instructions given by the Customer; and/or
(b) any damage to the Company’s vehicles or other equipment whilst delivering the Goods caused by the acts or omissions of the Customer or its employees and agents; and/or
(c) any breach by the Company of its obligations under the Contract or any other act or omission (including, without limitation, negligence) of the Company, its employees and agents in excess of the liability of the Company under the Contract.
9. Subcontracting, Assignment and Third Party Rights
9.1 The Customer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of the Company.
9.2 The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person or Group Company. The Customer irrevocably consents to novation of the Company’s rights and obligations pursuant to the Contract to any Group Company.
9.3 A Group Company may enforce any term of the Contract. Save for the Group Companies, no other person who is not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) or otherwise) to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Company and the Customer which agreement must refer to this Condition 9.3.
9.4 Even if a person who is not a party to the Contract has a right to enforce any term of the Contract by virtue of Section 1 of the Act, the parties may, notwithstanding Section 2(1) of the Act, vary or cancel the Contract by agreement between them without requiring the consent of such third party.
10. Force Majeure
The Company has no liability, and reserves the right to suspend or cancel the Contract in whole or in part (without liability to the Customer), if it is prevented from or delayed in the carrying on of its business and its obligations under the Contract due to any circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, strikes, lock outs or other industrial action (whether of the Company’s own employees or others), failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services (an “Event of Force Majeure”) provided that, if the Event of Force Majeure continues for a continuous period in excess of 90 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
11. Breach of Contract or Insolvency
11.1 The Company may immediately suspend performance of the Contract, cancel any outstanding delivery of the Goods, cease the provision of any Additional Services, stop any Goods in transit or by notice in writing to the Customer terminate the Contract without liability to the Company if:
(a) the Customer commits a material breach of any of its obligations under the Contract which is incapable of remedy or fails to remedy any breach of its obligations under the Contract which is capable of remedy, or persists in any breach of any of its obligations under the Contract after having been requested in writing by the Company to remedy or desist from such breach within a period of 14 days; or
(b) the Customer suspends, or threatens to suspend, payment of its debts (whether principal or interest) or is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; calls a meeting, gives a notice, passes a resolution or files a petition, or an order is made, in connection with the winding up of that party (save for the sole purpose of a solvent voluntary reconstruction or amalgamation); has an application to appoint an administrator made or a notice of intention to appoint an administrator filed or an administrator is appointed in respect of it or all or any part of its assets; has a receiver or administrative receiver appointed over all or any part of its assets or a person becomes entitled to appoint a receiver or administrative receiver over such assets; takes any steps in connection with proposing a company voluntary arrangement or moratorium or a company voluntary arrangement is passed or moratorium obtained in relation to it, or it commences negotiations with all or any of its creditors with a view to rescheduling any of its debts; or has any steps taken by a secured lender to obtain possession of the property on which it has security or otherwise to enforce its security; or has any distress, execution or sequestration or other such process levied or enforced on any of its assets; has any proceeding taken, with respect to it in any jurisdiction to which it is subject, or any event happens in such jurisdiction that has an effect equivalent or similar to any of the events in this Condition 11.1(b); or
(c) any sum payable under the Contract is not paid within seven days of its due date for payment in accordance with the Contract.
11.2 Notwithstanding any such termination or suspension in accordance with Condition 11.1 above the Customer shall pay the Company for all Goods and/or Additional Services delivered up to and including the date of suspension or termination.
11.3 Termination of the Contract for any reason shall be without prejudice to the rights and remedies of either party which may have accrued up to termination.
12. General
12.1 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
12.2 The waiver by either party of any breach of the Contract shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
12.3 If at any time any one or more of the Conditions or part of them of the Contract is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Contract and the validity and/or enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired as a result of that omission.
12.4 The Company may record phone calls it makes to, or receives from, the Customer. Any personal data shall be collected, processed and stored in accordance with the Company’s Privacy Policy available on cemex.co.uk.
12.5 Any communication between the parties relating to the obligations of the Contract must be in writing and delivered by hand (when delivery shall be deemed to be the day of delivery) or sent by pre-paid first class post (when delivery shall be deemed to be 48 hours after posting) to, in the case of the Company, the address set out above, and in the case of the Customer, to its registered address, or such change of address as shall be notified to either party by the other. Pre-contractual communications, including any orders, may be sent by email to such email addresses as the parties agree.
12.6 The Contract sets out the entire agreement and understanding between the Customer and the Company in connection with the sale of the Goods and/or delivery of the Additional Services and shall supersede and replace all documentation previously issued by the Company purporting to set out its terms and conditions of sale of the Goods and/or delivery of the Additional Services. The parties acknowledge that this agreement has not been entered into wholly or partly in reliance on, nor has either party been given, any warranty, statement, promise or representation by the other or on its behalf other than as expressly set out in this agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with any warranties, statements, promises or representations will be for breach of contract and irrevocably and unconditionally waives any right it may have to any claim, rights or remedies including any right to rescind this agreement which it might otherwise have had in relation to them.
12.7 The Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of England and Wales.
12.8 All disputes or claims arising out of or relating to the Contract shall be subject to the exclusive jurisdiction of the English and Welsh Courts to which the parties irrevocably submit.
1 Definitions and Interpretation
1.1 In these Conditions the following words have the following meanings:
“Additional Services” means those services provided by the Company;
“Additional Services Price List” means the document setting out the prices of the Additional Services as published or issued from time to time by the Company;
“Cancellation Charge” means the charge for cancellation set out in the Sundries Price List;
“Company” means CEMEX UK Materials Limited (Registered No: 4895833) whose registered office is at CEMEX House, Evreux Way, Rugby, Warwickshire CV21 2DT;
“Contract” means any contract between the Company and the Customer for the sale of Goods and provision of Additional Services / Sundries, incorporating these Conditions;
“Customer” means the person(s), firm or company who purchases the Goods and/or Additional Services / Sundries from the Company;
“Defective Goods” has the meaning given in condition 5.2;
“Event of Force Majeure” has the meaning given in Condition 9;
“Goods” means any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them and pallets where applicable);
“Group Company” means any subsidiary or holding company of the Company and the ultimate holding company of the Company and any subsidiary company of any of them (in each case from time to time) (and the terms “Subsidiary” and “Holding Company” shall have the meanings given to them by Section 1159 of the Companies Act 2006);
“Part Load Charge” means the charge for part loads set out in the Sundries Price List;
“Quotation” means the documents issued by the Company which set out the prices of the Goods and/or the applicable Additional Services / Sundries as published or issued from time to time by the company;
“Returned Load Charge” means the charge for returning and disposing of material set out in the Sundries Price List;
“Standing Time Charge” means the charge for waiting at the disposal point set out in the Sundries Price List;
“Sundries Costs” means the additional charges chargeable by the Company including without limitation the Cancellation Charge, the Part Load Charge, the Returned Load Charge, and the Standing Time Charge;
“Sundries Price List” means the document setting out the Sundries Costs (in addition to what is set out in the Quotation) as published or issued from time to time by the Company.
2 Basis of Contract
2.1 Subject to any variation under Condition 2.3, the Contract will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).
2.2 Each order for Goods and/or Additional Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Additional Services subject to these Conditions. It is the Customer’s obligation to ensure that the terms of its order and any applicable specification are complete and accurate.
2.3 Subject to Condition 2.10, any variation to these Conditions and any representations about the Goods and/or Additional Services shall have no effect unless expressly agreed in writing and executed by a director of the Company.
2.4 No order placed by the Customer shall be deemed to be accepted by the Company until a Quotation is issued by the Company or (if earlier) the Company commences manufacture or mixing of the Goods, their appropriation to the Customer’s order or despatch of the Goods to the Customer and/or provide the Additional Services. Any order shall be accepted entirely at the discretion of the Company.
2.5 Any Quotation or estimate made by the Company is given subject to these Conditions. Without prejudice to the Company’s right not to accept an order, Quotations will be valid for 30 days from date of issue.
2.6 For Goods specified in the contract as supplied to European standards, evaluation of conformity of the Goods with such standards, including sampling and testing, shall be carried out in accordance with the relevant procedures set out in those standards.
2.7 All Goods are sold by reference to the Company’s specification for those Goods in force at the date of the Company’s acknowledgement of order and available to the Customer on request.
2.8 Any cancellation or delay of an order by the Customer on or after 3pm on the working day before the order is due to be fulfilled, or if the Company cannot deliver an order due to a failure of the Customer to comply with its obligations pursuant to Condition 3.2 or 3.6, is subject to payment by the Customer of:
(a) the Cancellation Charge; and
(b) the Returned Load Charge.
2.9 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the use of the Goods by the Company is followed or acted upon entirely at the Customer’s own risk, such advice and/or recommendation should not be relied upon.
2.10 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.11 The description of the Goods and/or Additional Services shall be set out in the Company’s acknowledgement of order and/or, the Quotation.
2.12 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions, details or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Additional Services described in them and they will not form part of the Contract unless otherwise agreed in writing by the Company.
3 Delivery and Acceptance of Goods
3.1 Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at a discharge point agreed between the Customer and the Company in normal working hours.
3.2 The Customer shall provide and clearly indicate to the Company a safe and proper route from a metalled highway to the agreed discharge point.
3.3 Any dates or time of day specified by the Company for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates or times are so specified, delivery will be within a reasonable time.
3.4 The Company shall not be liable to any Customer (whether in contract, tort, negligence, breach of statutory duty or otherwise) for any damages whether direct, indirect or consequential (including but not limited to any economic loss or loss of profits) resulting from any delay in delivery or failure to deliver within any agreed time period or as a result of the Customer not providing sufficient notice to cancel or vary an order under Condition 2.8.
3.5 If for any reason the Customer does not accept delivery of any of the Goods within the sum of 30 minutes of when the Goods arrive and are available for discharge at the agreed discharge point, the Company reserves the right to charge the Customer the Standing Time Charge.
3.6 The Customer shall provide:
(a) an authorised representative to accept the Goods;
(b) all appropriate instructions concerning the delivery of the Goods;
(c) an appropriate access to the discharge point;
(d) all applicable documents; and
(e) a discharge point which is compliant with health and safety legislation and regulations, licences or authorisations.
3.7 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
3.8 Given the nature of the Goods, the Customer will be deemed to have accepted the Goods as being in accordance with the Contract on signature of the delivery docket or on delivery, whichever is the earlier and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
3.9 At the anticipated time of delivery the Customer shall ensure that an authorised person is present at the agreed discharge point to accept the Goods and to sign the delivery docket. Any signature will be legible and accompanied with a legible printed name.
3.10 The Customer shall ensure that an authorised person shall sign a delivery docket on delivery. By signing the delivery docket the Customer:
(a) acknowledges that the product description set out on such delivery docket describes the Goods required by the Customer;
(b) confirms the times of arrival of the truck at the agreed point of discharge and of completion of discharge; and
(c) acknowledges receipt of delivery.
3.11 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in the Company (even though they have been delivered and risk has passed to the Customer) until:
(a) payment in full, in cash or cleared funds, for all the Goods has been received by the Company; and
(b) all other money payable by the Customer to the Company on any other account or under the Contract or any other contract has been received by the Company.
3.12 Risk in the Goods shall pass on delivery.
3.13 Until full legal, beneficial and equitable title to and property in the Goods passes to the Customer:
(a) the Customer shall hold the Goods on a fiduciary basis as the Company’s bailee;
(b) the Customer shall store the Goods and shall insure them, without any charge to the Company, and not tamper with any identification upon the Goods and the Company shall be entitled to examine any such Goods in storage at any time during normal business hours upon giving the Customer reasonable notice of its intention to do so;
(c) the Company may at any time, on demand and without prior notice, require the Customer to deliver the Goods up to the Company and the Company may repossess and resell the Goods if any of the events specified in Condition 10.1 occurs or if any sum due to the Company from the Customer under the Contract or on any other account or under any other contract is not paid when due;
(d) for the purposes of this Condition 3.13 the Company, its employees, agents and sub-contractors will be entitled to free and unrestricted access to any premises owned, occupied or controlled by the Customer and/or any other location where any of the Goods are situated at any time without prior notice;
(e) the Company shall be entitled to maintain an action against the Customer for the price of the Goods notwithstanding that legal, equitable and beneficial title to and property in the Goods has not passed to the Customer; and
(f) the Company hereby authorises the Customer to use the Goods in the normal course of the Customer’s business. This right shall automatically cease on the occurrence of any event set out in Condition 10.1 and/or if any sum owed to the Company by the Customer is not paid when due.
3.14 The Company shall be entitled at its discretion to make delivery of the Goods by instalments and to invoice the Customer for each instalment individually. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated or to refuse to accept subsequent instalments.
4 Price and Payment
4.1 Unless otherwise agreed by the Company in writing the price for the Goods and/or Additional Services and/or the Sundries Costs shall be the price set out in the Quotation and/or the Additional Services Price List and/or Sundries Price List as at the date of delivery.
4.2 The Company reserves the right, by giving notice to the Customer at any time before delivery, to amend the Quotation and/or the Additional Services Price List and/or the Sundries Price List to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including, without limitation, any increase in the costs of labour, fuel, materials, or other costs of manufacture or supply), any change in the quantities of the Goods and/or Additional Services requested by the Customer or any change in the delivery dates or location for the Goods and/or Additional Services requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
4.3 Unless otherwise agreed in writing the prices for the Goods shall include costs or charges in relation to delivery but are not inclusive of the charges for Additional Services and Sundries Costs. For the avoidance of doubt, this does not affect the Company’s right to charge for delivery related charges as set out herein.
4.4 The price for the Goods and/or Additional Services and/or the Sundries Costs shall be exclusive of value added tax and any other taxes and duties or levies all of which amounts the Customer will pay in addition when it is due to pay for the Goods and/or Additional Services and/or the Sundries Costs.
4.5 The Company reserves the right to levy the Part Load Charge, where the Customer orders less than a full load. Details of load capacities can be obtained from the Company upon request.
4.6 The Company reserves the right to make a charge for delivery of the Goods and/or the Additional Services on the request of the Customer at a specific time or outside normal working hours.
4.7 Except where otherwise agreed by the Company or where the Customer is a credit account holder, payment of the price for the Goods (plus Sundries Costs that have been incurred or are anticipated by the Company to be incurred on or before delivery) is due before dispatch of the Goods and/or completion of Additional Services. Any other charges are due as they are incurred (unless agreed otherwise with the Customer). Time for payment of the Goods, Additional Services and Sundries Costs shall be of the essence.
4.8 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
4.9 The Company shall be entitled to apply any amount due to the Customer under this or any other agreement in or towards payment of any sum owing by the Customer to the Company in relation to any matter whatsoever.
4.10 If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and the Company shall be entitled to:
(a) cancel or suspend its performance of the Contract or any order including suspending deliveries of the Goods and/or provision of the Additional Services; and/or
(b) require the Customer to pay for Goods prior to their despatch or collection from the Company’s place of business; and/or
(c) charge the Customer
(i) interest calculated on a daily basis on all overdue amounts (both before and after judgement) until actual payment at the statutory rate of interest for commercial debts prevailing from time to time until payment is made in full; and
(ii) the cost of obtaining judgement or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
Any credit facility given to the Customer by the Company may be altered or withdrawn by the Company at any time.
5 Warranty of Quality of Goods
5.1 The Company gives no warranty that Goods will be fit for any particular purpose unless this has been expressly agreed in writing between the parties to the Contract.
5.2 Subject to Conditions 5.3 and 5.4, if the Customer establishes to the Company’s reasonable satisfaction that there is a defect in the Goods or there is some other failure in relation to the conformity of the Goods with the Contract, and such non-conformity is the fault of the Company (such Goods shall be referred to as the “Defective Goods”), then the Company shall at its option, at its sole discretion and within a reasonable time:
(a) subject to the reasonable co-operation of the Customer, break up and remove the Defective Goods free of charge to the Customer and replace such Defective Goods with Goods which are in all respects in accordance with the Contract (including the cost of transporting the Goods to and from the Customer for that purpose); or
(b) issue a credit note to the Customer in respect of the whole or part of the Contract price of such Defective Goods and/or Additional Services plus the reasonable costs of breaking up and removing the Defective Goods or re-performing such Additional Services;
and performance of any one of the above options shall constitute an entire discharge of the Company’s liability under this warranty and shall be the Company’s sole and exclusive remedy.
5.3 The Company shall be under no liability under the warranty at Condition 5.2 above:
(a) in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Company’s approval; and/or
(b) if the total price for the Goods and/or the Additional Services and/or the Sundries Costs has not been paid by the due date for payment; and/or
(c) for any Goods manufactured or appropriated to the Contract in accordance with any specification, instruction or recommendation made to the Company by the Customer; and/or
(d) for failure to comply with the specification by reason of temperature reduction where there has been a delay in discharge of goods, or by placement of the goods in inclement weather; and/or
(e) in respect of any type of defect, damage or wear specifically excluded by the Company by notice in writing; and/or
(f) an Event of Force Majeure.
5.4 If the Customer believes that there is some defect or other non conformance of the Goods with the Contract then the Customer shall give:
(a) written notification of such alleged defect to the Company which notice shall include details of such suspected non-conformance or defect and the precise location of where such Goods were placed as soon as such defect or non conformance is suspected or discovered or ought to have been discovered but in any event within 40 days after delivery of the Goods or within 48 hours if the volume of Goods delivered do not correspond to the volume shown on the delivery docket; and
(b) the Company a reasonable opportunity to inspect the relevant Goods if so requested by the Company and, promptly return to the Company or such other person nominated by the Company a sample of the Goods within 14 days, carriage paid by the Customer, for inspection, examination and testing and/or otherwise permit the Company to have access to the Goods at the Customer’s premises or other location where they may be for such purposes.
5.5 The warranties set out in the Contract are the only warranties which shall be given by the Company and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6 Exclusion and Limitation of Liability
6.1 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with Defective Goods shall be limited to the lower of 20 times the price of the Defective Goods or £500,000 (five hundred thousand pounds).
6.2 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, in respect of all claims not subject to Condition 6.1, arising in connection with the performance or contemplated performance of the Contract shall be limited to £50,000 (fifty thousand pounds).
6.3 The Company shall not be liable to the Customer (whether in contract, tort, negligence, breach of statutory duty or otherwise) however arising (whether relating to the Goods, Additional Services or otherwise) for:
(a) any loss of profit or other economic loss (direct or indirect); and/or
(b) any loss or damage or liability which the Customer incurs due to delay in its works or project; and/or
(c) any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused).
6.4 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence, or for fraudulent misrepresentation.
7 Customers Indemnity
7.1 The Customer irrevocably and unconditionally agrees to indemnify the Company, its employees, sub-contractors and agents in full and on demand and keep them so indemnified against all claims, demands, actions, proceedings and all damages, losses, costs and expenses (including without limitation legal and other professional advisers’ fees and all consequential and economic loss (including without limitation loss of profit, future revenue, reputation or goodwill and anticipated savings)) whether direct or indirect made against or incurred or suffered by any of them directly or indirectly and whether wholly or in part resulting from the matters listed below whether or not such losses or the consequences of the matters listed below were foreseeable at the date of the Contract:
(a) the manufacture and sale of the Goods by the Company in accordance with the Customer’s specifications or other data or information furnished or instructions given by the Customer; and/or
(b) any breach by the Customer of its obligations under the Contract; and/or
(c) any breach by the Company of its obligations under the Contract or any other act or omission (including, without limitation, negligence) of the Company, its employees and agents in excess of the liability of the Company under the Contract.
8 Subcontracting, Assignment and Third Party Rights
8.1 The Customer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of the Company.
8.2 The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person or Group Company. The Customer irrevocably consents to novation of the Company’s rights and obligations pursuant to the Contract to any Group Company.
8.3 A Group Company may enforce any term of the Contract. Save for the Group Companies, no person who is not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) or otherwise) to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Company and the Customer which agreement must refer to this Condition 8.3.
8.4 Even if a person who is not a party to the Contract has a right to enforce any term of the Contract by virtue of Section 1 of the Act, the parties may, notwithstanding Section 2(1) of the Act, vary or cancel the Contract by agreement between them without requiring the consent of such third party.
9 Force Majeure
The Company reserves the right to suspend or cancel the Contract in whole or in part (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business and its obligations under the Contract due to any circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, strikes, lock outs or other industrial action (whether of the Company’s own employees or others), failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services (an “Event of Force Majeure”) provided that, if the Event of Force Majeure continues for a continuous period in excess of 90 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
10 Breach of Contract or Insolvency
10.1 The Company may immediately suspend performance of the Contract, cancel any outstanding delivery of the Goods, cease the provision of any Additional Services, stop any Goods in transit or by notice in writing to the Customer terminate the Contract without liability to the Company if:
(a) the Customer commits a material breach of any of its obligations under the Contract which is incapable of remedy or fails to remedy any breach of its obligations under the Contract which is capable of remedy, or persists in any breach of any of its obligations under the Contract after having been requested in writing by the Company to remedy or desist from such breach within a period of 14 days; or
(b) the Customer suspends, or threatens to suspend, payment of its debts (whether principal or interest) or is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; calls a meeting, gives a notice, passes a resolution or files a petition, or an order is made, in connection with the winding up of that party (save for the sole purpose of a solvent voluntary reconstruction or amalgamation); has an application to appoint an administrator made or a notice of intention to appoint an administrator filed or an administrator is appointed in respect of it or all or any part of its assets; has a receiver or administrative receiver appointed over all or any part of its assets or a person becomes entitled to appoint a receiver or administrative receiver over such assets; takes any steps in connection with proposing a company voluntary arrangement or a company voluntary arrangement is passed in relation to it, or it commences negotiations with all or any of its creditors with a view to rescheduling any of its debts; or has any steps taken by a secured lender to obtain possession of the property on which it has security or otherwise to enforce its security; or has any distress, execution or sequestration or other such process levied or enforced on any of its assets; has any proceeding taken, with respect to it in any jurisdiction to which it is subject, or any event happens in such jurisdiction that has an effect equivalent or similar to any of the events in this Condition 10.1(b); or
(c) any sum payable under the Contract is not paid within seven days of its due date for payment in accordance with the Contract.
10.2 Notwithstanding any such termination or suspension in accordance with Condition 10.1 above the Customer shall pay the Company for all Goods and/or Additional Services delivered up to and including the date of suspension or termination.
10.3 Termination of the Contract for any reason shall be without prejudice to the rights and remedies of either party which may have accrued up to termination.
11 General
11.1 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
11.2 The waiver by either party of any breach of the Contract shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
11.3 If at any time any one or more of the Conditions or part of them of the Contract is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Contract and the validity and/or enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired as a result of that omission.
11.4 The Company may record phone calls it makes to, or receives from, the Customer.
11.5 Any communication between the parties relating to the obligations of the Contract must be in writing and delivered by hand (when delivery shall be deemed to be the day of delivery) or sent by pre-paid first class post (when delivery shall be deemed to be 48 hours after posting) to, in the case of the Company, the address set out above, and in the case of the Customer, to its registered address, or such change of address as shall be notified to either party by the other. Pre-contractual communications, including any orders or Quotations, may be sent by email to such email addresses as the parties agree.
11.6 The Contract sets out the entire agreement and understanding between the Customer and the Company in connection with the sale of the Goods and/or delivery of the Additional Services and shall supersede and replace all documentation previously issued by the Company purporting to set out its terms and conditions of sale of the Goods. The parties acknowledge that this agreement has not been entered into wholly or partly in reliance on, nor has either party been given, any warranty, statement, promise or representation by the other or on its behalf other than as expressly set out in this agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with any warranties, statements, promises or representations will be for breach of contract and irrevocably and unconditionally waives any right it may have to any claim, rights or remedies including any right to rescind this agreement which it might otherwise have had in relation to them.
11.7 The Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of England and Wales unless the Goods are delivered in Scotland, in which case the Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of Scotland.
11.8 All disputes or claims arising out of or relating to the Contract shall be subject to the exclusive jurisdiction of the English and Welsh Courts to which the parties irrevocably submit unless the Goods are delivered in Scotland, in which case all disputes or claims arising out of or relating to the Contract shall be subject to the exclusive jurisdiction of the Scottish Courts to which the parties irrevocably submit.
August 2017
1 Definitions and Interpretation
1.1 In these Conditions the following words have the following meanings:
“Aggregate Levy” means a per tonne levy on all aggregates commercially exploited or imported in the UK, that is charged to quarry operators and other extractors of rock, sand, and gravel (with numerous exceptions);
“Cancellation Charge” means the charge for cancellation set out in the Services and Surcharges Price List;
“Company” means CEMEX UK Materials Limited (Registered No: 4895833) whose registered office is at CEMEX House, Evreux Way, Rugby, Warwickshire CV21 2DT;
“Contract” means any contract between the Company and the Customer for the sale of Goods and provision of Services, incorporating these Conditions;
“Customer” means the person(s), firm or company who purchases the Goods and/or Services from the Company;
“Environmental Surcharge” means a surcharge to cover costs imposed by government and regulators relating to extraction of mineral reserves;
“Event of Force Majeure” has the meaning given in Condition 9;
“Goods” means any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them and pallets where applicable);
“Group Company” means any subsidiary or holding company of the Company and the ultimate holding company of the Company and any subsidiary company of any of them (in each case from time to time) (and the terms “Subsidiary” and “Holding Company” shall have the meanings given to them by Section 1159 of the Companies Act 2006);
“Part Load Charge” means the charge for part loads set out in the Services and Surcharges Price List;
“Quotation” means the documents issued by the Company which set out the prices of the Goods and/or the applicable Services;
“Returned Materials Charge” means the charge for returning and handling material set out in the Services and Surcharges Price List;
“Services” means any services provided by the Company;
“Services and Surcharges Price List” means the document setting out the prices of additional services and surcharges as published or issued from time to time by the Company;
“Surcharges” means those charges made by the company including without limitation the Cancellation Charge, the Returned Materials Charge, the Aggregate Levy and the Environmental Surcharge; and
“Waiting Time Charge” means the charge for waiting at the disposal point as set out in the Services and Surcharges Price List.
2 Basis of Contract
2.1 Subject to any variation under Conditions 2.3 the Contract will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).
2.2 Each order for Goods and/or Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Conditions. It is the Customer’s obligation to ensure that the terms of its order and any applicable specification are complete and accurate.
2.3 Any variation to these Conditions and any representations about the Goods and/or Services shall have no effect unless expressly agreed in writing and executed by a director of the Company.
2.4 No order placed by the Customer shall be deemed to be accepted by the Company until a Quotation is issued by the Company or (if earlier) the Company commences loading and dispatching of the Goods, their appropriation to the Customer’s order or despatch of the Goods to the Customer or the Company commences provision of Services. Any order shall be accepted entirely at the discretion of the Company.
2.5 Any Quotation or estimate made by the Company is given subject to these Conditions. Without prejudice to the Company’s right not to accept an order, Quotations will be valid for 30 days from date of issue.
2.6 All Goods are sold and/or Services provided by reference to the Company’s specification for those Goods and/or Services in force at the date of the Company’s acknowledgement of order and available to the Customer on request.
2.7 Any cancellation or delay of an order by the Customer on or after 3pm on the working day before the order is due to be fulfilled, or if the Company cannot deliver an order due to a failure of the Customer to comply with its obligations pursuant to Condition 3.2 or 3.5, is subject to payment by the Customer of:
(a) the Cancellation Charge; and
(b) the Returned Materials Charge.
2.8 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the use of the Goods by the Company is followed or acted upon entirely at the Customer’s own risk, such advice and/or recommendation should not be relied upon.
2.9 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.10 The description of the Goods and/or Services shall be set out in the Company’s acknowledgement of order and/or the Quotation.
2.11 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions, details or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them and they will not form part of the Contract unless otherwise agreed in writing by the Company.
3 Delivery and Acceptance of Goods
3.1 Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at a discharge point agreed between the Customer and the Company in normal working hours.
3.2 The Customer shall provide and clearly indicate to the Company a safe and proper route from a metalled highway to the agreed discharge point.
3.3 Any dates or time of day specified by the Company for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates or times are so specified, delivery will be within a reasonable time.
3.4 If for any reason the Customer does not accept delivery of any of the Goods within the sum of 30 minutes of when the Goods arrive and are available for discharge at the agreed discharge point, the Company reserves the right to charge the Customer the Waiting Time Charge.
3.5 The Customer shall provide:
(a) an authorised representative to accept the Goods;
(b) all appropriate instructions concerning the delivery of the Goods;
(c) an appropriate access to the discharge point;
(d) all applicable documents; and
(e) a discharge point which is compliant with health and safety legislation and regulations, licences or authorisations.
3.6 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
3.7 Given the nature of the Goods, the Customer will be deemed to have accepted the Goods as being in accordance with the Contract on signature of the delivery docket or on delivery, whichever is the earlier and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
3.8 At the anticipated time of delivery the Customer shall ensure that an authorised person is present at the agreed discharge point to accept the Goods and to sign the delivery docket. Any signature will be legible and accompanied with a legible printed name.
3.9 The Customer shall ensure that an authorised person shall sign a delivery docket on delivery. By signing the delivery docket the Customer:
(a) acknowledges that the product description set out on such delivery docket describes the Goods required by the Customer;
(b) confirms the times of arrival of the truck at the agreed point of discharge and of completion of discharge; and
(c) acknowledges receipt of delivery.
3.10 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in the Company (even though they have been delivered and risk has passed to the Customer) until:
(a) payment in full, in cash or cleared funds, for all the Goods has been received by the Company; and
(b) all other money payable by the Customer to the Company on any other account or under the Contract or any other contract has been received by the Company.
3.11 Risk in the Goods shall pass on delivery.
3.12 Until full legal, beneficial and equitable title to and property in the Goods passes to the Customer:
(a) the Customer shall hold the Goods on a fiduciary basis as the Company’s bailee;
(b) the Customer shall store the Goods and shall insure them, without any charge to the Company, and not tamper with any identification upon the Goods and the Company shall be entitled to examine any such Goods in storage at any time during normal business hours upon giving the Customer reasonable notice of its intention to do so;
(c) the Company may at any time, on demand and without prior notice, require the Customer to deliver the Goods up to the Company and the Company may repossess and resell the Goods if any of the events specified in Condition 10.1 occurs or if any sum due to the Company from the Customer under the Contract or on any other account or under any other contract is not paid when due;
(d) for the purposes of this Condition 3.12 the Company, its employees, agents and sub-contractors will be entitled to free and unrestricted access to any premises owned, occupied or controlled by the Customer and/or any other location where any of the Goods are situated at any time without prior notice;
(e) the Company shall be entitled to maintain an action against the Customer for the price of the Goods notwithstanding that legal, equitable and beneficial title to and property in the Goods has not passed to the Customer; and
(f) the Company hereby authorises the Customer to use the Goods in the normal course of the Customer’s business. This right shall automatically cease on the occurrence of any event set out in Condition 10.1 and/or if any sum owed to the Company by the Customer is not paid when due.
3.13 The Company shall be entitled at its discretion to make delivery of the Goods by instalments and to invoice the Customer for each instalment individually. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated or to refuse to accept subsequent instalments.
4 Price and Payment
4.1 Unless otherwise agreed by the Company in writing the price for the Goods and/or Services shall be the price set out in the Quotation and/or the Service and Surcharges Price List as at the date of delivery.
4.2 The Company reserves the right, by giving notice to the Customer at any time before delivery, to amend the Quotation and/or the Services and Surcharges Price List to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including, without limitation, any increase in the costs of labour, fuel, materials, or other costs of manufacture or supply), any change in the quantities of the Goods and/or nature of Services requested by the Customer or any change in the delivery dates or location for the Goods and/or Services requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
4.3 Unless otherwise agreed in writing the prices for the Goods shall include costs or charges in relation to delivery but are not inclusive of the charges for Services and Surcharges. For the avoidance of doubt, this does not affect the Company’s right to charge for delivery related charges as set out herein.
4.4 The price for the Goods and/or Services shall be exclusive of value added tax and any other taxes and duties or levies all of which amounts the Customer will pay in addition when it is due to pay for the Goods and/or Services.
4.5 The Company reserves the right to levy the Part Load Charge, where the Customer orders less than a full load. Details of load capacities can be obtained from the Company upon request.
4.6 The Company reserves the right to make a charge for delivery of the Goods and/or the Services on the request of the Customer at a specific time or outside normal working hours.
4.7 Except where otherwise agreed by the Company or where the Customer is a credit account holder, payment of the price for the Goods (plus Services and Surcharges that have been incurred or are anticipated by the Company to incurred on or before delivery) is due before dispatch of the Goods and/or completion of Services. Any other charges are due as they are incurred (unless agreed otherwise with the Customer). Time for payment of the Goods and Services shall be of the essence.
4.8 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
4.9 The Company shall be entitled to apply any amount due to the Customer under this or any other agreement in or towards payment of any sum owing by the Customer to the Company in relation to any matter whatsoever.
4.10 If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and the Company shall be entitled to:
(a) cancel or suspend its performance of the Contract or any order including suspending deliveries of the Goods and/or provision of the Services; and/or
(b) require the Customer to pay for Goods prior to their despatch or collection from the Company’s place of business; and/or
(c) charge the Customer
(i) interest calculated on a daily basis on all overdue amounts (both before and after judgement) until actual payment at the statutory rate of interest for commercial debts prevailing from time to time until payment is made in full; and
(ii) the cost of obtaining judgement or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
Any credit facility given to the Customer by the Company may be altered or withdrawn by the Company at any time.
5 Warranty of Quality of Goods
5.1 The Company gives no warranty that Goods will be fit for any particular purpose unless this has been expressly agreed in writing between the parties to the Contract.
5.2 Furthermore, the Company gives no warranty that Goods will be free from lignite or pyrites.
5.3 Subject to Conditions 5.4 and 5.5, if the Customer establishes to the Company’s reasonable satisfaction that there is a defect in the Goods or there is some other failure in relation to the conformity of the Goods with the Contract, and such non-conformity is the fault of the Company then the Company shall at its option, at its sole discretion and within a reasonable time:
(a) subject to the reasonable co-operation of the Customer, remove the defective Goods free of charge to the Customer and replace such Goods with Goods which are in all respects in accordance with the Contract (including the cost of transporting the Goods to and from the Customer for that purpose); or
(b) issue a credit note to the Customer in respect of the whole or part of the Contract price of such Goods and/or Services plus the reasonable costs of removing the defective Goods;
and performance of any one of the above options shall constitute an entire discharge of the Company’s liability under this warranty and shall be the Customer’s sole and exclusive remedy.
5.4 The Company shall be under no liability under the warranty at Condition 5.3 above:
(a) in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Company’s approval; and/or
(b) if the total price for the Goods and/or the Services and Surcharges has not been paid by the due date for payment; and/or
(c) for any Goods manufactured or appropriated to the Contract in accordance with any specification, instruction or recommendation made to the Company by the Customer;
(d) for any additional Services performed in accordance with the Customer’s instructions;
Conditions of Sale (Aggregates) 1 March 2017
(e) in respect of any type of defect, damage or wear specifically excluded by the Company by notice in writing; or
(f) an Event of Force Majeure.
5.5 If the Customer believes that there is some defect or other non conformance of the Goods with the Contract then the Customer shall give:
(a) written notification of such alleged defect to the Company which notice shall include details of such suspected non-conformance or defect and the precise location of where such material was placed as soon as such defect or non conformance is suspected or discovered or ought to have been discovered but in any event within 40 days after delivery of the Goods or within 48 hours if the volume of Goods delivered do not correspond to the volume shown on the delivery docket; and
(b) the Company a reasonable opportunity to inspect the relevant Goods and, if so requested by the Company and, promptly return to the Company or such other person nominated by the Company a sample of the Goods within 14 days, carriage paid by the Customer, for inspection, examination and testing and/or otherwise permit the Company to have access to the Goods at the Customer’s premises or other location where they may be for such purposes.
5.6 The warranties set out in the Contract are the only warranties which shall be given by the Company and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6 Exclusion and Limitation of Liability
6.1 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with Condition 5.3 of the Contract shall be limited to the value of the Goods supplied under that Contract.
6.2 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, in respect of all claims not subject to condition 6.1 arising in connection with the performance or contemplated performance of the Contract shall be limited to the lower of the value of the Contract or £50,000 (fifty thousand pounds).
6.3 The Company shall not be liable to the Customer (whether in contract, tort negligence, breach of statutory duty or otherwise) however arising (whether relating to the Goods and/or Services or otherwise) for:
(a) any loss of profit or other economic loss (direct or indirect); and/or
(b) any loss or damage or liability which the Customer incurs due to delay in its works or project; and/or
(c) any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused).
6.4 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence, or for fraudulent misrepresentation.
7 Customers Indemnity
7.1 The Customer irrevocably and unconditionally agrees to indemnify the Company, its employees, sub-contractors and agents in full and on demand and keep them so indemnified against all claims, demands, actions, proceedings and all damages, losses, costs and expenses (including without limitation legal and other professional advisers’ fees and all consequential and economic loss (including without limitation loss of profit, future revenue, reputation or goodwill and anticipated savings)) whether direct or indirect made against or incurred or suffered by any of them directly or indirectly and whether wholly or in part resulting from the matters listed below whether or not such losses or the consequences of the matters listed below were foreseeable at the date of the Contract:
(a) the manufacture and sale of the Goods by the Company in accordance with the Customer’s specifications or other data or information furnished or instructions given by the Customer; and/or
(b) any breach by the Customer of its obligations under the Contract; and/or
(c) any breach by the Company of its obligations under the Contract or any other act or omission (including, without limitation, negligence) of the Company, its employees and agents in excess of the liability of the Company under the Contract.
8 Subcontracting, Assignment and Third Party Rights
8.1 The Customer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of the Company.
8.2 The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person or Group Company. The Customer irrevocably consents to novation of the Company’s rights and obligations pursuant to the Contract to any Group Company.
8.3 A Group Company may enforce any term of the Contract. Save for the Group Companies, no person who is not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) or otherwise) to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Company and the Customer which agreement must refer to this Condition 8.3.
8.4 Even if a person who is not a party to the Contract has a right to enforce any term of the Contract by virtue of Section 1 of the Act, the parties may, notwithstanding Section 2(1) of the Act, vary or cancel the Contract by agreement between them without requiring the consent of such third party.
9 Force Majeure
The Company reserves the right to suspend or cancel the Contract in whole or in part (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business and its obligations under the Contract due to any circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, strikes, lock outs or other industrial action (whether of the Company’s own employees or others), failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services (an “Event of Force Majeure”) provided that, if the Event of Force Majeure continues for a continuous period in excess of 90 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
10 Breach of Contract or Insolvency
10.1 The Company may immediately suspend performance of the Contract, cancel any outstanding delivery of the Goods, cease the provision of any Services, stop any Goods in transit or by notice in writing to the Customer terminate the Contract without liability to the Company if:
(a) the Customer commits a material breach of any of its obligations under the Contract which is incapable of remedy or fails to remedy any breach of its obligations under the Contract which is capable of remedy, or persists in any breach of any of its obligations under the Contract after having been requested in writing by the Company to remedy or desist from such breach within a period of 14 days; or
(b) the Customer suspends, or threatens to suspend, payment of its debts (whether principal or interest) or is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; calls a meeting, gives a notice, passes a resolution or files a petition, or an order is made, in connection with the winding up of that party (save for the sole purpose of a solvent voluntary reconstruction or amalgamation); has an application to appoint an administrator made or a notice of intention to appoint an administrator filed or an administrator is appointed in respect of it or all or any part of its assets; has a receiver or administrative receiver appointed over all or any part of its assets or a person becomes entitled to appoint a receiver or administrative receiver over such assets; takes any steps in connection with proposing a company voluntary arrangement or a company voluntary arrangement is passed in relation to it, or it commences negotiations with all or any of its creditors with a view to rescheduling any of its debts; or has any steps taken by a secured lender to obtain possession of the property on which it has security or otherwise to enforce its security; or has any distress, execution or sequestration or other such process levied or enforced on any of its assets; has any proceeding taken, with respect to it in any jurisdiction to which it is subject, or any event happens in such jurisdiction that has an effect equivalent or similar to any of the events in this Condition 10.1(b); or
(c) any sum payable under the Contract is not paid within seven days of its due date for payment in accordance with the Contract.
10.2 Notwithstanding any such termination or suspension in accordance with Condition 10.1 above the Customer shall pay the Company for all Goods and/or Services delivered up to and including the date of suspension or termination.
10.3 Termination of the Contract for any reason shall be without prejudice to the rights and remedies of either party which may have accrued up to termination.
11 General
11.1 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
11.2 The waiver by either party of any breach of the Contract shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
11.3 If at any time any one or more of the Conditions or part of them of the Contract is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Contract and the validity and/or enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired as a result of that omission.
11.4 The Company may record phone calls it makes to, or receives from, the Customer.
11.5 Any communication between the parties relating to the obligations of the Contract must be in writing and delivered by hand (when delivery shall be deemed to be the day of delivery) or sent by pre-paid first class post (when delivery shall be deemed to be 48 hours after posting) to, in the case of the Company, the address set out above, and in the case of the Customer, to its registered address, or such change of address as shall be notified to either party by the other. Pre-contractual communications, including any orders or Quotations, may be sent by email to such email addresses as the parties agree.
11.6 The Contract sets out the entire agreement and understanding between the Customer and the Company in connection with the sale of the Goods and/or provision of Services, and shall supersede and replace all documentation previously issued by the Company purporting to set out its terms and conditions of sale of the Goods. The parties acknowledge that this agreement has not been entered into wholly or partly in reliance on, nor has either party been given, any warranty, statement, promise or representation by the other or on its behalf other than as expressly set out in this agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with any warranties, statements, promises or representations will be for breach of contract and irrevocably and unconditionally waives any right it may have to any claim, rights or remedies including any right to rescind this agreement which it might otherwise have had in relation to them.
11.7 The Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of England and Wales unless the Goods are delivered in Scotland, in which case the Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or noncontractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of Scotland.
11.8 All disputes or claims arising out of or relating to the Contract shall be subject to the exclusive jurisdiction of the English and Welsh Courts to which the parties irrevocably submit unless the Goods are delivered in Scotland, in which case all disputes or claims arising out of or relating to the Contract shall be subject to the exclusive jurisdiction of the Scottish Courts to which the parties irrevocably submit.
March 2017
1 Definitions and Interpretation
In these Conditions the following words have the following meanings:
“Cancellation Charge” means the charge for cancellation set out in the Sundries Price List;
“Company” means CEMEX UK Materials Limited (Registered No: 4895833) whose registered office is at
CEMEX House, Evreux Way, Rugby, Warwickshire CV21 2DT;
“Contract” means any contract between the Company and the Customer for the sale of Goods, incorporating
these Conditions;
“Customer” means the person(s), firm or company who purchases the Goods from the Company;
“Goods” means any goods agreed in the Contract to be supplied to the Customer by the
Company (including any part or parts of them and pallets where applicable);
“Group Company” means any subsidiary or holding company of the Company and any subsidiary of such
holding company (in each case from time to time) (and the terms
“Subsidiary” and “Holding Company” shall have the meanings given to them by Section 1159 Companies
Act 2006);
“Part-Load Charge” means the charge for part-loads set out in the Sundries Price List;
“Quotation” means the documents issued from time to time by the Company which set out the prices of the
Goods;
“Return Haulage Charge” means the charge for returning material set out in the Sundries Price List;
“Sundries Costs” means the additional charges chargeable by the Company including without limitation the
Cancellation Charge, the Part-Load Charge, the Return Haulage Charge and the Waiting Time Charge;
“Sundries Price List” means the document setting out the prices of the Sundries Costs as published or
issued from time to time by the Company;
“Surcharge” means the additional charges made by the Company set out from time to time on the
Company’s Surcharge Price List;
“Surcharge Price List” means the document setting out the Surcharges as published or issued from time to
time by the Company; and
“Waiting Time Charge” means the charge for waiting at the place of delivery.
2 Basis of Contract
2.1 Subject to any variation under Condition 2.3 the Contract will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).
2.2 Each order for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods subject to these Conditions. It is the Customer’s obligation to ensure that the terms of its order and any applicable specification are complete and accurate.
2.3 Any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and executed by a director of the Company.
2.4 No order placed by the Customer shall be deemed to be accepted by the Company until a written quote is issued by the Company or (if earlier) the Company commences manufacture or mixing of the Goods, their appropriation to the Customer’s order or despatch of the Goods to the Customer. Any order shall be accepted entirely at the discretion of the Company.
2.5 Any quotation or estimate made by the Company is given subject to these Conditions. Without prejudice to the Company’s right not to accept an order, quotations will be valid for 60 days from date of issue.
2.6 All Goods are sold by reference to the Company’s specification for those Goods in force at the date of the Company’s acknowledgement of order.
2.7 Any cancellation or delay of an order by the Customer on or after 12 noon on the working day before the order is due to be fulfilled, or if the Company cannot deliver an order due to a failure of the Customer to take delivery of the Goods, is subject to payment by the Customer of the Cancellation Charge. Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the strengths or use of the Goods by the Company is followed or acted upon entirely at the Customer’s own risk.
2.8 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.9 The description of the Goods shall be set out in the Company’s acknowledgement of order or, in its absence, the Company’s quotation.
2.10 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions, details or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them and they will not form part of the Contract unless otherwise agreed in writing.
3 Delivery and Acceptance of Goods
3.1 Unless otherwise agreed in writing by the Company delivery of the Goods shall take place in normal business hours to the place of delivery specified in the Contract. The Customer must ensure an authorised person signs the delivery docket.
3.2 Any dates or time of day specified by the Company for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates or times are so specified, delivery will be within a reasonable time.
3.3 If for any reason the Customer does not accept delivery of any of the Goods within the sum of 30 minutes of when the Goods arrive and are available for delivery at the agreed delivery point, the Company reserves the right to charge the Customer the Waiting Time Charge.
3.4 If for any reason the Customer does not accept delivery of any of the Goods at all when they are ready for delivery or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations then the Goods will be deemed to have been delivered, risk passing to the Customer (including for loss or damage caused by the Company’s negligence) and the Company may in its absolute discretion:
a) store the Goods until actual delivery whereupon the Customer will be liable for all related costs and expenses (including without limitation storage and insurance); or
b) sell the Goods at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge the Customer for any shortfall below the Contract price.
3.5 The Customer will provide at its expense at the place of delivery adequate and appropriate equipment and manual labour for loading the Goods.
3.6 If the Company delivers to the Customer a quantity of Goods of up to 5% more or less than the quantity ordered by the Customer, the Customer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for the Goods delivered at the pro rata Contract rate.
3.7 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
3.8 The Customer shall ensure that an authorised person shall sign a delivery docket on delivery. By signing the delivery docket the Customer acknowledges receipt of delivery.
3.9 The Company shall be entitled at its discretion to make delivery of the Goods by instalments and to invoice the Customer for each instalment individually. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated or to refuse to accept subsequent instalments.
3.10 The Customer will be deemed to have accepted the Goods as being in accordance with the Contract unless:
a) within 7 days of the date of delivery of the Goods, the Customer notifies the Company in writing of any defect or other failure of the Goods to conform with the Contract (which would be apparent upon reasonable inspection and testing of the Goods within 7 days); or
b) the Customer notifies the Company in writing of any defect or other failure of the Goods to conform with the Contract within a reasonable time where the defect or failure would not be so apparent within 14 days of the date of delivery,
failing which the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
3.11 Goods, once delivered, may not be returned unless their return is agreed in advance in writing by the Company, and subject to the following conditions:
a) Goods are returned in a new and unused condition;
b) Any packaging remains unbroken and in reasonable condition;
c) Returns are made within 7 days of delivery of those Goods, all transport and other re-delivery costs of whatever nature are paid by the Customer, including but not limited to the Return Haulage Charge;
d) Payment by the Customer to the Company of a restocking charge of 20% of the net invoice value of the relevant Goods; and
e) Returned goods shall be accompanied by a written record of invoice number, date and a note of reasons for their return.
3.12 The Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Customer to terminate or rescind the Contract.
3.13 The Company shall only be liable for any non-delivery of Goods (even if caused by the Company’s negligence) if the Customer gives written notice to the Company within 7 days of the date when the Goods would, in the ordinary course of events, have been delivered.
3.14 If the Customer gives notice to the Company in accordance with Condition 3.12, the liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
4 Passing of Risk and Legal Title
4.1 The Goods shall be at the risk of the Customer from the time of delivery.
4.2 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in the Company (even though they have been delivered and risk has passed to the Customer) until:
a) payment in full, in cash or cleared funds, for all the Goods has been received by the Company; and
b) all other money payable by the Customer to the Company on any other account or under the Contract or any other contract has been received by the Company.
4.3 Until full legal, beneficial and equitable title to and property in the Goods passes to the Customer:
a) the Customer shall hold the Goods on a fiduciary basis as the Company’s bailee;
b) the Customer shall store the Goods at its premises in a proper manner in conditions which adequately protect and preserve the Goods and shall insure them, without any charge to the Company, and not tamper with any identification upon the Goods or their packaging and shall ensure that they are stored separately from any other goods (whether or not supplied by the Company) and are clearly identifiable as belonging to the Company and the Company shall be entitled to examine any such Goods in storage at any time during normal business hours upon giving the Customer reasonable notice of its intention to do so;
c) the Company may at any time, on demand and without prior notice, require the Customer to deliver the Goods up to the Company and the Company may repossess and resell the Goods if any of the events specified in Condition 12.1 occurs or if any sum due to the Company from the Customer under the Contract or on any other account or under any other contract is not paid when due;
d) for the purposes of this Condition 4 the Company, its employees, agents and sub-contractors will be entitled to free and unrestricted access to any premises owned, occupied or controlled by the Customer and/or any other location where any of the Goods are situated at any time without prior notice;
e) the Company shall be entitled to maintain an action against the Customer for the price of the Goods notwithstanding that legal, equitable and beneficial title to and property in the Goods has not passed to the Customer; and
f) the Company hereby authorises the Customer to use and/or sell the Goods in the normal course of the Customer’s business and to pass good title in the Goods to its Customers, if they are purchasers in good faith without notice of the Company's rights. This right shall automatically cease on the occurrence of any event set out in Condition 12.1 of the Conditions and/or if any sum owed to the Company by the Customer is not paid when due. If the Customer sells the Goods prior to paying the full price thereof the Customer shall hold the proceeds of sale on trust for the Company and shall immediately pay the proceeds of the sale into a separate bank account. At the Company’s request, the Customer shall assign to the Company all claims that the Customer may have against purchasers of the Goods from the Customer.
4.4 The Company’s rights and remedies set out in this Condition 4 are in addition to and shall not in any way prejudice, limit or restrict any of the Company’s other rights or remedies under the Contract or in law or equity.
5 Price and Payment
5.1 Unless otherwise agreed by the Company in writing the price for the Goods shall be the price set out in the Company’s quotation, delivery or invoice documentation.
5.2 The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including, without limitation, any increase in the costs of labour, materials, or other costs of manufacture or supply), any change in the quantities of the Goods requested by the Customer or any change in the delivery dates or location for the Goods requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
5.3 Unless otherwise agreed in writing, the prices for the Goods shall include costs or charges in relation to loading, unloading, carriage and freight but are not inclusive of the charges for Sundries Costs and Surcharges.For the avoidance of doubt, this does not affect the Company’s right to charge for delivery-related charges as set out herein.The price for the Goods shall be exclusive of value added tax and any other taxes, duties or levies and insurance all of which amounts the Customer will pay in addition when it is due to pay for the Goods.
5.4 The Company reserves the right to levy the Part-Load Charge where the Customer orders less than a full load.Details of load capacities can be obtained from the Company.
5.5 The Company reserves the right to make a charge for delivery of the Goods on the request of the Customer at a specific time or outside normal working hours.
5.6 Except where otherwise agreed by the Company or where the Customer is a credit account holder, payment of the price for the Goods is due (at the Company’s option) on placing of the order or upon delivery of the Goods.Time for payment shall be of the essence.
5.7 Except where otherwise agreed by the Company or where the Customer is a credit account holder, payment of the price for the Goods (plus Sundries Costs and Surcharges that have been incurred or are anticipated by the Company to be incurred on or before delivery) is due before dispatch of the Goods.Any other charges are due as they are incurred (unless agreed otherwise with the Customer). Time for payment of the Goods and Sundries Costs and Surcharges shall be of the essence.The Company shall be entitled to apply any amount due to the Customer under this or any other agreement in or towards payment of any sum owing by the Customer to the Company in relation to any matter whatsoever.
5.8 If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and the Company shall be entitled to:
5.8.1 cancel or suspend its performance of the Contract or any order including suspending deliveries of the Goods;
5.8.2 the Customer to pay for Goods prior to their despatch or collection from the Company’s place of business; and
5.8.3 charge the Customer
5.8.3.1 interest calculated on a daily basis on all overdue amounts (both before and after judgement) until actual payment at the rate of eight per cent (8%) per annum above the base lending rate of National Westminster Bank plcprevailing from time to time until payment is made in full;
5.8.3.2 and the cost of obtaining judgement or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
Any credit facility given to the Customer by the Company may be altered or withdrawn by the Company at any time.
6 Samples
The supply of goods or materials under these conditions shall not be deemed to be a sale by sample. Any samples of goods or materials submitted or shown to you are intended to indicate the substance, general character and, where relevant, general colour of goods and materials only and no liability is accepted if the bulk of the goods or materials do not correspond with the sample.
7 Warranty of Quality of Goods
7.1 The Company gives no warranty that Goods will achieve a particular strength or will be fit for any particular purpose unless this has been expressly agreed in writing between the parties to the Contract.
7.2 If the Customer establishes to the Company’s reasonable satisfaction that there is a material defect in the materials or workmanship of the Goods manufactured or there is some other material failure by the Company in relation to the conformity of the Goods with the Contract, then the Company shall at its option, at its sole discretion and within a reasonable time;
7.2.1 repair or make good such defect or failure in such Goods free of charge to the Customer (including all costs of transportation of any Goods or materials to and from the Customer for that purpose); or
7.2.2 issue a credit note to the Customer in respect of the whole or part of the Contract price of such Goods as appropriate having taken back such Goods or materials relating to such Goods
subject, in every case, to the remaining provisions of this Condition 7 provided that the liability of the Company under this Condition 7 shall in no event exceed the purchase price of such Goods and performance of any one of the above options shall constitute an entire discharge of the Company’s liability under this warranty.
7.3 The Company shall be under no liability under the warranty at Condition 7.1 above:
7.3.1 in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration of the Goods without the Company’s approval; or
7.3.2 if the total price for the Goods and/or the Sundries Costs and/or the Surcharges has not been paid by the due date for payment; or
7.3.3 for any Goods manufactured or appropriated to the Contract in accordance with any specification, instruction or recommendation made to the Company by the Customer; or
7.3.4 in respect of any type of defect, damage or wear (including efflorescence) specifically excluded by the Company by notice in writing; or
7.3.5 if the Customer makes any further use of the Goods after giving notice in accordance with Condition 7.4 below.
7.4 If the Customer believes that there is some defect or other non conformance of the Goods with the Contract then the Customer shall:
7.4.1 notify the Company in writing of the alleged defect within 7 days of the time when the Customer discovers or ought to have discovered the defect and in any event within 12 months of the delivery of the Goods to the Customer or such other periods as agreed by the Company in writing; and
7.4.2 give the Company a reasonable opportunity to inspect the relevant Goods and, if so requested by the Company and, promptly return to the Company or such other person nominated by the Company a sample of the Goods within 14 days, carriage paid by the Customer, for inspection, examination and testing and/or otherwise permit the Company to have access to the Goods at the Customer’s premises or other location where they may be for such purposes.
7.5 The warranties set out in this Contract are the only warranties which shall be given by the Company and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8 Exclusion and Limitation of Liability
8.1 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence, or for fraudulent misrepresentation.
8.2 The Company shall not be liable for:
a) any economic loss of whatever nature (whether or not such loss or damage was foreseen, direct, foreseeable, known or otherwise), including loss of anticipated profits, loss of actual profits (direct or indirect), loss of anticipated savings, loss of business; or
b) any indirect, special or consequential loss or damage howsoever caused; or
c) any losses arising as a result of any third party bringing a claim in respect of any nature whatsoever.
8.3 Notwithstanding and subject to Conditions 8.1 and 8.2 above the total aggregate liability of the Company arising out of, or in connection with the performance or contemplated performance of this Contract whether for negligence or breach of contract or any case whatsoever shall in no event exceed a sum equivalent to the price paid or payable by the Customer for the Goods which are the subject of the Contract.
8.4 The price of the Goods has been calculated on the basis that the Company will exclude or limit its liability as set out in these Conditions and the Customer by placing an order agrees and warrants that the Customer shall insure against or bear itself any loss for which the Company has excluded or limited its liability in these Conditions and the Company shall have no further liability to the Customer.
9 Customers Idemnity
9.1 The Customer irrevocably and unconditionally agrees to indemnify the Company, its employees, sub-contractors and agents (who shall have no duty to mitigate their loss) in full and on demand and keep them so indemnified against all claims, demands, actions, proceedings and all damages, losses, costs and expenses (including without limitation legal and other professional advisers’ fees and all consequential and economic loss (including without limitation loss of profit, future revenue, reputation or goodwill and anticipated savings)) whether direct or indirect made against or incurred or suffered by any of them directly or indirectly and whether wholly or in part resulting from the matters listed below whether or not such losses or the consequences of the matters listed below were foreseeable at the date of the Contract:
9.1.1 the manufacture and sale of the Goods by the Company in accordance with the Customer’s specifications or other data or information furnished or instructions given by the Customer;
9.1.2 the cancellation of any order by the Customer after its acceptance by the Company in accordance with Condition 2.4;
9.1.3 any breach by the Customer of its obligations under the Contract; and
9.1.4 any breach by the Company of its obligations under the Contract or any other act or omission (including, without limitation, negligence) of the Company, its employees and agents in excess of the liability of the Company under the Contract.
10 Subcontracting, Assignment and Third Party Rights
10.1 The Customer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of the Company.
10.2 The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person or Group Company.
10.3 A Group Company may enforce any term of the Contract. Save for the Group Companies, no person who is not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) or otherwise) to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Company and the Customer which agreement must refer to this Condition 10.3.
10.4 Even if a person who is not a party to the Contract has a right to enforce any term of the Contract by virtue of Section 1 of the Act, the parties may, notwithstanding Section 2(1) of the Act, vary or cancel the Contract by agreement between them without requiring the consent of such third party.
11 Force Majeure
The Company reserves the right to suspend or cancel the Contract in whole or in part (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business and its obligations under the Contract due to any circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, strikes, lock outs or other industrial action (whether of the Company’s own employees or others), failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services provided that, if the event of force majeure continues for a continuous period in excess of 3 months, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
12 Breach of Contract or Insolvency
12.1 The Company may immediately suspend performance of the Contract, cancel any outstanding delivery of the Goods, stop any Goods in transit or by notice in writing to the Customer terminate the Contract without liability to the Customer if:
12.1.1 the Customer commits a material breach of any of its obligations under the Contract which is incapable of remedy or fails to remedy a breach of its obligations under the Contract which is capable of remedy, or persists in any breach of any of its obligations under the Contract after having been requested in writing by the Company to remedy or desist from such breach within a period of 14 days; or
12.1.2 the Customer enters into bankruptcy, individual voluntary arrangement, liquidation, receivership, administration or into a corporate voluntary arrangement as defined by the Insolvency Act 1986; or
12.1.3 the Customer suspends, or threatens to suspend, payment of its debts (whether principal or interest) or is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; calls a meeting, gives a notice, passes a resolution or files a petition, or an order is made, in connection with the winding up of that party (save for the sole purpose of a solvent voluntary reconstruction or amalgamation); has an application to appoint an administrator made or a notice of intention to appoint an administrator filed or an administrator is appointed in respect of it or all or any part of its assets; has a receiver or administrative receiver appointed over all or any part of its assets or a person becomes entitled to appoint a receiver or administrative receiver over such assets; takes any steps in connection with proposing a company voluntary arrangement or a company voluntary arrangement is passed in relation to it, or it commences negotiations with all or any of its creditors with a view to rescheduling any of its debts; or has any steps taken by a secured lender to obtain possession of the property on which it has security or otherwise to enforce its security; or has any distress, execution or sequestration or other such process levied or enforced on any of its assets; has any proceeding taken, with respect to it in any jurisdiction to which it is subject, or any event happens in such jurisdiction that has an effect equivalent or similar to any of the events in this Condition 12.1.2; or
12.1.4 any sum payable under the Contract is not paid within seven days of its due date for payment.
12.2 Notwithstanding any such termination or suspension in accordance with Condition 12.1 the Customer shall pay the Company for all Goods delivered up to and including the date of suspension or termination.
12.3 Termination of the Contract for any reason shall be without prejudice to the rights and remedies of either party which may have accrued up to termination.
13 General
13.1 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
13.2 The waiver by either party of any breach of the Contract shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
13.3 If at any time any one or more of the Conditions or part of them of the Contract is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Contract and the validity and/or enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired as a result of that omission.
13.4 The Company may record phone calls it makes to, or receives from, the Customer.
13.5 Any communication between the parties relating to the obligations of the Contract must be in writing and delivered by hand (when delivery shall be deemed to be the day of delivery) or sent by pre-paid first class post (when delivery shall be deemed to be 48 hours after posting) to, in the case of the Company, the address set out above, and in the case of the Customer, to its registered address, or such change of address as shall be notified to either party by the other. Pre-contractual communications, including any orders or Quotations, may be sent by email to such email addresses as the parties agree.
13.6 The Contract sets out the entire agreement and understanding between the Customer and the Company in connection with the sale of the Goods and shall supersede and replace all documentation previously issued by the Company purporting to set out its terms and conditions of sale of the Goods. The parties acknowledge that this agreement has not been entered into wholly or partly in reliance on, nor has either party been given, any warranty, statement, promise or representation by the other or on its behalf other than as expressly set out in this agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with any warranties, statements, promises or representations will be for breach of contract and irrevocably and unconditionally waives any right it may have to any claim, rights or remedies including any right to rescind this agreement which it might otherwise have had in relation to them.
13.7 The Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of England and Wales unless the Goods are delivered in Scotland, in which case the Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of Scotland.
13.8 All disputes or claims arising out of or relating to the Contract shall be subject to the exclusive jurisdiction of the English and Welsh Courts to which the parties irrevocably submit unless the Goods are delivered in Scotland, in which case all disputes or claims arising out of or relating to the Contract shall be subject to the exclusive jurisdiction of the Scottish Courts to which the parties irrevocably submit.