1. INTERPRETATION – IN THESE CONDITIONS :
1.1 “Buyer” means the person, firm or company who accepts a quotation for the sale of the Goods, or whose order for the Goods is accepted by the Seller.
1.2 “Goods” means cast stone products that the Seller supplies to the Buyer in accordance with a quotation, Buyer’s orders, Seller’s brochure and/or Buyer’s approval for manufacture. Unless otherwise agreed in writing all cast stone products shall be manufactured in accordance with the BS 1217 :2008.
1.3 “Seller” means Ilam Stone Limited
2. BASIS OF SALE
2.1 All orders are accepted on the following conditions unless expressly varied or amended by the Seller in writing.
2.2 These conditions (as modified in accordance with condition 2.1 and together with the matters referred to in the Seller’s brochure, quotation and/or acceptance of order) embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications. This condition shall not exclude any liability in respect of any statement made fraudulently by either party prior to the date of the Contract.
2.3 A quotation for the sale of the Goods shall remain open for acceptance by the Buyer for a period of twenty eight days from the date of the quotation or for such alternative period as is stated on the quotation (if any).
2.4 Any typographical, clerical or other error or omission in any sales literature, price list, quotation, order acknowledgement, invoice or other information document issued by the Seller shall be subject to correction by the Seller without any liability on the part of the Seller.
2.5 It is the Buyer’s sole responsibility to satisfy itself as to the specification of Goods ordered along with their descriptions, suitability for the purpose intended and/or performance required by the Buyer and acceptability or approval by any third party.
2.6 Any advice or recommendation given by the Seller is acted upon or followed entirely at the Buyer’s own risk and the Seller shall not be liable for any such advice or recommendation.
2.7 These conditions do not create any right enforceable by any person other than the Buyer or the Seller.
2.8 The Buyer will have no right of set-off statutory or otherwise.
3. ORDERS
3.1 A contract is only concluded when the Seller dispatches an acceptance of order to the Buyer. Any quotation in whatever form given to the Buyer is given subject to these conditions and does not constitute an offer to sell or supply.
3.2 All orders are accepted by the Seller subject to the delivery periods stated in the quotation.
3.3 The Buyer is not entitled to rely upon any representation or statement made by the Seller’s staff whether orally or in writing to supply the Goods in any lesser period of time than stated in the quotation unless it is in writing and signed by a Director of the Seller.
3.4 Where the order is for standard products detailed in the Seller’s brochure, the order is accepted by the Seller subject to the availability of the Goods ordered. The Seller shall not be liable for any delays or non delivery of such Goods.
3.5 The only Goods or work covered by a quotation are those specifically referred to in that quotation. By placing an order the Buyer confirms that he has checked, approved and accepted the quotation including specifications, descriptions, model and all measurements wherever applicable.
4. VARIATIONS
4.1 The Buyer may vary his/their requirements as to detail and/or quantity of the Goods subject to agreement by the Seller and the following conditions :-
4.1.1 any variation, deviation or alteration to the detail and/or quantity of the Goods supplied from those allowed for in the accepted quotation will be subject to price variations from that quoted for;
4.1.2 where the variation concerns the replacement of one detail or shape of standard components detailed in the Seller’s brochure with another one, then the delivery period shall be calculated from the date of the issue of the variation stated in the quotation for standard products, subject to the revised Goods ordered being available when required in the quantities needed;
4.1.3 where the variation concerns the alteration of detail or shape of special cast stone products, the delivery periods shall be calculated from the date of the issue of the variation stated in the quotation;
4.1.4 if the variation concerns the alteration of detail or shape of standard components detailed in the Seller’s brochure then it shall be deemed to be a special cast stone product and the delivery periods shall be calculated from the date of the issue of the variation stated in the quotation;
4.1.5 where the alteration of detail or shape results in any designing/detailing and/or mould manufacturing costs failing to be recovered, then the loss of recovery incurred shall be added to the price of the revised Goods;
4.1.6 the full cost of the revised mould manufacturing cost required for the revised Goods shall be added to the price of the revised Goods;
4.1.7 except where the varied Goods are standard components detailed in the Seller’s brochure, the full agreed price shall be paid to the Seller for any Goods manufactured to the original detail or shape prior to the variation being issued, irrespective of whether the Goods are delivered to the Buyer or not;
4.1.8 where the variation solely relates to increased quantities then the Seller shall be paid at the agreed unit rates for the additional quantity of Goods concerned and any additional haulage cost if incurred;
4.1.9 where the variation solely relates to reduced quantities for special cast stone products, then the Seller reserves his position to increase the unit rates for the Goods concerned to recover the full designing/detailing and/or mould manufacturing costs on the reduced quantities to be delivered;
4.1.10 where the variation solely relates to reduced quantities of standard products detailed in the Seller’s brochures then the Seller shall be paid at the agreed unit rates for the Goods supplied;
4.1.11 where the variation solely relates to reduced quantities for special cast stone products that have been manufactured prior to the variation being issued, the Seller shall be due payment of the full agreed unit price of the surplus Goods irrespective of whether the Goods are delivered to the Buyer or not;
4.1.12 in addition to the above, the Seller is due payment of any administrative, production and/or stocking costs incurred from the variations issued by the Buyer.
4.2 The Seller reserves the right to alter any ornament or part of the whole composite design of an ornament at any time. The Seller reserves the right to withdraw any ornament or part thereof from sale.
5. CANCELLATION
5.1 Cancellations of an order or part of an order will not be accepted by the Seller once the Buyer has taken delivery of the Goods. Cancellations prior to delivery shall be subject to the remaining provisions of this clause.
5.2 Where a cancellation concerns the supply of a special stone product type that constitutes less than 10% of the total order value, then the Buyer shall pay the Seller for all reasonable costs incurred by the Seller on designing/detailing and manufacturing the particular special stone type up to the time of cancellation.
5.3 If the special cast stone product constitutes 10% or more of the total order value then the Buyer shall pay the Seller for all reasonable costs incurred by the Seller on designing/detailing and manufacturing the particular special stone type up to the time of the cancellation along with the cost of all loss of manufacturing time and profit incurred. If the cancellation is replaced by an alternative cast stone type which, having regard to the delivery periods stated in the quotation, can be manufactured in the same time span allocated for the cancelled stone, then the Buyer is only liable to pay the Seller for all reasonable costs incurred by the Seller on designing/detailing and manufacturing the particular special stone type cancelled up to the time of cancellation.
5.4 Where the cancellation concerns standard products detailed in the Seller’s brochure then the Seller undertakes to take the Goods into stock in consideration of a restocking charge to the value of 20% of the value of the Goods cancelled. This charge is payable by the Buyer irrespective of whether the Goods are manufactured or not at the time of cancellation.
5.5 Where the cancellation concerns more than one type of special cast stone products then the Seller is due payment of the following:
5.5.1 where the cancellation equates to less than 10% of the total order value then the Buyer shall pay the Seller for all reasonable costs incurred by the Seller concerning designing/detailing and manufacturing the special cast stone products up to the time of the cancellation;
5.5.2 if the cancellation constitutes 10% or more of the total order value then the Buyer shall pay the Seller for all reasonable costs incurred by the Seller concerning designing/detailing and manufacturing the special cast stone products up to the time of cancellation along with the cost of all loss of manufacturing time and profit incurred. This shall be paid by the Buyer irrespective of whether any alternative cast stone products are ordered or not by the Buyer from the Seller.
5.5.3 if, however, at the sole discretion of the Seller the Seller agrees in writing to accept return of any Goods then they must be returned undamaged to the Seller and the Buyer shall allow the Seller a 30% restocking charge to be deducted from the Seller’s credit note. If there is any damage to the Goods returned whatsoever, irrespective of how minor or how it was alleged to have caused, then the Seller will refuse to issue any credit note at all for the returned Goods as all returned Goods must be in perfect condition for re-sale.
5.6 If the Buyer enters into any voluntary arrangement with its creditors or (being an individual or a firm) becomes bankrupt or (being a company) becomes subject to an administration order, has a petition presented or an order made for its winding-up, has a receiver, administrator or administrative receiver appointed over all or any part of its undertaking or assets, goes into liquidation or ceases or threatens to cease to trade, then without prejudice to any other remedy available to the Seller, the Seller shall have the right to cancel the contract or suspend further deliveries under the contract without any liability to the Buyer. If the Goods have been delivered but not paid for, the price shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
6. PRICE
6.1 The price of Goods shall be that listed in the Seller’s published price list current at the date of acceptance of the order or the Seller’s quoted price accepted by the Buyer unless varied by condition 4 and 5 above.
6.2 Only where a fixed price period is stated in the Seller’s quotation or confirmation of order, does the Seller undertake to maintain the prices quoted for the stated fixed price period.
6.3 Where no such fixed price period is stated then the Seller reserves the right, by giving notice at any time before delivery to increase the price of the Goods to meet any increase in cost to the Seller due to any increase in the costs of labour, materials, manufacturing costs, foreign exchange fluctuation, government fiscal policies etc., or due to any delay caused by instructions and/or inadequate information provided by the Buyer.
6.4 The price of the Goods in any price list of the Seller or quotation provided by the Seller is on ex-works basis. Where the Seller agrees to deliver the Goods, the delivery price shall include for transport, packaging and insurance and to be to the nearest kerbside. Placement or erection is NOT included unless previously agreed in writing.
6.5 The delivery price is for delivery on normal working days during normal working hours. All deliveries made at the Buyer’s request on Public Holidays, Sundays or Saturday afternoons or at any other time outside working hours will incur an additional charge. When deliveries are made and no personnel are available to confirm receipt, delivery will be made at the entire risk of the Buyer.
6.6 The price of Goods is exclusive of any applicable value added tax, which shall be payable by the Buyer to the Seller in addition to the price.
7. PAYMENT
7.1 Unless otherwise agreed in writing by the Seller, payment for the Goods must be made to the Seller prior to despatch.
7.2 If credit terms are agreed, invoices are payable on 30-day nett monthly account terms. If any payment that is to be made by the Buyer to the Seller is overdue, interest will be chargeable on the sum due before and after judgment on a day to day basis at an annual rate of 8 per cent above the Bank of England base rate from time to time applicable, until the sum due is paid. Where the Buyer is in arrears with payments already due, the Seller reserves the right to delay or cancel further deliveries at the Seller’s sole discretion without any liability to the Buyer on the Seller’s part whatsoever and regardless of any agreement as to when such further deliveries are ordered.
7.3 If credit terms are agreed, the Seller will apply upon the Buyer a credit limit as stated in the Seller’s quotation or otherwise agreed in writing. Notwithstanding the above stated payment period the Seller reserves the right to delay or cancel further deliveries at the Seller’s sole discretion if such delivery would cause the credit limit to be exceeded without any liability to the Buyer on the Seller’s part whatsoever and regardless of any agreement as to when such further deliveries are ordered.
7.4 The Seller reserves the right to refuse to execute any order if the arrangements for payment or the Buyer’s credit are not satisfactory to the Seller and to suspend or discontinue delivery of any Goods or materials to any Buyer whose account is overdue for payment and/or has reached the above stated credit limit.
8. DELIVERY
8.1 Delivery dates quoted are approximate only, but shall be in accordance with the delivery programme stated on the quotation or as otherwise agreed in writing, subject to the Seller’s rights to withhold or delay delivery as set out in these Conditions.
8.2 Where the Goods are delivered by instalments, the Buyer will not be entitled to treat the late delivery or non-delivery of any instalment as a repudiation of the contract as a whole.
8.3 The Seller reserves the right to deliver the Goods in instalments without any adjustment in the price.
8.4 If the Buyer fails to give delivery instructions to take delivery of specially manufactured Goods within 14 days of it being notified that the Goods are ready for delivery, the Seller shall (without prejudice to any other rights to remedies available to it) be entitled to store the Goods at a convenient place at the Buyer’s expense.
8.5 If the Buyer fails to accept delivery of the specially manufactured Goods for a period of three months, the Seller may sell the Goods at the best obtainable price and after the deduction of all costs relating to storage, transport and unpacking, charge the Buyer for any shortfall below the agreed price in the contract.
8.6 If the Buyer fails to give delivery instructions or take delivery of Goods comprising standard products detailed in the Seller’s brochure within 14 days of it being notified that the Goods are ready for delivery, the Seller shall be entitled to sell the Goods to another Buyer without any liability whatsoever as to any costs or delays incurred by the Buyer caused by the Seller selling such Goods. If this occurs the extent of the Seller’s liability is only to provide the Goods when available in the quantities agreed to be sold to the Buyer without incurring any other liability from the Buyer whatsoever.
8.7 The delivery of the Goods shall be to the nearest kerbside and the Buyer agrees to provide at his expense additional labour for the assistance of the Seller’s driver or its carriers in off-loading the Goods.
8.8 The Seller does not undertake to deliver and load over roads or other ground which the drivers of the Seller consider to be unsuitable. If a vehicle of the Seller or its carriers used in the performing of the contract with the Buyer delivers a load to a place situated off a public road, the Buyer is to be solely responsible for any accident or damage resulting in consequence.
8.9 When a Seller’s or its carrier’s vehicle delivers the Goods to a Buyer’s premises or site, the Buyer is to ensure that the vehicle is unloaded promptly on arrival. If a vehicle is detained for an unreasonable period then the Seller reserves the right to make an extra charge for costs incurred in having the vehicle stood awaiting unloading.
9. RISK AND OWNERSHIP
9.1 The risk in the Goods shall pass to the Buyer at the time of delivery. The time of delivery shall be either the time when the Buyer collects the Goods from the Seller’s premises or notifies the Buyer that the Goods are available for collection, or the time when the Seller (or its carrier) delivers or tenders delivery of the Goods to the Seller.
9.2 The Goods shall remain the property of the Seller until the Seller has received in cash or cleared funds payment in full of the price of the Goods.
9.3 Until such time as the property in the Goods passes to the Buyer, the Buyer:
9.3.1 shall hold the Goods as bailee for the Seller;
9.3.2 shall not pledge or charge the Goods;
9.3.3 shall store, protect and insure the Goods separately from the Buyer’s other goods;
9.3.4 shall permit the Seller to enter upon any premises of the Buyer or any third party where the Goods are situated to repossess the Goods;
9.3.5 shall indemnify the Seller against all loss and damage to the Goods from whatsoever cause occurring.
9.4 The Seller reserves the right to destroy the moulds for specially manufactured Goods after 60 days from the last delivery date of specially manufactured cast stone products. If subsequently the Buyer requires further deliveries of the specially manufactured Cast Stone products then the Seller reserves the right to charge the Buyer for having to produce a special mould for the manufacture of the Goods on a quantum merit basis in addition to that charged for manufacturing and delivering the additional goods.
10 LIABILITY
10.1 The Seller warrants that the Goods shall at the time of delivery be free from defects in workmanship and materials and shall comply with the specifications set out in its quotation.
10.2 The Buyer and the Seller both acknowledge that cast stone is a fragile material that can be easily damaged. Accordingly the Seller’s sole liability in respect of any breach of the above warranty or for any loss of or damage to the Goods shall be as follows:
10.2.1 The Buyer is responsible for checking the Goods on delivery. The Buyer must notify the Seller of any defects in the Goods in writing within seven days of the date of delivery;
10.2.2 The Seller shall repair or replace any defective Goods notified to it under clause 10.2.1 at its own expense and within the replacement period specified on its quotation as follows:
10.2.2.1 If the defect was caused by the Seller prior to delivery;
10.2.2.2 If the Goods were damaged by the Seller during delivery (if the Seller delivered the Goods.)
10.2.2.3 If the Goods were damaged by the Seller during loading onto the Buyer’s vehicle (if the Buyer collects the Goods) provided that the Buyer or his nominated carrier notified the Seller of such damage prior to leaving the Seller’s premises. Save as set out in this clause the Seller does not accept any liability whatsoever for any damaged or defective Goods.
10.3 If the Goods are damaged whilst in the Buyer’s possession, control or ownership the extent of the Seller’s liability is to repair or replace the Goods at reasonable cost to be paid by the Buyer within the replacement period stated in the quotation or as otherwise agreed by the Seller in writing. If the Goods have to be replaced then the replacement cost charged by the Seller will be the agreed unit costs of the Goods plus the cost of haulage and Value Added Tax.
10.4 Except as provided in condition 10.1 and in Section 12 of the Sale of Goods Act 1979:-
10.4.1 all conditions and warranties, express or implied, as to the quality or fitness for any purpose of the Goods are expressly excluded to the fullest extent permitted by law; and
10.4.2 the Seller shall not under any circumstances be liable in contract, tort, statute or otherwise for any direct, indirect or consequential loss or for increased costs or expenses, or loss of profit, business, contracts, revenues or savings howsoever arising which may be suffered by the Buyer (except in respect of death or personal injury caused by the Seller’s negligence).
10.5 If, notwithstanding the above provisions of this condition, the Seller is found liable for any loss or damage suffered by the Buyer, that liability shall in no event exceed the price of the Goods except in respect of death or personal injury caused by the Seller’s negligence on which no limit is placed.
11 FORCE MAJEURE
11.1 The Seller does not accept responsibility for failure to supply or for delay in supplying any materials or Goods which may be due directly or indirectly to any act of God, war, invasion, riot, civil commotion, military or usurped power, any legislation, Government Order, Regulation or Direction, any strike or lockout, any fire, accident, breakdown in machinery, any shortages of labour, raw materials, equipment or spare parts effecting the production or transit of such materials, any cause of circumstances beyond the Seller’s control, or any abnormal conditions arising from any of the foregoing causes.
12 SAFETY
12.1 The Buyer shall have the sole responsibility for the erection and installation of the Goods. The Buyer undertakes that he will ensure compliance with any instructions where provided by the Seller for the purpose of ensuring a safe and proper installation of the Goods.
13 INTELLECTUAL PROPERTY
13.1 The Buyer acknowledges that the Seller retains ownership of any intellectual property rights in the Goods.
14. LAW
14.1 The Contract shall in all respects be construed and operate as an English Contract and in conformity with English Law.