Terms and conditions of sale Como Stone Company Limited Trading as Como Stone Co Terms and Conditions of Sale 1INTERPRETATION 1.1The definitions and rules of interpretation in this condition apply in these conditions.
|Contract||any sale contract between Como Stone Co and you for the sale and purchase of Goods, incorporating these conditions and any express term specified in the Contract.|
|Goods||the goods agreed in the Contract to be supplied to you by us (including any part or parts of them).|
|International Supply Contract||a contract as is described in Section 26(3) of the Unfair Contract Terms Act 1977.|
|us, we or our||The Como Stone Company Limited.|
|you||the person, firm or company who purchases the Goods from us.|
1.2A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it. 1.3Words in the singular include the plural and in the plural include the singular. 1.4Condition headings do not affect the interpretation of these conditions. 2APPLICATION OF TERMS 2.1Subject to any variation under condition 2.2 the Contract shall be on these conditions to the exclusion of all other terms and conditions. No terms or conditions endorsed on, delivered with or contained in your purchase order, request for a quotation, tender documentation, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract. 2.2These conditions apply to all our sales and any variation to these conditions and any representations or recommendations about the Goods shall have no effect unless agreed in writing and signed by our duly authorised representative. You shall ensure that the terms of your order are complete and accurate. If you think there has been a mistake, please inform us immediately otherwise you acknowledge that you have not relied on any recommendation, statement, promise or representation made or given by or on our behalf which is not set out in the Contract. 2.3Each order or acceptance of a quotation for Goods by you from us is an offer by you to buy Goods subject to these conditions. 2.4We shall be free to accept or decline your order at our absolute discretion. Your order shall be accepted by us when we issue a Contract to you by way of an acknowledgement of your order or (if earlier) we deliver the Goods to you. 2.5Any quotation is given on the basis that no Contract shall come into existence except in accordance with condition 2.4. A quotation is valid for a period of 60 days only from its date, provided that we have not previously withdrawn it. 3DESCRIPTION AND SPECIFICATION 3.1The quantity, description and specification of the Goods shall be as set out in the Contract. 3.2All samples, drawings, descriptions, specifications and advertising issued by us and any descriptions or illustrations contained in our catalogues or brochures are issued or published for the sole purpose of giving you an approximate idea of the Goods described in them. They do not form part of the Contract. The Contract is not a sale by sample. 3.3If Goods are made to a specification, instruction or design supplied by you or any third party on your behalf then: 3.3.1the suitability and accuracy of that specification, instruction or design will be your responsibility; 3.3.2you will indemnify us against any infringement or alleged infringement of any third party’s intellectual property rights including but not limited to patent, design right, registered design, trademark, trade name or copyright and any loss, damage or expense (including, without prejudice to the generality of the foregoing, legal costs on a full indemnity basis) which it may incur by reason of any such infringement in any country; and 3.3.3you will indemnify us against any loss, damage or expense in respect of any liability arising in any country by reason of the Goods being made to such specification, instruction or design. 4DELIVERY 4.1Delivery of the Goods shall be set out by us in the Contract and (except in respect of International Supply Contracts): 4.1.1if you choose to collect the Goods, delivery of the Goods shall take place at our place of business and loading of the Goods shall be at your risk and expense; or 4.1.2if you select for us to deliver to you, we shall deliver to your delivery address and off loading of the Goods shall be at your risk and expense; and 4.1.3you shall collect or take delivery of the Goods within 7 days of our notice to you that the Goods are ready for delivery failing which storage charges may apply. 4.2If the Contract is an International Supply Contract it shall be deemed to incorporate the latest edition of Incoterms current at the date of the Contract save that in the event of any inconsistency between Incoterms and any express term detailed in the Contract the latter shall prevail. Unless stipulated to any other effect in the Contract delivery shall be FOB to a transportation point and by a means of transport nominated by us and all risk passing to you upon delivery by us to the nominated transportation point. All freight and insurance costs shall be for the sole account of you. 4.3Any dates specified by us for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. 4.4If you fail to take delivery of any of the Goods when they are ready for delivery, or we are unable to deliver the Goods on time because you have not provided appropriate instructions, documents, licences or authorisations: 4.4.1risk in the Goods shall pass to you (including for loss or damage caused by our negligence); 4.4.2the Goods shall be deemed to have been delivered and we shall have no liability to you for late delivery; 4.4.3we may store the Goods until delivery and may charge you all related reasonable costs and expenses (including, without limitation, insurance); and 4.4.4we shall have the right, if after a period of not less than 30 days from the date of our notice that the Goods are ready, to dispose of the Goods to a third party and recover from you, in addition to the costs referred to in this condition 4.4, the amount if any by which the sale proceeds are less than the sale price under the Contract together with any reasonable expenses incurred by us in negotiating and completing the sale of the Goods. 4.5If our supply of Goods under the Contract is prevented or delayed by any act or omission of you, your agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay. If you fail to inform us of impassable private roadways to the delivery site then either the Goods will be delivered to the nearest accessible site point or returned at a later date at your expense. 5NON-DELIVERY 5.1The quantity of any consignment of Goods as recorded by us on despatch from our place of business shall be conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence proving the contrary. 5.2We shall not be liable for any non-delivery of Goods (even if caused by our negligence) unless you give written notice to us of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received. 5.3Our liability 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. 6RISK/TITLE 6.1Save in the case of International Supply Contracts and subject to condition 4.6, the Goods are at your risk from the time of delivery or if you collect, from when you collect the Goods from us. 6.2Ownership of the Goods shall not pass to you until we have received in full (in cash or cleared funds) all sums due to it in respect of the Goods. 6.3Until ownership of the Goods has passed to you, you shall: 6.3.1hold the Goods on a fiduciary basis as our bailee; 6.3.2store the Goods (at no cost to us) separately from your goods or any other third party goods in such a way that they remain readily identifiable as our property; 6.3.3not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and 6.3.4maintain the Goods in satisfactory condition and keep them properly stored, protected and insured on our behalf for their full price against all risks to our reasonable satisfaction. On request you shall produce the policy of insurance to us. 6.4Your right to possession of the Goods shall terminate immediately if: 6.4.1you have a bankruptcy order made against you or you make an arrangement or composition with your creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convene a meeting of creditors (whether formal or informal), or enter into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or have a receiver and/or manager, administrator or administrative receiver appointed of your undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by you or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of you or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency; or 6.4.2you suffer or allow any execution, whether legal or equitable, to be levied on your property or obtained against you, or fail to observe or perform any of your obligations under the Contract or any other contract between us and you, or are unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or you cease to trade; or 6.4.3you encumber or in any way charge any of the Goods. 6.5Until ownership of the Goods has passed to you (and provided the Goods (or any amount of them) are still in existence and identifiable) and have not been installed or affixed to your premises we shall be entitled at any time to require you to deliver up the Goods (or any amount of them) to us and, if you fail to do so forthwith, to enter upon your premises or any third party where the Goods are stored and repossess the Goods. 6.6We shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from us. 6.7You shall indemnify us in respect of all costs and expenses incurred by us enforcing any right granted to us pursuant to this condition 6 and any costs and expenses arising out of any judgement in our favour in respect of any invoice which remains unpaid by you. 6.8On termination of the Contract, howsoever caused, our (but not your) rights contained in this condition 6 shall remain in effect. 7PRICE 7.1Subject to condition 7.2 and unless otherwise agreed by us in writing, the price for the Goods and where we agree to deliver, the delivery charges shall be set out in the Contract. 7.2We shall be entitled to adjust the price of the Goods whether before or after the formation of the Contract to which these conditions relate in the event of any variation in the cost to us of supplying the Goods, or any part of them, caused by any reason whatsoever beyond our control (such as raw material price increases). If the price at the date when the Goods are ready for delivery shall be higher than that at the Contract date, you may within 14 days after receipt from us of notice of the adjusted price and PROVIDED THE GOODS ARE NOT IN TRANSIT terminate the Contract to which these conditions relate with respect to such Goods and/or all Goods thereafter to be delivered under the Contract without further obligation or liability on the part of either party. 7.3The price for the Goods shall be exclusive of any value added tax (where applicable) and all other taxes, duties, levies and government charges payable in respect of the Goods at the rate or rates prevailing when the taxable or chargeable event occurs even if a relevant law or regulation imposes such tax, duty, levy or charge solely on us. Where an F.O.B. price is quoted this will include all relevant costs to place the Goods on or aboard the nominated means of carriage and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts you shall pay in addition when it is due to pay for the Goods. 8PAYMENT 8.1Subject to condition 8.4, payment of the price for the Goods shall be made by you in accordance with the payment terms and currency specified in the Contract or if not specified, payment shall be due in pounds sterling before delivery or collection of the Goods. 8.2Time for payment shall be of the essence. 8.3No payment shall be deemed to have been received until we have received cleared funds. 8.4All payments payable to us under the Contract shall become due immediately on its termination despite any other provision. 8.5You shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless you have a valid court order requiring an amount equal to such deduction to be paid by us to you. We may, without prejudice to any other rights we may have, set off any liability of you to us against any liability of us to you. 8.6If you fail to pay us any sum due pursuant to the Contract, you shall be liable to pay interest to us on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. 8.7Without limiting any other remedies or rights that we may have, if you fail to pay us on time, we may cancel or suspend the Contract until you have paid the outstanding amounts. 9QUALITY 9.1We warrant that (subject to the other provisions of these conditions) on delivery and for a period of 12 months from the date or delivery, the Goods shall: 9.1.1be of satisfactory quality; and 9.1.2conform in all material respects with the manufacturer’s specification. 9.2We shall not be liable for a breach of the warranties in condition 9.1 unless: 9.2.1you give written notice of the defect to us, and, if the defect is apparent upon inspection within 7 days of delivery and in the case of a latent defect, within 6 months of delivery; and 9.2.2we are given a reasonable opportunity after receiving the notice of examining such Goods and you (if asked to do so by us) return them to our place of business at your cost for the examination to take place there. 9.3We shall not be liable for a breach of the warranties in condition 9.1 if: 9.3.1you fail to give notice of rejection in accordance with condition 9.2.1, or 9.3.2the defect arises due to natural geological variations, natural formation characteristics, colour and/or marking variations; or 9.3.3the defect arises from fair wear and tear, wilful damage, accident, negligence by you or a third party, if you use the Goods in a way that we do not recommend or because you failed to follow our oral or written instructions as to the storage, installation, maintenance or use of the Goods or (if there are none) good trade practice; or 9.3.4you alter or repair such Goods without our written consent. 9.4Subject to condition 9.2 and condition 9.3, if any of the Goods do not conform with the warranties in condition 9.1 we shall at our option replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate. 9.5If we comply with condition 9.4 we shall have no further liability for a breach of the warranties in condition 9.1 in respect of such Goods. 10LIMITATION OF LIABILITY PLEASE NOTE: you are strongly advised to read this condition carefully 10.1Subject to condition 4, condition 5 and condition 9, the following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of: 10.1.1any breach of these conditions; 10.1.2any use made or resale by you of any of the Goods, or of any product incorporating any of the Goods; and 10.1.3any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract. 10.2All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract. 10.3Nothing in these conditions excludes or limits our liability: 10.3.1for death or personal injury caused by our negligence; or 10.3.2for breach of the obligations implied by section 12 of the Sale of Goods act 1979 or section 2 of the Supply of Goods and Services Act 1982; or 10.3.3for losses for which it is prohibited by section 7, Consumer Protection Act 1987 to limit liability; or 10.3.4for any matter which it would be illegal for us to exclude or attempt to exclude its liability; or 10.3.5for fraud or fraudulent misrepresentation. 10.4Subject to condition 10.2 and condition 10.3: 10.4.1our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and 10.4.2neither of us shall be responsible for any losses that the other party suffers, except losses which are foreseeable and neither party shall be liable to the other for loss of profit or income, loss of business, loss of anticipated savings, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract. 11CONFIDENTIAL INFORMATION You shall keep in strict confidence all technical or commercial know-how, specifications, designs, drawings, inventions, processes or initiatives which are of a confidential nature and have been disclosed to you by us, our employees, agents, consultants or subcontractors and any other confidential information concerning our business or our products which you may obtain. 12TERMINATION 12.1Without prejudice to any other rights or remedies we may have, either you or us may terminate the Contract without liability to each other immediately on giving notice to the other if: 12.1.1the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or 12.1.2the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or 12.1.3the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or 12.1.4the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being a natural person) is deemed either unable to pay its debts or as having not reasonable prospect of doing so, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or 12.1.5the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies of the solvent reconstruction of that other party; or 12.1.6a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; 12.1.7an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or 12.1.8a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or 12.1.9a person becomes entitled to appoint a receiver over the assets of the other party a receiver is appointed over the assets of the other party; or 12.1.10a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any party of its assets and such attachment or process is not discharged within 14 days; or 12.1.11any event occurs or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that is equivalent or similar to the events listed in conditions 12.1.4 to 12.1.10 (inclusive); or 12.1.12the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or 12.1.13there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001). 12.2On termination of the Contract for any reason: 12.2.1you shall immediately pay to us all of our outstanding unpaid invoices and interest; and 12.2.2the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected. 12.2.3 Cancellation of Special Pieces Order The Purchaser may, prior to commencement of the manufacture of Made to Order Goods or delivery of Stocked Goods, either the subject of the Sales Order, by notice in writing to the Supplier, cancel part of the entire Sales Order. In the event of cancellation the Purchaser shall be required to pay to the Supplier its actual out-of-pocket expenses and any reasonable expenses incurred by the Supplier prior to the Date of Cancellation. However, the Price of Made to Order Goods manufactured prior to the Date of Cancellation must be paid by the Purchaser. 13EVENTS OUTSIDE OUR CONTROL 13.1We reserve the right to defer the date of delivery or to cancel or suspend the Contract or reduce the volume of the Goods ordered by you (without liability to you) if we are prevented from or delayed in the carrying on of our business due to: 13.1.1circumstances beyond our reasonable control including, without limitation, acts of God, governmental actions or restriction, prohibition, enactment or regulation of any kind, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), trade disputes or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable good, materials and/or services; or 13.1.2non-delivery by our supplier or damage to or destruction of the whole or any part of the Goods; PROVIDED THAT, if the event in question continues for a continuous period in excess of 180 days, you shall be entitled to give notice in writing to us to terminate the Contract. 13.2 We will take reasonable steps to bring the particular event to a close or find a solution by which our obligations under the Contract can be performed despite the event outside our control. 14GENERAL 14.1Each right or remedy of ours under the Contract is without prejudice to any other right or remedy whether under the Contract or not. 14.2If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. 14.3Failure or delay by us in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. 14.4Any waiver by us of any breach of, or any default under, any provision of the Contract by you shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract. 14.5We may assign the Contract or any part of it to any person, firm or company. You shall not be entitled to assign the Contract or any part of it without our prior written consent. 14.6The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it. 14.7The Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts. 15COMMUNICATIONS 15.1All communications between us about the Contract shall be in writing, in English and delivered by hand or sent by pre-paid first class post, airmail requiring signature on delivery or sent by fax: 15.1.1(in case of communications to us) to our registered office or such changed address as shall be notified to you by us; or 15.1.2(in the case of the communications to you) to the registered office of the addressee (if it is a company) or (in any other case) to any address of you set out in any document which forms part of the Contract or such other address as shall be notified to us by you. 15.2Communications shall be deemed to have been received: 15.2.1if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or 15.2.2if delivered by hand, on the day of delivery; or 15.2.3if sent by airmail, 9.00am on the fifth working day of posting; or 15.2.4if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day. © Como Stone Co Ltd 2013 Inserted from <http://www.comostone.co/terms-and-conditions-sale>