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In these Conditions:
Stone Direct (International) Limited, Charlotte House, Stanier Way, Wyvern Business Park, Derby, DE21 6BF, company number 10249572, is called “The Supplier” and the other party with whom the supplier contracts is called “the Customer”.
“Conditions” means these conditions of sale of the supplier. “Contract Documentation” means all documents which form part of or constitute or evidence the contract including these conditions and any quotations, offer, acknowledgements of order, acceptances and specifications of the supplier or the customer and any document referred to in them. “Goods” means the goods, articles and materials which are to be supplied by the supplier under any contract between the supplier and the customer (“the Contract”). “Order” means any order from the customer to purchase any goods from the supplier which incorporates these conditions and in the case of the contract any order from the customer which forms part of the contract documentation. “Price” means the price for the goods as notified to the customer by the supplier.
“Services” shall include any labour, design or other services whatsoever to be provided by the supplier under the contract; “Include” and “Including” shall be construed without limitation.
1.2 “References” In these conditions, unless otherwise stated: a reference to a “person” includes a reference to a supplier or other body corporate, association, partnership or individual; a reference to a “third party” is to a person who is not a party to this contract: the singular shall include the plural and vice versa; a reference to a gender is to every gender; a reference to a “clause” is a reference to a clause of this contract; a reference to a statute, statutory instrument, regulation, order or licence is a reference to that statute, statutory instrument, regulation, order or licence as substituted, varied or acted from time to time; a reference to any document or agreement is to that document or agreement as substituted, varied or amended from time to time; a reference to “materials” includes a reference to parts, components, materials, patterns, specifications, samples and documents; a reference to “use” includes to use, install, adapt, maintain, repair, modify, merge, reproduce and make.
1.3 “Headings” The headings in these conditions are for convenience only and shall not affect the construction or interpretation of these conditions.
2. TERMS OF THE CONTRACT
2. Incorporation of these Conditions: These conditions shall be incorporated into all quotations, offers, acceptances, agreements and contracts for sale of any goods, services or works by the supplier to the customer. All terms and conditions of the customer shall be excluded including any terms and conditions in any orders, offers or acceptances of the customer.
2.2 Conflict: These conditions shall apply and shall prevail over any other term of the contract unless otherwise agreed by the supplier. The supplier shall only be considered to have agreed otherwise where the supplier shall have expressly agreed in a written document issued for and on behalf of the supplier by an authorised person.
2.3 Price List: Any price list issued by the supplier is an invitation to the customer to make an offer only and no contract shall come into effect until the supplier accepts an order from the customer.
3. SALE AND PURCHASE
The supplier agrees to sell and deliver and the customer agrees to purchase and accept delivery of the goods and services on and subject to these conditions. Where the goods and services are to be delivered in instalments, then each instalment shall constitute a separate contract.
Unless otherwise provided in the contract the price of any goods which are actually held in stock at the time any order is received, and are set aside to meet the order, shall be the supplier’s list price at the time any order is received:
4.1 Exclusions: The price of goods and services does not include the cost of cases or other packing materials, the cost of delivery and insurance of the goods in transit which shall remain the property of the supplier.
4.2 VAT: The price of the goods and services is exclusive of Value Added Tax.
4.3 Estimated Price: Where the price has been quoted in the supplier’s quotation or estimate based on stated production runs and specific delivery periods, the supplier reserves the right to vary the price for the goods and services should the customer order different quantities from those stated and/or require delivery over a different period.
4.4 Variation of Price: The supplier reserves the right to vary the price of goods without notice by any amount attributable to a change in or insufficiency of the customer’s instructions, change of law I to any variation in the cost of materials, labour, transport, duties, taxes, exchange rates or any costs of whatsoever nature between the date of the contract and the date of delivery or completion of payment.
5.1 Variations: All goods will be subject to variations in colour and markings inherent with the type of goods supplied, and no goods are warranted to be exact replicas of any samples supplied.
5.2 Description: All descriptions of any goods are for guidance purposes only, and the actual goods supplied may differ slightly from any descriptions given.
5.3 Calibration: Although all goods (except for any samples) are calibrated, there may be variations in thickness and other dimensions.
6. DELIVERY AND RISK
6.1 Delivery: Save as provided in Condition 6.2, and unless otherwise agreed by the supplier all goods shall be collected by the customer from the supplier’s premises at Midbrook House, Intakes Lane, Turnditch, Belper, Derbyshire, DE56 2LU, as may be varied by the supplier from time to time;
6.2 Instalment: The supplier shall be entitled to make delivery of the goods and services by instalments and to invoice the customer for each instalment dispatched.
6.3 Delivery Time: Subject to stock levels and availability of the goods, the supplier will use its reasonable endeavours to make available for collection the goods by the delivery date stated in the contract documentation, or if no date is stated, within a reasonable time. Delivery dates are estimates only and time for delivery of the goods and services is not of the essence therefore failure by the supplier to meet delivery dates shall not entitle the customer to repudiate the contract. Our current two delivery options are 1. ‘Next Day Delivery’ this is for items ordered before 12pm the item will be dispatched and delivered on the next day providing the full payment had been received. Our seconded delivery option is ‘Economy (4 days)’ this is for items ordered and to be delivered in 4 days.
6.4 Periodic Delivery: Where goods and services are to be supplied or delivered by the supplier in accordance with periodic delivery schedules or similar notification of the delivery requirements of the customer, the customer shall not be entitled to cancel or vary any such delivery schedule or requirement which is expressed by the customer to be a firm requirement without the prior written consent of the supplier and the supplier shall be entitled to reimbursement of any additional costs and expenses incurred or suffered as a result of such cancellation or variation.
6.5 Postponement of Delivery: Where postponement of delivery or completion is agreed by the supplier, the customer shall, if required by the supplier, pay all costs and expenses (including a reasonable charge for storage and insurance of the goods and interest on the contract price) incurred as a result of such postponement but the goods shall be held at
the customer’s risk as from the time of postponement.
6.6 Right to withhold Delivery: The supplier shall be entitled to withhold delivery of any goods where any amounts payable by the customer to the supplier are overdue on any account whatsoever, or where the supplier has reasonable grounds for believing the customer will not be able to pay the price for the goods and services or any other amount due to the supplier, unless and until such amounts are paid.
7. TITLE TO GOODS
7.1 When Title Passes: All goods shall remain the property of the supplier and legal and beneficial title to the goods shall remain with the supplier until the customer has paid the price in full to the supplier.
7.2 Insurance of Goods: The customer shall at its own risk and expense insure all goods supplied by the supplier from the date of delivery for their full replacement value against all the usual risks and keep all goods safe and in good condition stored separately and clearly identifiable as the supplier’s property with all identifying marks intact and legible.
7.3 Storage of Goods: The customer shall store or otherwise denote consignments of the goods in respect of which legal title remains with the supplier in such a way that the same can be recognised as the property of the supplier and where the same type of goods have previously been supplied by the supplier and in which legal title has passed to the
customer the customer shall ensure that such goods are lent, sold, hired or otherwise utilized in priority to the goods supplied, sold or hired under this contract.
7.4 Power of Sale: The customer may use or sell the goods or any of them in the ordinary course of its business on the basis that any proceeds of sale shall be held in trust by the customer for the supplier absolutely until the customer has paid to the supplier the price in full. The customer’s rights under this condition shall be conditional upon the customer including a retention of title condition substantially in the form of that contained at Condition 7.1 above in all contracts entered into by the customer for the sale of the goods or any of them.
7.5 Recovery of Goods: The customer’s rights under Condition 7.4 shall terminate immediately on notice from the supplier or automatically on the presentation of a petition for the winding-up of the customer or for the making of an administration order in relation to the customer or if the customer has a receiver or administrative receiver appointed over any of its assets or undertaking or it goes into voluntary liquidation (other than for the purposes of a bona fide reconstruction or amalgamation of a solvent supplier) or if the customer ceases to carry on business or applies or proposes or makes any compromise, arrangement or voluntary arrangement with its creditors or is unable to pay its debts (within the meaning of Section 123 or 268 (as appropriate) of the Insolvency Act 1986) or upon the happening of any equivalent event under the laws of any relevant jurisdiction.
7.6 Inspection of Goods: The supplier may at any time enter the customer’s premises for the purpose of inspecting the goods and identifying them as the supplier’s property and the customer irrevocably authorizes the supplier to enter upon its premises for that purpose.
7.7 Termination of Power of Sale: Upon the termination of the customer’s powers of use and sale under Condition 6.4 above the supplier shall be entitled at its option:-
(a) to cancel all or any part of any orders for goods and services placed with it by the customer and not yet delivered (whether or not accepted or whether or not under the contract or any other contract);
(b) to deal direct with any customers of the customer and/or to resell the goods and any proceeds of any sale to such customers shall belong to the supplier absolutely.
8.1 Standards: The supplier will supply the goods and any ancillary services in accordance with the specifications set out in the order with that degree of skill and care and attention reasonably and ordinarily exercised by experienced and competent persons engaged in similar circumstances and conditions.
8.2 Force Majeure: If the supplier is prevented or hindered from performing the contract or any part of the contract by circumstances beyond its reasonable control including (without limitation) strikes, lockouts or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure, fire, flood, civil commotion or any course of whatever kind and whenever occurring, further performance of the contract shall be suspended for so long as the supplier is so prevented or hindered. The supplier shall not have liability to the customer for direct, indirect or consequential loss or damage suffered by the customer as a result of the suppliers inability to perform its obligations under the contract by reason of any such circumstances.
8.3 Cancellation: The contract is not cancelable by the customer without the express written consent of a director or other authorized person on behalf of the supplier.
8.4 Default of Customer: If performance of the contract is suspended at the request of or delayed through default of the customer including (without limitation) lack of, incomplete or incorrect instructions or refusal to collect or accept delivery of the goods or services for a period of 14 days, the supplier shall be entitled to payment at the contract rate for services already performed, goods supplied or ordered and any other additional costs thereby incurred including storage, insurance and interest PROVIDED THAT if the customer fails to collect or accept delivery of the goods or any part thereof within 7 days of written notification from the supplier that the goods are ready for collection or delivery, the supplier shall be entitled (without prejudice to its other remedies under the contract for such breach) to sell or, at its option, destroy the goods and to apply the proceeds of sale thereof if sold, and the scrap value if destroyed, towards payment of all sums due to the supplier under the contract.
9. INSPECTION AND ACCEPTANCE
9.1 Acceptance by Customer: The customer shall inspect the goods immediately upon receipt and the supplier shall not be liable for loss of, damage to or shortages of the goods discoverable on reasonable inspection of the goods, or for total loss of the goods in transit, unless the customer notifies the supplier within 3 days commencing on the date the customer is notified of the date for collection of the goods. If the customer does not give any such notice then the goods shall be considered to have been received in full and accepted by the customer.
9.2 Rejection by Customer: The customer shall not be entitled to reject goods delivered or claim damages in respect of any deviations in quantity of goods delivered of 5% or less of the value set out in the contract and the customer shall be obliged to accept and pay for at the contract rate the goods delivered
9.3 Notice of Rejection: If, after notice of rejection has been given, the customer deals with the goods as owner or if any conduct of the customer is inconsistent with such rejection or with the ownership of the goods by the supplier, the customer shall be deemed to have accepted the goods and be bound to pay for them.
10. RETURN OF GOODS
10.1 Return by Customer: The customer shall be entitled to return to the supplier any goods delivered under any order and/or contract within 28 days commencing on the date the customer is notified of the date for collection of the goods PROVIDED THAT such goods are returned in the same condition as at delivery and are not damaged, broken, fractured,
cut or scratched in any way.
10.2 Cost of Return: The customer shall return the goods to the supplier at its own risk and expense to Midbrook House, Intakes Lane, Turnditch, Belper, Derbyshire, DE56 2LU, or such other address as notified to the customer by the supplier from time to time.
The supplier also reserves the right to incur a 25% restocking fee for any goods deemed ‘ordered in error’ or deemed unsuitable by the customer.
10.3 Rejection of Returns: The supplier shall be entitled to reject any goods so returned if it considers in its reasonable opinion that such goods are damaged, broken, cut or scratched in any way.
11.1 Method of Payment: Unless the contract otherwise provides, the contract price for the goods and/or services shall be paid in cleared funds not later than the last day of the month immediately following the date of the invoice.
11.2 Payment prior to Delivery: The supplier shall be entitled at its sole discretion from time to time to require the customer to pay up to a maximum of 100% of the contract price for the goods and/or services on the date the customer submits an order to the supplier and/or up to the date the supplier notifies the customer the goods are available for collection.
11.3 Instalment: Where the goods and/or services are delivered or performed by instalments, the customer shall be obliged to pay for each instalment upon the terms set out in Condition 11.1.
11.4 Time for Payment: The time stipulated for payment shall be of the essence of the contract and failure to pay within the period specified shall entitle the supplier upon the expiration of 14 days notice in writing to suspend further performance of the contract pending payment and in addition the supplier shall be entitled, without liability, wholly or partially to cancel the contract or any other contract between the supplier and the customer without prejudice to any other remedy available to the supplier. The customer shall be liable for all cancellation, delivery and ancillary costs incurred by the supplier arising in respect of the default of the customer to pay the contract price within the specified period.
11.5 Set Off: Unless otherwise expressly agreed in writing the customer shall not be entitled to set-off against any monies due to the supplier under the contract, any amount claimed by or due to the customer from the supplier whether pursuant to the contract or on any other account whatsoever.
11.6 Supplier’s Right of Set Off. The supplier may at any time in its absolute discretion set off any payment made by the customer in respect of the goods to any outstanding debt of the customer.
12. INTEREST FOR LATE PAYMENT
12.1 Interest Charge: Without prejudice to any other remedy which may be available to the supplier hereunder or at law, if the customer fails to pay the price by the due payment date, the customer shall pay to the supplier during the period commencing on the day following the due date for payment and expiring on the day that payment of the price is received by the supplier in cleared funds, interest at the rate in force on the due date for payment pursuant to the late payment of Commercial Debts (Interest) Act 1998 on the total amount outstanding.
12.2 Accelerated Payment: If at any time the payment of any invoice falls overdue, whether such invoice is issued by the supplier under this contract or any other contract, all invoices issued by the supplier under this contract or any other contract shall immediately become due and payable.
12.3 Indemnity against Costs: The customer shall indemnify and hold the supplier harmless against all charges, costs, expenses and liabilities incurred by the supplier or the supplier’s agents in the collection of any monies due from the customer whether under this contract or any other contract.
12.4 All Monies: Until such time as the supplier has received payment in full of all sums owning to the supplier (whether under this contract or any other contract) property and title in the goods will remain with the supplier.
13.1 Customer’s Remedies: The supplier’s sole liability and the customer’s sole remedy for any shortages or loss or damage to the goods notified under Condition 9, shall be at the option of the supplier to make good any shortages, repair or rectify the goods, supply any replacements for the goods, and/or refund to the customer any amounts paid by the customer in respect of the goods.
13.2 Maximum Amount: The maximum amount of liability of the supplier to the customer for claims other than those in Condition 13 for direct loss or damage made by the customer
against the supplier whether in contract or in tort (including negligence on the part of the supplier, its servants or agents), arising out of or in connection with any defect in the goods and/or services or any act, omission, neglect or default (whether or not the same constitutes a fundamental breach of the contract) of the supplier, its servants or agents in the performance of the contract including, without limiting the generality of the foregoing, breach of any condition.
13.3 Warranty whether expressed or implied by statute, common law or otherwise shall be limited to the value of the contract.
13.4 Excluded Types of Loss: The supplier shall not be liable to the customer for any economic loss, loss of production, loss of profit, loss of opportunity, loss of bargain or any indirect or consequential injury, loss or damage or any liability of the customer to any third party made by the customer against the supplier, whether in contract or tort (including negligence on the part of the supplier, its servants and agents) arising out of or in connection with the contract.
13.5 Exclusion of Other Warranties Remedies: The customer acknowledges and agrees that in entering into the contract, it does not rely on, and shall have no remedy in respect of any statement, representation, or warranty given by any person relating to the goods or their supply (including as to condition, quality, and fitness for purpose and conformity with any sample) other than for the warranty set out in Condition 13.1 or any other warranties expressly agreed in writing by the supplier. All warranties, terms or conditions implied by statute, common law, custom or otherwise as to the condition or quality of the goods, or fitness for purpose of the goods, or correspondence of the goods with any sample are hereby excluded.
13.6 Personal Injury: Nothing in these conditions shall:
(a) Limit or exclude the liability of the supplier in respect of the death or personal injury resulting from the negligence of the supplier, its employees or agents;
(b) Exclude the conditions and warranties implied by Section 12 of the Sale and Supply of Goods Act 1979.
14.1 Termination Rights of Supplier: The supplier shall be entitled at any time without prejudice to its other rights under this contract following a breach of the contract by the customer which is incapable of remedy, or a breach of this contract which the customer fails to remedy within 30 days after notice of the breach, or a series of persistent breaches of the same provision of this contract and the customer commits a similar breach within 30 days after notice of the breaches to:-
(a) Suspend further performance of the contract and of any other contract between the supplier and the customer until the default has been made good;
(b) Terminate the contract or any other contract between the supplier and the customer or any un-filed part of the contract;
(c) Make partial supplies of the goods and services.
14.2 Claim for Costs: Notwithstanding such termination as set out in Condition 14 the customer shall pay to the supplier the price for all completed work, all materials used and goods delivered up to and including the date of termination.
14.3 Indemnity: The customer shall indemnify the supplier against any resulting loss, damage or expense incurred by the supplier in connection with the supply or non-performance or termination of the contract whether in whole or in part, including but not limited to the cost of any material, plant or tools used or intended to be used and the cost of labour and other overheads including a percentage in respect of profit.
14.4 Termination Rights of either Party: Either party shall be entitled to terminate the contract immediately by notice to the other party if the following events occur in relation to the other party;
the other party shall be made bankrupt, or if a body corporate, be dissolved, liquidated or wound up or have a petition for winding up presented against it which is not withdrawn within 30 days of its presentation or pass a resolution for voluntary winding up, or have a petition for the making of an administration order presented against it, or have a receiver or administrative receiver appointed to the whole or a part of its undertaking or assets or convene any meeting of its creditors or make an arrangement or otherwise compound or compromise with its creditors or cease, or threaten to cease, trading or suffer any similar event in any jurisdiction relevant to that party.
Unless otherwise stated, the customer shall not without the prior written consent of the supplier assign, transfer, sub-contract, delegate, charge or mortgage or otherwise dispose of the benefit of this contract or any of its rights, obligations or authorisation under this contract.
16.1 Entire Agreement: This contract constitutes the entire agreement between the parties and supersedes any previous agreement between the parties relating to the subject matter of this contract. The customer acknowledges that in entering into the contract it does not rely upon and the supplier shall have no liability, in respect of any statement, warranty, or representation of the supplier or any other person relating to the contract (other than fraudulent misrepresentation) unless it is in writing and forms part of the contract documentation.
16.2 Approvals: The supplier shall not be considered to have given any consent or approval required under this contract until it has been issued in writing.
16.3 No Partnership: This contract shall not operate so as to create a condition, partnership or joint venture of any kind between the parties hereto.
16.4 Variations: No variation or amendment of this contract shall be binding on the parties unless it is recorded in a written agreement which is signed by an authorised officer or representative of each party.
16.5 Severability: Each of the provisions of these conditions shall be separate and severable. Should any provision be invalid or unenforceable, it shall be severed from these conditions, and the remaining provisions of these conditions shall continue in full force and effect and be amended so far as possible to give valid effect to the intentions of the parties under the severed provision.
16.6 Waiver: The failure to exercise or delay in exercising any right or remedy under this contract shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies under this contract or at law. A waiver by either party of any term or condition of this contract in any instance shall not be considered to be a waiver of any such term or
condition for the future or of any subsequent breach thereof.
16.7 Notices: Notices under this contract shall be in writing and sent by hand, courier, registered post, first class post, or facsimile, to the address of the other party stated in this contract (or any other address, which a party by notice states for this purpose). Notices shall be deemed to have been received: if sent by hand, courier or registered post, on delivery; if sent by post, on the second day from but excluding the day of posting if sent to an address in the United Kingdom; and if sent by facsimile, on completion of uninterrupted transmission.
16.8 Third Party Rights: Nothing in this contract shall be taken as granting any rights expressly or implied whether contractual statutory or otherwise to persons other than the supplier and the customer including without limitation rights granted under the Contracts (Rights of Third Parties) Act 1999.
16.9 Credit Reference: The supplier may from time to time:
(a) Make a search with a credit reference agency in respect of the customer and keep a record of that search;
(b) monitor and record information relating to the customers credit performance and make such records available to credit reference agencies who will share that information with other businesses in assessing applications for credit and fraud prevention;
(c) By placing an order the customer consents to the supplier carrying out the activities referred to in this Condition 17.9.
16.10 Governing Law: This contract shall be governed by and construed in accordance with the laws of England and Wales, and the parties hereby submit to the exclusive jurisdiction of the English courts.