McMAHON’S CONCRETE PRODUCTS LTD – (“THE COMPANY”) TERMS AND CONDITIONS OF SALE
1.1 In these Conditions:
“Customer” means the Customer whether a person or company from whom the Company accepts an order for the Goods;
“Conditions” means these standard terms and conditions of sale and including any additional express terms and conditions specified by the Company and agreed in writing with the Customer;
“Packaging” means any products used for the storage, handling, transportation, delivery of the Goods;
“Contract” means the contract between the Company and the Customer for the sale and purchase of the Goods;
“Goods” means the goods (including any part delivery of them) which the Company supplies pursuant to the Contract;
- BASIS OF THE SALE
2.1 The Company shall sell and the Customer shall purchase the Goods in accordance with these Conditions. These terms and conditions shall overrule any or any other terms and conditions which the Customer purports to apply under any order. For the avoidance of doubt the Company does not accept any Customer terms and condition which purport to be incorporated into any order and only these terms and conditions shall be applicable.
2.2 Each order for Goods by the Customer to the Company shall be deemed to be a separate offer by the Customer to purchase the Goods subject to these Conditions.
2.3 Any quotation is given on the basis that it is valid for a period of 30 days subject to earlier withdrawal by the Company.
2.4 Brochures, leaflets, information sheets, price lists and technical data do not constitute offers by the Company and the Company reserves the right to withdraw the same at any time prior to acceptance of an order.
2.5 This Contract (and any, and only any, specific written documents specifically incorporated into it) forms the entire contract between the Company and the Customer and supersedes any and all previous agreements or understandings, express of implied whether by course of dealing or otherwise. No variation to these Conditions shall be binding unless agreed in writing by an authorised employee of the Company. Where the Company and / or any of its employees, servants and / or agents departs or agrees expressly to depart from these terms and conditions in any particular situation, it does so on a one-off and without prejudice basis and any such departure(s) must be first expressly agreed, reduced to writing and signed by both parties in advance and shall not be taken or deemed to be a precedent.
2.6 Employees of the Company are not authorised to make recommendations in respect of the use, storage or other characteristics of the Goods. Save where otherwise agreed in writing between the parties, any such recommendation may not be relied upon by the Customer who should take technical or professional advice regarding the suitability and use of the Goods
2.7 The Company reserves the right to record all orders and enquiries received by telephone.
- ORDERS, SPECIFICATIONS, SAMPLING AND TESTING
3.1 No order submitted by the Customer shall be deemed to be accepted by the Company until either the order is acknowledged in writing or the Goods are delivered to or collected by the Customer.
3.2 The quantity, quality and description of and any specification for the Goods shall be those set out in the Company’s quotation forming part of these Conditions or the Customer’s order (if accepted by the Company in accordance with these Conditions). It shall however be a matter solely for the Customer to satisfy itself fully that the Goods ordered and requested are suitable and for the purpose intended and the Company shall have no liability and responsibility in that regard.
3.3 Where the Goods consist of concrete, concrete blocks, asphalt, screed stone and / or sand of any kind then no warranty as to the strength of the Goods is incorporated in the Contract unless such strength is expressly set out in the quotation or in the consignment note. Where such a reference is incorporated it is a reference to strength evaluated in conformity to the relevant European and British standards as appropriate and as amended or replaced from time to time.
3.4 Stone, sand, aggregates and cast concrete goods by their nature are not always of consistent, colour, size and quality and will incorporate blemishes, imperfections, discolouration and inconsistencies. Whilst the Company takes steps to ensure consistent quality and consistency, as these are natural products, it cannot guarantee colour matches and freedom from reasonable defects. In the event of the Goods containing any such defects they shall be considered satisfactory for the purposes of the Contract and the Customer shall not be entitled to reject or seek damages in respect of them.
3.5 Where stone, sand, aggregates and / or cast concrete products are sold following selection by sample or inspection the Company cannot guarantee that the Goods will match those samples and the Goods shall be subject to reasonable variance in terms of colour, quality, appearance and size.
3.6 The Company has, in some cases, commissioned independent tests of its products and these are available for inspection by the Customer, the Company, whilst it takes steps to ensure consistent quality and consistency, as these are natural products, it again cannot guarantee that the goods supplied are the same as the samples tested. All the Company can warrant is that the goods sold and supplied are from the Quarry / Premises operated by the Company. In the event of the Goods containing defects and or any such defects they shall be considered satisfactory for the purposes of the Contract and the Customer shall not be entitled to reject or seek damages in respect of them.
- DELIVERY & RISK
4.1 Time shall not be of the essence in respect of delivery of goods. Any delivery dates given by the Company shall be estimates only and the Company cannot and does not guarantee delivery on specified dates or times.
4.2 The Customer warrants that free and unhindered access is available for delivery by heavy goods vehicle and that safe and adequate access and storage is available at the point of discharge. The Company will arrange the drop-off of goods at the delivery point whereafter they will be the sole responsibility of the Customer. The Customer agrees to and hereby does herein indemnify and keep indemnified the Company against any claims whatsoever arising from the delivery and drop-off of goods as directed by the Customer.
4.3 Unless otherwise agreed where an order is accepted (which includes carriage) the price for the Goods is based upon the Company having to make a single delivery. Where a Customer later requests that goods be delivered by way of multiple deliveries of part orders then the Company reserves the right to make reasonable additional delivery charges.
4.4 The Company does not accept any liability for damage caused to Customer’s property during delivery.
4.5 The Customer shall be obliged to accept delivery of the goods within 7 days of the estimated delivery date. Where the Customer fails to accept delivery within that timescale the Company reserves the right to:
4.5.1 Cancel the order and to recover its losses so arising,
4.5.2 To raise reasonable charges for storage of the goods,
4.6 Where the Goods are to be delivered in instalments a failure by the Company to deliver any one or more (but not all) of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more (but not all) instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
4.7 The Customer must satisfy itself as to the condition of the Goods both at the time of ordering the same and at the time of delivery and the Goods must be inspected by the Customer or Customer’s representative at the time of delivery. Any defects or shortages must be notified to the Company with 4 hours of delivery. The Company cannot consider claims made after such timescale
4.8 The Company’s liability in respect of short weight or measures of Goods supplied shall be limited to the delivery of an additional supply of the Goods in accordance with these Conditions to make up the short weight or measure. The Company shall have no liability in respect of the short weight or measure if notification is given later than 48 hours after delivery of the Goods.
4.9 In the event that the Customer requests that any Goods be deposited on a street, public highway and/or public footpath the Customer shall be deemed to represent and warrant and does so represent and warrant that it is solely responsible for compliance with all statutes and regulations relating to public roads, highways and byways including, without limitation, obtaining all necessary licences, permits, authorisations and/or permissions, and for all steps and actions which need to be taken for the protection at all times of persons or property and shall indemnify and keep indemnified the Company in respect of all costs, claims, losses or expenses (including legal costs) on an indemnity basis (other than in respect of death and personal injury caused by the negligence of the Company or its Carrier which the Company may incur as result of a breach of this Condition by the Customer.
4.10 If the Customer cancels or postpones its order, the Company shall be entitled to recover all costs accrued and/or incurred up to the date upon which the Company receives notice of such cancellation.
4.11 Risk in the goods shall pass at the time of delivery.
- PRICE OF THE GOODS
5.1 The price of the Goods shall be the price quoted by the Company. Where no price has been quoted by the Company, deliveries will be made at the Company’s prices ruling at the date of delivery or collection (as appropriate).
5.2 The price of the Goods shall be subject to the addition of VAT at the rate applicable at the time of ordering together with any other sums or levies equal to any other government duty, tax or levy applicable to the Goods that may be applicable not or at the time of delivery. Except where delivery takes place at the Company’s premises, all prices quoted by the Company include the Company’s charges for transport, insurance and packaging and any non-returnable Packaging.
5.3 The cost of returnable Packaging will be charged in addition to the price of the goods and credit applied upon the undamaged return of them.
- TERMS OF PAYMENT
6.1 Unless otherwise stated payment is due prior to delivery.
6.2 For trade account holding customers payment shall be due in accordance with the terms of the trade account. Time shall be of the essence in respect of payments due to the Company.
6.3 Where the Company has not required payment before delivery and the Customer fails to collect or accept delivery of the Goods (as appropriate) the Company shall be entitled to invoice the Customer for the price of the Goods at any time after such failure to collect or accept delivery (as appropriate).
6.4 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company the Company shall be entitled to:
6.4.1 Cancel the Contract or suspend any further deliveries to the Customer; and
6.4.2 Charge the Customer interest (both before and after any judgement) on the amount unpaid together with all costs and expenses at the rate of 4% per month annum above the ECB base rate from time to time until payment in full is made.
6.4.3 Charge the customer the full open market commercial cost of recovering any debt owed, the costs of which shall not be unreasonably incurred.
6.5 The Customer shall not be entitled to set-off, or retention. The Company shall be entitled to appropriate any payment made by the Customer to the Company to such of the Goods as the Company determines despite any purported appropriation by the Customer including, but not limited to, any goods which have been supplied by the Company to the Customer under any contract between the Company and the Customer.
7.1 Title in the Goods shall not pass to the Customer until the entire of the price of the Goods and every other sum due from the Customer to the Company (whether under the Contract or otherwise) has been paid in full and the said payment constitutes cleared funds in the Company bank account and until such payment, the Company shall, pursuant to this contract, be granted by the Customer absolutely and unconditionally, at any hour or time a full right of way, for all purposes, to enter and re-enter, pass and re-pass to enter and pass over and through the Customer’s premises to recover the Goods at the Company’s sole discretion.
7.2 Until Property in the Goods passes to the Customer, the Customer shall keep the Goods safe and store them separately from any other goods and identify them as belonging to the Company.
7.3 Notwithstanding that payment may not have been made and or that the funds may not have been cleared in the bank account of the Company, all risk of damage to or loss of the Goods shall immediately and unconditionally pass to the Customer upon delivery:
- THE COMPANY’S LIABILITY
8.1 The Company accepts no liability (except in respect of death or personal injury caused by the Claimant’s negligence to the extent that exclusion or limitation of liability is permitted by law) for any damage, loss, injury of any kind howsoever arising out of the supply of the Goods to the Customer.
8.2 It shall be the obligation of the Customer to check and ascertain (taking professional advice where appropriate) that the Goods are appropriate for the use intended by the Customer and the Company makes no representations or warranty as to their suitability for any specific use or for their incorporation into any structure, building or works.
8.3 The Company supplies low cost, low margin, bulk products. Many of the products it supplies are natural products and as such subject to variances and inconsistencies in terms of quality. The Company takes reasonable steps to control the quality of the Goods but the extent of its liability under the Contract shall be limited to the purchase price of the Goods.
8.4 Nothing in this clause shall affect the Customers statutory rights.
- INSOLVENCY AND BREACH OF CONTRACT BY CUSTOMER
9.1 If the Customer commits any breach of the Contract or of any other contract between the Customer and the Company or between the Customer and any company within the same group of companies of which the Company is a member; or if the Customer has a bankruptcy order made against him or enters into a voluntary arrangement or composition with his creditors (or being a company or body corporate) convenes a meeting of creditors or enters into liquidation(except a solvent voluntary liquidation for the purpose only of a reconstruction or amalgamation), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or an encumbrancer takes possession or a manager, administrator, receiver or administrative receiver is appointed over any of the property, undertaking or assets of the Customer (or part thereof); or the Customer ceases or threatens to cease to carry on business; or if any distraint, lien, hypothec, execution (whether legal or equitable) or other process is levied or enforced on any property of the Customer and is not paid out, withdrawn or discharged within 21 days; or the Customer is unable to pay its debts within the meaning of The Companies Act 2014 and or any other relevant or applicable act or regulation and / or the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly, then without prejudice to any other right or remedy available to the Company the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Goods have been delivered but not paid for the price shall become immediately due and payable despite any previous agreement or arrangement to the contrary.
10.1 Returnable Packaging’s remains the property of the Company at all times.
10.2 The Customer shall pay the current list price in respect of each item of Packaging, as specified by the Company from time to time.
10.3 Unless agreed otherwise all Packaging’s shall be made available for return (as specified by the Company), by the Customer empty, securely closed, free from any residual materials, substances, products or other waste and in good order.
10.4 Where Packaging’s are not returned or not returned in good order the Company shall be entitled to retain any price paid for such Packaging’s and claim any shortfall from the Customer as a debt.
- SET OFF
11.1 The Customer undertakes to pay any sum due to the Company in full without any deduction, offset or counterclaim whatsoever save in respect of any credit note issued to the Customer by the Company.
11.2 The Company shall be entitled to set off against any sum due from the Company to the Customer on any account whatsoever any sum owed to the Company or any other company within the Company’s corporate group by the Customer whether or not the same shall have become due for payment and any claim or counterclaim which the Company may have against the Customer whether liquidated or unliquidated and whether jointly or otherwise.
11.3 These terms are in addition to rights of set off at common law or in equity.
12.1 All notices between the parties in respect of the Contract must be in writing and delivered by hand, sent by first class pre-paid post, sent by facsimile transmission or sent by e-mail (in the case of notices to the Company) to the Company’s address, facsimile number or e-mail address shown on the Company’s quotation, or as notified in writing by the Company from time to time or (in the case of notices to the Customer) to its registered office (if it is a company) or (in any other case) to the last known address of the Customer or such address, facsimile number or e-mail address as shall be notified in writing to the Company by the Customer for this purpose.
12.2 Notices shall be deemed to have been received 48 hours after posting (exclusive of the day of posting) if sent by first class post; on the day of delivery, if delivered by hand; or at the time of transmission, if sent by facsimile or by e-mail, provided that a confirming copy is sent by first class pre-paid post to the other party within 24 hours after transmission.
12.3 No waiver by the Company of any breach of any provision of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.4 Any provision of the Contract which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness ad initio, voidability, unenforceability and / or unreasonableness be deemed severable and the other provisions of the Contract and the remainder of such provision shall not be affected.
12.5 This Contracts shall be governed by the laws of the Republic of Ireland.
12.6 The Customer shall not assign, sub-contract or otherwise transfer all or any of its rights, interests or obligations under the Contract without the prior written consent of the Company. Any or all of the Company’s rights or obligations under the Contract may be assigned or sub-contracted by the Company.
12.7. Nothing herein shall invalidate customer statutory rights as a consumer.
12.8. In the very unlikely event that and or notwithstanding that any clause herein shall be struck down or deemed by a court of law to be inapplicable for any reason, that offending clause shall be severed and the rest and remainder of the Contract shall remain valid and enforceable.
Dated this ________________ day of ______________________, 2017
I / we _______________________________________________________________
hereby agree to, and accept, the above terms and conditions of sale.