Dynahurst Limited - Terms & Conditions of Trading

 

  1. The Terms and Conditions of this contract are to apply in preference to and supersede any Terms and Conditions referred to, offered, or relied on by the parties whether in negotiation or at any stage in the dealings between the Seller and Buyer with reference to the goods to which the contract relates.  They represent the entire agreement between the parties.  Without prejudice to the generality of the foregoing the Seller will not be bound by any standard or printed terms furnished by the Buyer in any documents unless such terms are accepted in writing by a duly authorised executive of the Seller. No oral variation of these terms can be agreed in any circumstances.

2.     Any representations made prior to the formulation of the contract, including any literature, descriptions, specifications, oral or written statements, or any combination, the Buyer hereby acknowledges were not relied on by him.  The Buyer hereby acknowledges that he has not entered into this contract on the basis of any representation, made orally or in writing, by the Seller its employees or agents and that he therefore relied on his judgement alone when entering into the contract.

  1. In the event of the delivery being delayed by fire, accident, strikes, lockouts, delay in receipt of materials or bought-in goods or any other cause beyond the reasonable control of the Seller, a reasonable extension of time for delivery shall be granted and the Buyer shall pay such reasonable extra charges as shall have been occasioned by the delay. However, the Seller shall have the right to suspend or terminate the contract on giving written notice. During any period of such suspension the Seller shall have the right to terminate the contract, subject to further notice in writing.  Where the contract is suspended by the Seller all obligations imposed on either party by the contract shall be held in abeyance for the period of such suspension.  Where the Seller elects to terminate the contract such termination shall not affect liabilities on the Buyer’s part which fell due before termination.
  2. Any quotation is without engagement and is subject to written confirmation by the Seller on receipt of order. 
  3. The Seller’s quotation (if any) is made on the understanding that the whole of the quantity and/or service quoted for will be ordered and supplied.  Cancellation of all or any part will not be valid unless accepted by the Seller in writing in which case the Seller will be entitled to revise its quotation.
  4. Prices quoted are based upon current conditions, costs of labour materials and statutory charges and are subject to increase without notice to take account of variations of alterations in the same.  The Seller accordingly reserves the right to adjust the invoice in the event of any increase in the cost of materials, transport or of labour and/or to take account of any other costs which may arise as a result of legislation or by reason of any other event unknown to the Seller at the date of quotation.
  5. The following provisions shall apply to all goods supplied:
    • There will be a minimum charge of £50 per invoice
    • Any orders or call-offs consisting of Rebar under 8 tonnes per delivery or fabric under 2 tonnes per delivery will attract an additional lump sum charge of not less than £50
    • There will be an additional minimum charge of £50 per crane off-load delivery
    • All deliveries to a value of less than £400 will be subject to a minimum carriage charge of £50 per delivery save that this shall not apply to the supply of reinforcement
    • Where the customer requests that goods be despatched by Courier Express, TNT, British Rail, Red Star or similar means carriage will be charged and payable at an agreed cost
    • Any charge referred to in above clauses shall be in addition to the Company’s standard or carriage charges
    • Rebar schedule amendments notified after receipt or original schedules will be charged at £35 per amended schedule or a lesser figure as may from time to time be agreed   
  6. Contract dates for the delivery or collection of the goods are to be accepted by the Buyer as estimates only and no action will lie for failure on the Sellers part, however caused, to meet any such dates.
  7. Where the Buyer fails to accept delivery of the goods, or fails to arrange for their collection at the agreed time, then the risk in such goods is to lie with the Buyer and the Company may, without prejudice to any other rights it may have, make such of the following provisions as it considers appropriate:
    1. Store the goods at the Buyer’s expense
    2. Insure the goods at the Buyer’s expense
    3. Make additional charges for any further transport cost
    4. Proceed to sell the goods, on giving written notice to the Buyer, and any loss suffered shall be a debt owed by the Buyer to the Seller as though it were part of the invoice price
    5. Maintain a lien on any property of the Buyer with a right to sell any such property which is in the Seller’s possession, until such time as the Buyer has paid in full all amounts outstanding.  Where the company exercises its right to sell, it will account to the Buyer for any surplus after allowing for all amounts outstanding and for any costs and expenses incurred in relation to the goods

The foregoing provisions are also to apply where delivery or collection of goods has been delayed or deferred at the Buyer’s request, even though the Seller may have agreed to such request

  1. When the goods have been received by the Buyer, whether or not such receipt of is acknowledged in writing, the Buyer hereby agrees that he will be deemed to have examined the goods and to have accepted that they may meet fully the obligations imposed by this Agreement on the Seller.
  2. The following shall apply as to the place of delivery:

·         The place of delivery shall be such place as has been previously expressly agreed or implied or, where there is no such indication, it shall be the Buyer’s usual place of business

·         Where the place had been previously agreed, the Seller may, at its absolute discretion, agree to a request for alteration, the Buyer being responsible for any additional costs involved.

·         The foregoing provisions are without prejudice to the Seller’s right to change any place of delivery previously agreed.  The Seller will bear any costs necessitated by such change by deduction from invoice price or other means.  Except where such change arises from circumstances for which the Buyer could reasonably be held responsible

·         Where a change of place is necessitated for reasons for which the Buyer is properly held responsible, and in the opinion of the Seller no suitable alternative place can be determined, then the contract may be terminated at the discretion of the Seller and in this event an action may be maintainable against the Buyer as a breach of contract

  1. Liability for short delivery, defective materials, damage in transit or faulty workmanship will not be considered unless notification in writing is received by the Seller as follows:

                      i.        In the case of materials delivered by the Seller their servants or agents to site, or to premises of the Buyer, within three days of such delivery and on condition that the materials so delivered shall be retained as delivered and made available for inspection by or on behalf of the Seller for a reasonable time after such notification

                     ii.        In the case of materials collected from the Seller by or on behalf of the Buyer, within three days of such collection and on condition that the materials so delivered shall be retained as delivered and made available for inspection by or on behalf of the Seller for a reasonable time after such notification

                    iii.        In the case of work carried out by the Seller on site, within three days of the execution of such work and before being concreted and/or permanently incorporated in the structure. For the purposes of this condition time shall be in the essence and in the absence of such notification as aforesaid the quantity and condition of the goods delivered or collected as the case shall be deemed to be in all respects correct and satisfactory

  1. The Seller’s liability in respect of any defective goods supplied by them or faulty workmanship regarding which a valid claim has been made under condition 11 hereof will be limited to the delivery to site at the Seller’s expense of goods to replace the defective goods or the remedying of the faulty workmanship and will not extend to any other damage or loss suffered by the Buyer. In particular, but without prejudice to the generality of the foregoing, the Seller and will not be liable for loss of profit, damage to plant or for any expenditure incurred on goods supplied or remedial works performed or any consequential or special loss or damage sustained by the Buyer nor for any liability to a third party which the Buyer may incur.
  2. Nothing in these conditions shall exclude or restrict any liability arising by virtue of the Consumer Protection Act 1987.  In the event that any claim under the said Act is brought against the Seller in respect of materials supplied under this contract the Buyer will provide the Seller with all available records and documentation to assist in identifying the destination of any product supplied to the Buyer under this contract and will indemnify the Seller in full against all costs, loss expenses and damage suffered or incurred by the Seller in respect of any claims by any third party including the Buyer’s employees.
  3. Wherever any third party, including any prosecuting authority, brings an action or intends to bring an action against the Seller as a result of any actual or alleged offence, tort, breach of contract by the Buyer, then the Buyer undertakes to provide the Seller with a complete indemnity in relation to such action.  The Buyer shall also indemnify the Seller, to the full extent of any liability incurred that arises from any negligent act or omission on the part of the Buyer, whether such liability results from litigation or any settlement reached by the Seller with or without the Buyer’s consent or howsoever.
  4. All risk in relation to the goods passes to the Buyer at the time the goods are unconditionally appropriated to the contract by either party or by a third party with the consent of either party.  However, this provision is without prejudice to the provisions of clause 17 relating to the Seller’s reservation of title. 
  5. Property in the goods shall not pass to the Buyer until the entire invoice price under the contract, or under any other contract with the Seller, has been paid in full and this provision is to apply to associates or subsidiaries of either party.  Until such a time the Buyer holds such goods as bailee on the Seller’s behalf subject to the provisions following:

a.     The goods will be stored separately and be identifiable as belonging to the Seller subject to requirements of normal usage

b.     The goods are covered by the Buyer’s policy of insurance and he will assign the benefits of such policy to the Seller at its request

c.     Any monies received by the Buyer for goods supplied to him by the Seller, will be retained in a separate account and he will hold such monies as trustee on the Seller’s behalf

d.     The goods are to be maintained in a usable condition

e.     The Seller shall be entitled to enter any premises where the contract goods are stored and take possession of such goods at any time before full payment is received

f.      Where the contract goods, or any part of such goods, are incorporated with any other goods, the Buyer will make every reasonable endeavour to ensure the title in such goods (or in the goods that may result in the incorporation of the contract goods), passes to the Seller and the foregoing provisions of this clause shall be considered to apply such goods

  1. Payment for goods shall be made on or before the end of the calendar month following the month of delivery or collection and payment for goods shall not be delayed if the goods supplied are not used nor shall payment be delayed pending settlement of any claim against the Seller and accordingly the Buyer shall not be entitled to any right of set off against the purchase price.  Non-compliance with the Seller’s payment terms shall entitle us to withhold further deliveries and/or labour forthwith.  The Buyer shall not be entitled to withhold or delay the whole or any part of payment on the ground of insufficient or no proof of delivery unless the Buyer has given written notice within 7 days of the invoice date requiring proof of delivery.  The delivery note/invoice copy receipted on behalf of the Buyer or such other reasonable evidence as may be produced shall be sufficient proof of delivery for this purpose.  The Buyer shall not otherwise be entitled to require proof of delivery.  In the event of payment not being made in accordance with the provisions of this clause then:

                      i.        The seller will be entitled to an indemnity from the Buyer for all direct labour, legal and other costs incurred in the recovery of amounts which become overdue and;

                     ii.        Payment for all other goods supplied to the Buyer by the Seller shall forthwith become due for immediate payment.

  1. Steel reinforcement will be supplied in accordance with the relevant British Standard.  Other materials will be supplied to the Seller’s usual quality standard.  No warranty as to fitness for purpose is to be implied for any material.  Tools jigs or any other special equipment used in the course of manufacture or supply shall remain the property of the Seller.
  2. It is agreed that a film of rust or mill scale on reinforcement will not constitute grounds for rejection.
  3. No representation or statement made or purporting to be made by any person on the Seller’s behalf shall be binding unless subsequently confirmed in writing by the Seller.
  4. The Seller may terminate or suspend the contract, by notice in writing without liability to itself, but without prejudice to any liability on the Buyer’s part accruing before such termination or suspension and treat the Buyer in breach of contract, in the following circumstances:

a.     Where the Buyer ceases to pay his debts in the ordinary course of business or cannot pay his debts as they become so due;

b.     Where the Buyer has a receiver or administrator appointed for the whole or part of its assets;

c.     Where third parties cease, with apparent good cause, to regard the Buyer as of good financial standing;

d.     Where the company has reasonable cause to suspect that all or any of the above are likely to occur, where the Company has elected to suspend the contract, it may at any later date, by notice in writing, elect to terminate the contract with results as aforesaid

23. This contract shall be deemed to have been made in Stafford in England and the parties to the contract hereby submit to the jurisdiction of the local courts.  The contract being considered to have its closest and most real connection with England disputes or actions hereunder shall be decided in accordance with the law of England.  However the parties may agree to refer all matters arising under or out this contract to arbitration.