RCC Terms & Conditions

THE ASHCOURT GROUP

ASHCOURT CONCRETE LIMITED

TERMS AND CONDITIONS                                                                             FOR THE SUPPLY OF ROLLER COMPACTED CONCRETE SERVICES

1.    INTRODUCTION

1.1    This Agreement sets out the terms and conditions upon which the Company has agreed to provide the RCC Services to the Customer. 

2.    DEFINITIONS:

“the Company”    means Ashcourt Concrete Limited registered in England and Wales with company number 09549130.

“Quotation”    means the documents issued by the Company which set out the RCC Services, the Price and any RCC Service Specifications accepted by the Customer. 

"these Conditions"    means these terms and conditions as amended from time to time in accordance with clause 14.8.

"Contract"    means the contract between the Company and the Customer for the supply of the RCC Services in accordance with these Conditions.

"Customer"    means the person, firm or company who purchases the RCC Services from the Company.

“Delivery Location”    the location set out in the Quotation, Order Confirmation or such other location as the parties may agree in writing where the RCC Services are to be delivered.

“Force Majeure Event”    has the meaning in clause 13.

"Goods"    means the concrete goods supplied by the Company to the Customer pursuant to the RCC Services.

"Order"    means the Customer's order for the supply of the RCC Services, as set out in the Customer's purchase order form, or the Customer's written acceptance of the Quotation, as the case may be.

“Order Confirmation”    means an order confirmation document, or other written acceptance sent by the Company to the Customer, agreeing to fulfil an Order. 

“Price“    has the meaning in clause 6.1.

"RCC Services"    means the roller compacted concrete services, including the provision of the Goods, to be supplied by the Company to the Customer as set out in the Company’s Quotation. For the avoidance of doubt, “RCC Services” shall not include the provision of Plant vehicles or other equipment (with or without an operator) which is governed by the Company’s Standard Conditions of Hire.

"RCC Service Specification"    means the description or specification for the RCC Services provided in writing by the Company to the Customer or set out in the Quotation.

3.    BASIS OF CONTRACT

3.1    The Order constitutes an offer by the Customer to purchase the RCC Services in accordance with these Conditions.

3.2    The Order shall only be deemed to be accepted when the Company issues an Order Confirmation to the Customer or if later the date of any performance of the RCC Services at the Delivery Location at which point and on which date the Contract shall come into existence.

3.3    Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions of the Goods or illustrations or descriptions of the RCC Services contained in the Company's catalogues or brochures, website or Quotation are issued or published for the sole purpose of giving an approximate idea of the RCC Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.

3.4    These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, (whether issued before or after the date of these Conditions) or which are implied by law, trade custom, practice or course of dealing which are expressly excluded to the extent permitted by law without prejudice to the Company’s right not to accept any Order. Any Quotation shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.

3.5    The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company. 

3.6    Any Quotation is given subject to these Conditions. 

4.    SUPPLY OF RCC SERVICES

4.1    The Company shall supply the RCC Services to the Customer in accordance with the Quotation in all material respects and where there is no Quotation, the Company warrants to the Customer only that the RCC Services will be provided using reasonable care and skill.

4.2    The Company warrants that, for 12 months from the date of installation of the Goods pursuant to the RCC Services, the Goods shall conform with their description in the Quotation and any applicable RCC Service Specification in all material respects. 

4.3    The Company shall use all reasonable endeavours to meet any performance dates for the RCC Services specified in the Quotation but any such dates shall be estimates only and time shall not be of the essence for the performance of the RCC Services.

4.4    The Company reserves the right to amend the Quotation and/or RCC Service Specification at any time prior to completion of the performance of the RCC Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the RCC Services, and the Company shall notify the Customer in any such event.

4.5    In the event that it becomes apparent to the Customer that the RCC Services and/or Goods do not comply with the warranties in clauses 4.1 and/or 4.2, and the Customer shall notify the Company within 14 days of becoming aware and the Company shall at its option:

4.5.1    re-perform the RCC Services in question for the Customer free of charge as soon as reasonably practicable;

4.5.2    repair the Goods in question for the Customer free of charge as soon as reasonably practicable; or 

4.5.3    refund the charges actually paid by the Customer for those RCC Services. 

4.6    The Company shall not be liable for any failure to comply with the warranties in clause 4.1 and/or 4.2 or otherwise for any loss or damage incurred by the Customer due to:

4.6.1    wilful damage or negligence on the part of the Customer;

4.6.2    abnormal or extreme weather conditions;

4.6.3    the Goods being trafficked within 48 hours of being laid pursuant to the RCC Services (other than where trafficking is carried out by the Company or the trafficking is agreed with the Company in advance);

4.6.4    any movement, settlement or heave of the base or subbase on which the Goods were laid pursuant to the RCC Services, where the Company has not been instructed by the Customer to prepare the base or subbase, or carry out independent plate bearing tests, prior to laying the Goods pursuant to the RCC Services; 

4.6.5    any pre-existing drainage failure;

4.6.6    drainage being laid less than 600mm below where the Goods were laid pursuant to the RCC Services;

4.6.7    any short-term modification of drainage required to provide the RCC Services;

4.6.8    any pollution resulting from the provision of the RCC Services; 

4.6.9    any third party claims made against the Customer in relation to the provision of the RCC Services by the Company, except where such claims directly result from the Company’s breach of this Contract; 

4.6.10    any failure by the Customer to provide the Company with an up-to-date underground services plan and/or ground penetrating radar survey report; and/or

4.6.11    the provision of the RCC Services at the Customer’s request where the Company has advised the Customer that it believes that the weather conditions are not appropriate. 

4.7    Except as provided in this clause 4, the Company shall have no liability to the Customer in respect of its failure to comply with the warranties set out in clauses 4.1 and 4.2.

4.8    The Company shall not be liable for any delay in delivery of the RCC Services that is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate instructions or information that are relevant to the supply of the RCC Services. 

4.9    The Customer acknowledges and agrees that the RCC Services may only be provided when the weather conditions are, in the Company’s reasonable opinion, appropriate. Unless otherwise agreed by the Company, this requires, without limitation (i) an air temperature of above 3 degrees celsius and below 26 degrees celsius, (ii) no standing water, ice or snow on the base or subbase, (iii) precipitation levels to be of a maximum of intermittent light showers and (iv) wind speeds to be of a level when the tipping of HGV’s is safe. 

5.    GOODS

5.1    The Company gives no warranty that Goods will be fit for any particular purpose unless the Company has been first advised in writing of all relevant factors relating to the purpose and the Company has confirmed in writing (signed by a Director) that the Goods will be suitable for that purpose. 

5.2    Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the strengths or use of the Goods is followed or acted upon entirely at the Customer’s own risk, and the Company shall not accept any liability if such advice and/or recommendation is relied upon.

5.3    All Quotations are based on compliance with the British Standards. Sampling and testing shall be carried out in accordance with the British Standards and the results of such sampling and testing shall be provided to the Customer on reasonable request. 

5.4    Any concrete mix for the Goods referred to in any Order Confirmation and/or delivery note shall be interpreted as being a concrete grade having a 28-day characteristic strength of the value stated as defined in BS EN 206 and BS 8500. 

5.5    Any reference in any Order Confirmation and/or delivery note to strength shall be interpreted as being reference to the compressive strength obtained from Concrete cubes, made, cured and tested in accordance with BS EN 12390. 

5.6    Any reference in any Order Confirmation and/or delivery note to a concrete grade being a prescribed mix, nominal mix or standard mix within any Order Confirmation and/or delivery note shall be interpreted as being one in which strength testing will not be used to judge compliance with the RCC Services Specification. 

5.7    If the Customer reasonably suspects that there is a material settlement or durability defect with the Goods, the Company shall arrange for the Goods to be inspected and tested insitu by an independent testing company. The Customer shall provide all access and assistance reasonably required to the Company and the independent testing company to allow this audit to take place. The Customer acknowledges that this testing may involve destructive testing such as coring and such testing shall be at the Customer’s own risk and cost. If the independent testing company does not identify any material settlement or durability defect in the Goods, then the Customer shall reimburse the Company for the costs it has incurred in relation to the audit. If the independent testing company does identify any material settlement or durability defect in the Goods, the Company shall at its option:

5.7.1    re-perform the RCC Services in question for the Customer free of charge as soon as reasonably practicable;

5.7.2    repair the Goods in question for the Customer free of charge as soon as reasonably practicable; or 

5.7.3    refund the charges actually paid by the Customer for those RCC Services.

6.    PRICES, CHARGES AND PAYMENT

6.1    The charges for the RCC Services shall be calculated on a time and materials basis and set out in the Quotation (the “Price”).

6.2    The Company reserves the right to charge the Customer additional fees to the Price for:

6.2.1    the costs of any excavation, relocation or removal of materials that the Company agrees to manage in connection with the RCC Services, including the costs of any testing necessary to ensure that these materials are excavated, relocated or removed safely and at an approved disposal facility;

6.2.2    where the Customer can provide safe overnight parking for plant overnight during the construction phase (consecutive days only), additional low loader moves; and

6.2.3    unless a full topographic survey for existing levels is provided before surfacing begins, any additional Goods used above the estimated volume for the RCC Services.

6.3    The Company reserves the right to:

6.3.1    increase the price of the RCC Services and/or the daily fee rate or other charges for the RCC Services by giving notice to the Customer at any time before completion of the performance of the RCC Services, to reflect any increase in the cost of the Goods and/or RCC Services to the Company that is due to:

(a)    any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b)    any request by the Customer to change the performance date(s), quantities or types of Goods ordered, or the RCC    Service Specification; or

(c)    any delay caused by any instructions of the Customer in respect of the RCC Services or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the RCC Services.

6.4    Unless otherwise stated in the Order Confirmation or agreed by the parties in writing, the Company shall invoice the Customer on or at any time after the commencement of the RCC Services. 

6.5    Except where clause 12.1 applies, the Customer shall pay each invoice submitted by the Company:

6.5.1    within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Company and confirmed in writing to the Customer; and

6.5.2    in full and in cleared funds to a bank account nominated in writing by the Company, and

6.5.3    time for payment shall be of the essence of the Contract.

6.6    Receipt for payment will only be issued by the Company at the Customer’s written request.

6.7    All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the RCC Services at the same time as payment is due for the supply of the RCC Services.

6.8    If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company's remedies under clause 11 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.8 will be calculated at the base rate of the Bank of England plus 8% per annum. 

6.9    All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7.    CUSTOMER RESPONSIBILITIES

7.1    The Customer shall provide the following in order to ensure the prompt performance of the RCC Services:

7.1.1    unless otherwise agreed by the Company, an authorised representative over the age of 18 at the Delivery Location at all times whilst the RCC Services are being performed;

7.1.2    a safe and proper route from a metalled highway to the agreed Delivery Location and all applicable documents (such as required licences, consents and permissions where applicable);

7.1.3    access at the Delivery Location including manoeuvring space for any required vehicles and any other facilities as reasonably required by the Company to provide the RCC Services;

7.1.4    a Delivery Location that is compliant with health and safety legislation and regulations, licences or authorisations; and 

7.1.5    the necessary facilities and equipment to enable the performance of the RCC Services.

Failure to comply with this clause 7.1 may result in the Company refusing to provide the RCC Services and additional charges may be incurred.

7.2    If any materials need to excavated, relocated or removed from the Delivery Location in connection with the RCC Services then, unless otherwise agreed by the Company, the Customer shall be responsible for the relocation or removal of those materials. The Customer shall ensure that these materials are excavated, relocated or removed safely and at an approved disposal facility.

7.3    Unless otherwise stated in the Quotation, the Customer is responsible for any traffic management, public or third party segregation of the work area and road space bookings required to enable the Company to provide the RCC Services.

7.4    Unless otherwise stated in the Quotation, where works pursuant to the RCC Services occur parallel to or bisect overhead utilities, the Customer shall make the relevant owner or supplier aware of the planned works and ensure there is appropriate documentation and processes in place to ensure safe working distances for plant and equipment.

7.5    Where the RCC Services require access into or across a third party property, the Customer shall obtain all necessary permissions from the land owner and any other third parties prior to the commencement of the RCC Services. 

8.    INTELLECTUAL PROPERTY RIGHTS

8.1    The Company shall at all times retain ownership of any and all intellectual property rights which may subsist or are capable of subsisting in the Goods and/or RCC Services (as applicable), the product of the RCC Services and/or any ancillary documents, goods or other items which may be provided by the Company to the Customer in connection with the RCC Services (including manuals, drawings, plans and computer programmes) and the Customer shall not obtain ownership of any such intellectual property rights whether by operation of the Conditions or otherwise. 

8.2    The Customer shall not, whether by act or omission, do anything which is inconsistent or contradictory with the ownership by the Company of any intellectual property rights as referred to in clause 8.1.

9.    CONFIDENTIALITY

9.1    Each party undertakes that it shall not at any time, and for a period of 3 years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except 

9.1.1    to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement.; and

9.1.2    as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.    LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

10.1    Neither party seeks to limit or exclude its liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation and/or for any other matter for which liability cannot be lawfully limited or excluded (including for any warranties regarding the supply of the Goods and/or RCC Services pursuant to any applicable law or legislation which the Company cannot lawfully exclude or limit). Each provision of these Conditions shall be read as subject to this clause 10.1 and no provision is intended or shall be interpreted as seeking to limit or exclude any of the foregoing types of liability.

10.2    The Company shall not be liable for any loss or damage incurred by the Customer as a result of any reliance placed by the Customer on any information or advice unless the Company has specifically agreed in writing to accept liability to the Customer for any particular piece of information or advice provided. Where the Company has agreed in writing to accept such liability then the Company’s liability to the Customer for any errors, inaccuracies, omissions or misleading statements contained in that information or advice shall be subject to the limitations and exclusions on the liability of the Company as detailed in this clause 10.

10.3    The Company shall not be deemed to be in breach of this Contract or otherwise liable to the Customer for any failure or delay in performing any of its obligations under this Contract to the extent that the failure or delay in performance is due to a Force Majeure Event (as defined at clause 13).

10.4    The Company’s entire liability to the Customer is as set out in clauses 4.5 and 5.7 and the Company shall not be liable to the Customer for any of the following types of loss which are wholly excluded: 

10.4.1    indirect, special or consequential loss, regardless of whether in each case the Company was aware or ought reasonably to have been aware of the possibility for such loss or damage to occur; and/or

10.4.2    loss of profits or income, loss of anticipated profits or income, loss of sales or business, loss of contracts, business interruption, loss of or damage to goodwill or anticipated savings.

10.5    The maximum financial liability of the Company to the Customer for any and all claims relating to this Contract shall be limited to the Price which have actually been paid by the Customer to the Company under this Contract.

10.6    The limitations in this clause 10 apply to every liability of the Company including liability in contract, tort (including negligence) misrepresentation, restitution or otherwise 

10.7    This clause 10 shall survive termination of the Contract.

11.    TERMINATION

11.1    Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

11.1.1    the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;

11.1.2    the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

11.1.3    the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

11.1.4    the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

11.2    Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:

11.2.1    the Customer fails to pay any amount due under the Contract on the due date for payment; or 

11.2.2    there is a change of Control of the Customer, whereby Control has the meaning given in section 1124 of the Corporation Tax Act 2010.

11.3    Without affecting any other right or remedy available to it, the Company may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Company if the Customer fails to pay any amount due to the Company under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 11.1.2 to clause 11.1.4, or the Company reasonably believes that the Customer is about to become subject to any of them.

12.    CONSEQUENCES OF TERMINATION

12.1    On termination of the Contract:

12.1.1    the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of RCC Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;

12.1.2    the Company may enter the Customer's premises and take possession of all materials, equipment, documents and other property of the Company and any Deliverables or Goods which have not been fully paid for. Until they have been collected by the Company, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

12.2    Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

12.3    Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

13.    FORCE MAJEURE

13.1    Deliveries of the Goods and/or RCC Services may be totally or partially suspended and neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control, including, without limitation acts of god, flood, pandemic, lightning, war, supply chain shortages, plant breakdowns, interruptions by third parties, strikes or other industrial action (“a Force Majeure Event”). In such circumstances the affected party shall notify the other should such an occasion arise and be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for more than 90 days, the party not affected may terminate this Contract by giving written notice to the affected party.

14.    GENERAL

14.1    Assignment and other dealings

14.1.1    The Company may at any time;

(a)    assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract; and/or

(b)    sub-contract the performance of any and all of the supply of the Goods and/or RCC Services at its sole discretion.

14.1.2    The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company.

14.2    Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) and may not be served by email. 

14.3    Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 14.3 shall not affect the validity and enforceability of the rest of the Contract.

14.4    Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

14.5    No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

14.6    Entire agreement.

14.6.1    The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

14.6.2    Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misrepresentation] based on any statement in the Contract.

14.6.3    Nothing in this clause shall limit or exclude any liability for fraud.

14.7    Third party rights. 

14.7.1    Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

14.7.2    The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

14.8    Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by each of the parties (or their authorised representatives).

14.9    Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

14.10    Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.