Ashcourt Concrete Terms & Conditions
Concrete Terms & Conditions
THE ASHCOURT GROUP
TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES
1.1 This Agreement sets out the terms and conditions upon which the Company or any of the divisions which form part of the Company has agreed to supply the Goods and/or provide the Services (as applicable) to the Customer.
“Additional Terms” means the additional terms relating to the sale of certain Goods and/or Services which are referred to in the Company’s Quotation and/or the Order Confirmation which shall be incorporated into these Conditions and which apply only to the contract with the Company named in them
“the Company” means Ashcourt Group Limited, a company registered in England and Wales under company number 11588892 whose registered office is at Foster Street, Hull, United Kingdom, HU8 8BT or any of the following companies divisions which has agreed to provide the Goods and/or Services to the Customer:
• Ashcourt Aggregates Limited registered in England and Wales with company number 11277646;
• Ashcourt Concrete Limited registered in England and Wales with company number 09549130;
• Ashcourt Fuels Limited registered in England and Wales with company number 11086783; and
• Ashcourt Highways Limited registered in England and Wales with company number 11245769.
"Business Day" means a day other than a Saturday, Sunday or public holiday in England and Wales, when banks in London are open for business.
“Quotation” means the documents issued by the Company which set out the Goods, the Services, the Deliverables, the Price and any Goods and/or Services, Specifications accepted by the Customer.
"these Conditions" means these terms and conditions as amended from time to time in accordance with clause 17.8 including any Additional Terms.
"Contract" means the contract between the Company and the Customer for the supply of Goods and/or Services in accordance with these Conditions and the Additional Terms (if any).
"Customer" means the person firm or company who purchases Goods or Services or Goods and 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 Goods and/or Services are to be delivered.
"Deliverables" means the deliverables set out in the Quotation produced by the Company for the Customer.
“Force Majeure Event” has the meaning in clause16
"Goods" means the goods (or any part of them) set out in the Quotation or if none the Order Confirmation.
"Goods Specification" means any specification for the Goods, supplied by the Customer and including any relevant plans or drawings, that is agreed in writing by the Company or referred to in the Quotation.
"Order" means the Customer's order for the supply of Goods or Services or Goods and 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 9.1
"Services" means the services, including the Deliverables, to be supplied by the Company to the Customer as set out in the Company’s Quotation other than the provision of Plant vehicles or other equipment (with or without an operator) which is governed by the Company’s Standard Conditions of Hire.
"Service Specification" means the description or specification for the 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 Goods or Services or Goods and 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 Services or delivery of the Goods 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 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 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 Business Days from its date of issue.
3.5 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.6 The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company.
3.7 Any Quotation is given subject to these Conditions.
4.1 The Goods are described in the Quotation if expressly referred to in the Order Confirmation, as modified by any applicable Goods Specification.
4.2 The Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with any claim made against the Company for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Company's use of the Goods Specification. This clause 4.2 shall survive termination of the Contract.
4.3 The Company reserves the right to amend the Goods from the Goods Specification if required by any applicable statutory or regulatory requirement, and the Company shall notify the Customer in any such event, and such minor changes as are within normal tolerances or standards.
5. DELIVERY OF GOODS
5.1 The Company shall ensure that each delivery of the Goods is accompanied by a delivery note, which shows the date of the Contract, the contract number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Contract is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
5.2 Unless the Customer has agreed to collect the Goods from any of the Company’s premises, the Company shall deliver the Goods to the Delivery Location at any time after the Company notifies the Customer that the Goods are ready.
5.3 The Customer shall provide the following in order to ensure the prompt discharge of the delivery of the Goods:
5.3.1 an authorised representative over the age of 18 to accept the Goods;
5.3.2 all timely appropriate instructions concerning the delivery and the Delivery Location of the Goods;
5.3.3 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);
5.3.4 access at the Delivery Location to the point of discharge of the Goods including manoeuvring space for any delivery vehicle, office accommodation and other facilities as reasonably required by the Company to provide the Services;
5.3.5 a Delivery Location that is compliant with health and safety legislation and regulations, licences or authorisations; and
5.3.6 the necessary facilities and equipment to take delivery of the Goods.
Failure to comply with this clause 5.3 may result in the Company refusing to make Delivery of the Goods and additional charges may be incurred.
5.4 Given the nature of the Goods, the Customer will be deemed to have accepted the Goods as being in accordance with the Contract on the earliest to occur of the following, upon collection from the Company’s premises, signature of the delivery note or the electronic PDA provided by the delivery driver upon completion of unloading of the Goods at the Delivery Location.
5.5 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6 At the anticipated time of delivery the Customer shall ensure that an authorised person is present at the agreed Delivery Location to accept the Goods and to sign the delivery note. Any signature will be legible and accompanied with a legible printed name.
5.7 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
5.8 If for any reason the Customer does not accept delivery of any of the Goods within the sum of 15 minutes of when the Goods arrive and available for discharge at the agreed Delivery Location, the Company reserves the right to charge the Customer for any period in excess of this time. The rate of such charge is to be determined by the Company and such rate is available from the Company upon request.
5.9 If the Customer fails to collect the Goods or accept delivery of the Goods at the Delivery Location within three Business Days of the Company notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Company's failure to comply with its obligations under the Contract in respect of the Goods the Company may terminate the Contract and resell the Goods.
5.10 If ten Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and any abortive Delivery Costs and charge the Customer for any shortfall below the price of the Goods.
5.11 the Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.12 If the Customer has agreed to collect the Goods he shall do so within  Business Days of the Company notifying the Customer [in writing] that the Goods are ready for collection.
6. QUALITY OF GOODS
6.1 The Company warrants that on delivery, the Goods shall (subject to clause 4.3) conform with their description and any applicable Goods Specification in all material respects.
6.2 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.
6.3 Subject to clause 6.4, the Company shall, at its option replace at the Delivery Location, or refund the price actually paid by the Customer for those Goods which fail to comply with the warranty in clause 6.1 (or if applicable clause 6.2) but only if:
6.3.1 the Customer gives notice in writing within 3 months of collection of the Goods by the Customer or delivery of the Goods to the Delivery Location that some or all of the Goods do not comply with the warranty set out in clause 6.1;
6.3.2 the Company is given a reasonable opportunity of examining such Goods; and
6.3.3 the Customer (if asked to do so by the Company) returns such Goods (or a sample) to the Company's place of business at the Company's cost.
6.4 The Company shall not be liable for the Goods' failure to comply with the warranty in clause 6.1 (or if applicable clause 6.2) if:
6.4.1 the Customer makes any further use of Goods in the allegedly defective consignment of Goods after giving a notice in accordance with clause 6.3.1;
6.4.2 the defect arises as a result of wilful damage, negligence on the part of the Customer, or abnormal storage or extreme weather or other abnormal working conditions for the Goods; or
6.4.3 the Goods differ from the Goods Specification as a result of clause 4.3.
6.5 Except as provided in this clause 6, the Company shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.1. The obligations of the Company under clause 6.1 shall for the avoidance of doubt not oblige the Company to make good any other loss or damage which may have been suffered or incurred by the Customer as a result of the Company’s failing to have supplied the Goods in accordance with clause 6.1.
6.6 The terms of these Conditions shall apply to any replacement Goods supplied by the Company.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the earlier of:
7.2.1 the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Customer in respect of which payment has become due; and
7.2.2 the Customer resells the Goods in the ordinary course of its business, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.4.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property;
7.3.2 not remove, deface or obscure any notice, mark or packaging on or relating to the Goods which identifies them at being the property of the Company;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company's behalf from the date of delivery;
7.3.4 notify the Company immediately if it becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4;
7.3.5 give the Company such information relating to the Goods as the Company may require from time to time; and
7.3.6 give the Company or its authorised representative access to the place where the Goods are located.
7.4 Subject to clause 7.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Customer resells the Goods before that time:
7.4.1 it does so as principal and not as the Company’s agent; and
7.4.2 title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4, then, without limiting any other right or remedy the Company may have:
7.5.1 the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
7.5.2 the Company may at any time:
(a) require the Customer to deliver up all Goods in its possession that have not been resold, used or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, the Company enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. SUPPLY OF SERVICES
8.1 The Company shall supply the 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 Services will be provided using reasonable care and skill.
8.2 The Company shall use all reasonable endeavours to meet any performance dates for the 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 Services.
8.3 The Company reserves the right to amend the Quotation at any time prior to completion of the performance of the 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 Services, and the Company shall notify the Customer in any such event.
8.4 In the event that it becomes apparent during the performance of the Services or following their delivery that any of the Services have not been performed in accordance with clause 8.1, and the Customer shall have notified the Company that the Services are defective within a reasonable period after performance , the Company shall at its option re-perform the Services in question for the Customer free of charge as soon as reasonably practicable or refund the charges actually paid by the Customer for those Services.
9. PRICES, CHARGES AND PAYMENT
9.1 The price for the Goods (“the Price”):
9.1.1 shall be the price set out in the Quotation; and
9.1.2 is stated ex-works and exclusive of all costs and charges of packaging, insurance of the Goods in transit and transport of the Goods, and any additional charges as otherwise provided for in these Conditions or the Additional Term as the liability of the Customer which shall be invoiced to the Customer as an additional charge.
9.2 The charges for the Services shall be calculated on a time and materials basis:-
9.2.1 calculated in accordance with the Company's daily fee rates, as set out in the Quotation; and
9.2.2 include any expenses reasonably incurred by the individuals whom the Company engages in connection with the performance of the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of Services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials utilised.
9.3 The Company reserves the right to:
9.3.1 increase the price of the Goods and/or Services and or the daily fee rate or other charges for the Services by giving notice to the Customer at any time before delivery of the Goods or completion of the performance of the Services, to reflect any increase in the cost of the Goods and/or 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 delivery date(s), quantities or types of Goods ordered, or the Goods Specification or the Service Specification; or
(c) any delay caused by any instructions of the Customer in respect of the Goods and/or Services or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the Goods and/or Services.
9.4 In respect of Goods, the Company shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Company shall invoice the Customer on at the intervals or on the invoice dates set out in the Order Confirmation.
9.5 Except where clause 15.1 applies, the Customer shall pay each invoice submitted by the Company:
9.5.1 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
9.5.2 in full and in cleared funds to a bank account nominated in writing by the Company, and
time for payment shall be of the essence of the Contract.
9.6 Receipt for payment will only be issued by the Company at the Customer’s written request.
9.7 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 Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.8 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 14 (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 9.7 will be calculated at the base rate of the Bank of England plus 8% per annum.
9.9 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).
10. INTELLECTUAL PROPERTY RIGHTS
10.1 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 Services (as applicable), the product of the Services and/or any ancillary documents, goods or other items which may be provided by the Company to the Customer in connection with any Goods or 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.
10.2 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 10.1.
11. DATA PROTECTION
11.1 Both parties will comply with all applicable requirements of the UK Data Protection Legislation and any other law which applies to the UK relating to personal data and all other legislation and regulatory requirement in force from time to time which apply to a party relating to the use of personal data. Without prejudice to the generality of this clause, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data to the Company for the duration and purposes of the Contract.
12.1 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
12.1.1 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
12.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1 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 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 13.1 and no provision is intended or shall be interpreted as seeking to limit or exclude any of the foregoing types of liability.
13.2 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 13.
13.3 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 16).
13.4 The Company’s entire liability to the Customer is as set out in clause 6 and 8.4 and the Company shall not be liable to the Customer for any of the following types of loss which are wholly excluded:
13.4.1 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;
13.4.2 damages, costs or expenses; and or
13.4.3 loss of profits, loss of anticipated profits, loss of sales or business, loss of contracts, loss of or damage to goodwill or anticipated savings.
13.5 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 or charges (ex VAT) which have actually been paid by the Customer to the Company under this Contract.
13.6 The limitations in this clause 13 apply to every liability of the Company including liability in contract, tort (including negligence) misrepresentation, restitution or otherwise
13.7 This clause 13 shall survive termination of the Contract.
14.1 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:
14.1.1 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;
14.1.2 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;
14.1.3 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
14.1.4 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.
14.2 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:
14.2.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
14.2.2 there is a change of Control of the Customer, whereby Control has the meaning given in section 1124 of the Corporation Tax Act 2010.
14.3 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 14.1.2 to clause 14.1.4, or the Company reasonably believes that the Customer is about to become subject to any of them.
15. CONSEQUENCES OF TERMINATION
15.1 On termination of the Contract:
15.1.1 the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services and Goods 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;
15.1.2 the Customer shall return all materials, equipment, documents and other property of the Company and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2 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.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
16. FORCE MAJEURE
16.1 Deliveries of the Goods and/or 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, 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.
17.1 Assignment and other dealings
17.1.1 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 Services at its sole discretion.
17.1.2 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.
17.2 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.
17.3 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 17.3 shall not affect the validity and enforceability of the rest of the Contract.
17.4 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.
17.5 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.
17.6 Entire agreement.
17.6.1 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.
17.6.2 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.
17.6.3 Nothing in this clause shall limit or exclude any liability for fraud.
17.7 Third party rights.
17.7.1 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.
17.7.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
17.8 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).
17.9 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.
17.10 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.
ASHCOURT CONCRETE LIMITED
ADDITIONAL TERMS RELATING TO THE SALE OF READY MIX CONCRETE
1.1 These Additional Terms relate only to the sale of Goods which are Concrete by the Company and are supplemental to the Terms and Conditions for the Supply of Goods and Services (“the Standard Terms”). Reference to clauses shall be to clauses in the Standard Terms, references to paragraphs are to the Additional Terms.
2.1 Any capitalised terms not defined herein are references to definitions within the Standard Terms and any reference to Goods within the Standard Terms and these Additional Terms shall be read in reference to Concrete and vice-verse.
2.2 In these Additional Terms the following words have the following meanings:
“the Company” Ashcourt Concrete Limited a company registered in England and Wales under company number 09549130 whose registered office is at Foster Street, Hull, United Kingdom HU8 8BT.
”British Standards” means BS EN 12390 and/or BS EN 206 and BS 8500 as applicable.
“BS EN 12390” means the British Standard on testing Concrete, as amended from time to time.
“BS EN 206” and “BS 5800” means the British Standard for the methods of specifying and producing Concrete, as amended from time to time.
“Concrete” means the ready mix concrete sold by the Company to the Customer.
“Delivery Note“ includes a proof of delivery note on an electronic PDA produced by the driver of the Company’s Concrete delivery Vehicle.
“Vehicle” means the Company’s delivery vehicle.
3. GOODS AND QUALITY OF GOODS
3.1 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.
3.2 Unless clause 6.2 applies all Quotations are based on compliance with clause 6.1 and to the British Standards. Sampling and testing shall be carried out in accordance with the British Standards.
3.3 Any concrete mix for the Concrete 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.
3.4 Any reference 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.
3.5 Any reference 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 Goods Specification.
4.1 Subject to clause 5.3 the Customer shall request the time as well as the date of delivery on the Order.
4.2 Subject to clause 5.3.1 and 5.6, the Customer shall ensure that its authorised representative shall sign the Delivery Note, which will contain the minimum information as set out in BS EN 206 and BS 8500 in addition to that stated in paragraph 4.3 of these Additional Terms.
4.3 The Company’s delivery driver will record in writing on the delivery note:-
4.3.1 the time of arrival of the truck at the agreed Delivery Location, and the time of completion of discharge;
4.3.2 any addition of water (or of any other materials) to the Concrete requested by the Customer; and
4.3.3 the quantity/volume of Concrete delivered.
and the Customers representative shall sign to confirm those details.
4.4 The Customer shall indemnify the Company against any damage or loss, which results from the Customer’s failure to comply with clause 5.4 and paragraph 4.2 and 4.3 of these Additional Terms.
4.5 The quantity of Concrete as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
4.6 The Company’s delivery driver will be instructed to make no alterations to a Concrete mix without specific authorisation by the Customer and noting as the delivery note (see clause 4.7) and such authorisation shall be at the Customer’s risk, in the event that the Customer or a person reasonably believed by the Company’s delivery driver to be its representative demands the driver to mix and discharge the Concrete at a workability different to that specified and ordered paragraph 6.1.4 shall apply.
5. ADDITIONAL CHARGES
5.1 Subject to clause 9.1, the Company reserves the right to apply additional charges should the Customer:
5.1.1 request delivery of the Concrete outside of the Company’s normal working hours;
5.1.2 request delivery of the Concrete in part loads rather than full loads;
5.1.3 purchase quantities of material that are substantially different to those stated on the Quotation prior to a Contract being in place;
5.1.4 request to vary the Contract; and/or
5.1.5 request the Company to remove and dispose of any surplus Concrete and the Company agrees to such request.
5.2 Where any Concrete is delivered or in the process of delivery, the Customer is responsible for providing tipping facilities for any excess Concrete ordered or Concrete rejected for reasons other than non-compliance with clause 6.1 (or 6.2 if applicable). If tipping facilities are not provided by the Customer, the Company may carry out disposal at the Customer’s expense.
5.3 Where Concrete is tipped, either after batching, loading or delivery has commenced, the Customer shall pay the full delivered price of the Goods and where, tipping facilities are not provided by the Customer, a disposal charge and any other additional costs suffered by the Company.
5.4 The Concrete must be discharged within 2 hours of batching (or such extended time as may be agreed at the Company’s discretion and the Customer’s risk or such lesser time as is required by any particular Goods Specification or ambient conditions) and if the Customer prevents discharge, the Company’s driver shall return the Concrete to the bathing plant and the Customer shall be charged for the Concrete, it’s delivery, return and the disposal.
6. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
6.1 In addition to and without limitation to clause 6.4, the Company shall not be liable to the Customer:-
6.1.1 unless the Company is notified firstly by telephone on the date of delivery and confirmed in writing as soon as reasonably practical after discovery of any defect or the quantity of the Concrete is not as ordered and in any event within 7days of the date of delivery, such notification to be made in writing or by email;
6.1.2 unless the Company is given a reasonable time to examine the Concrete and investigate any alleged defect as it sees fit;
6.1.3 if loss of workability or change in air content (where applicable) of the Concrete is caused by reasons outside the reasonable control of the Company;
6.1.4 if additional water or any other material has been added to the Concrete after it has been declared by the Company’s representative as being ready for discharge;
6.1.5 for any reduction in the temperature of the Concrete where there has been any delay in discharging the same not due to the fault of the Company.
6.1.6 if the Concrete is tested, unless:
(a) any sample for testing has been taken during discharge from the Company’s mixer in accordance with the relevant provisions of BS EN 206 and BS 8500 within one hour of loading unless a longer time has been agreed in writing;
(b) testing of fresh concrete and the making curing and testing of Concrete cubes has been carried out in accordance with relevant provisions of BS EN 12390, BS EN 206 & BS 8500; and
(c) test results have been interpreted in accordance with the relevant provisions of BS EN 206 & BS 8500 unless an alternative compliance has been agreed in writing.