The Customer’s attention is drawn in particular to the provisions of clause 8
1.1 In these Conditions, the following words shall have the following meanings: Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business. Conditions: the terms and conditions set out in this document [as amended from time to time in accordance with clause 10.5. Contract: the contract between Taydal and the Customer for the sale and purchase of the Goods and Services in accordance with these Conditions. Customer: the person or firm who purchases the Goods and Services from Taydal. Delivery Location: the location/address set out on the Quotation or as otherwise agreed in writing. Force Majeure Event: has the meaning given in clause 9. Goods: the goods (or any part of them) supplied by Taydal to the Customer. Quotation: the Customer’s quotation/estimate for the Goods and Services. Services: any services provided by Taydal to the Customer; Specification: any specification for the Goods and Services, including any related plans and drawings, that is supplied to Taydal by the Customer, or produced by Taydal and agreed in writing by the Customer. Supplier: Taydal Surfacing Limited, Morrisons Yard, Addison Way, Great Blakenham, Ipswich, Suffolk IP6 0RL.
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Customer shall ensure that the terms of the Specification are complete and accurate.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Taydal which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by Taydal and any descriptions or illustrations contained in Taydal’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract or any other contract between Taydal and the Customer for the sale of the Goods and Services.
3.1 The Supplier shall deliver the Goods and supply the Services to the Delivery Location at any time after the Supplier notifies the Customer that the Goods and Services are ready. [***Do we have a delivery location or a site address? Where do we give this information?]
3.2 Delivery of the Goods and Services shall be completed on the Goods and Services’ arrival at the Delivery Location.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Taydal shall not be liable for any delay in delivery of the Goods and Services that is caused by a Force Majeure event or the Customer’s failure to provide Taydal with adequate delivery instructions or any other instructions or information that is relevant to the supply of the Goods and Services.
3.3 If Taydal fails to deliver the Goods or supply of the Services, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Goods and Services of similar description and quality in the cheapest market available, less the price of the Goods and Services. Taydal shall have no liability for any failure to deliver the Goods and Services to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Taydal with adequate delivery instructions or any other instructions or information that is relevant to the supply of the Goods and Services.
3.4 If the Customer fails to accept delivery of the Goods or supply of the Services within 3 Business Days of Taydal notifying the Customer that the Goods and Services are ready, then, except where such failure or delay is caused by a Force Majeure Event or Taydal’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods and Services shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which Taydal notified the Customer that the Goods and Services were ready; and
(b) Taydal shall store the Goods and Services until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.5 If 10 Business Days after Taydal notified the Customer that the Goods and Services were ready for delivery the Customer has not taken delivery of them, Taydal may resell or otherwise dispose of part or all of the Goods and Services and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods and Services or charge the Customer for any shortfall below the price of the Goods and Services.
3.6 Without prejudice to any other rights the Supplier may possess if the Customer cancels any Delivery less than 24 hours before the Delivery was due to take place the Customer shall pay the Supplier:
(a) £2,000 plus VAT for any Delivery which would have involved the use of the Supplier’s machines or plant to install the goods; or
(b) £1,000 plus VAT for any Delivery which would not have involved the use of the Supplier’s machinery or plant.
3.7 The Customer shall not be entitled to reject the Goods and Services if Taydal delivers up to and including 5% more or less than the quantity of Goods and Services ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods and Services was delivered.
3.8 Taydal may deliver the Goods and Services 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.
4.1 Taydal warrants that on delivery, and for a period of 3 months from the date of delivery (warranty period), the Goods and Services shall:
(a) conform in all material respects with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship[; and]
(c) be of satisfactory quality (within the meaning of the Sale of Goods and Services Act 1979); and
(d) be fit for any purpose held out by Taydal.
(e) exercise reasonable skill and care when carrying out the Services.
4.2 Subject to clause4.3, if:
(a) the Customer gives notice in writing to Taydal [during the warranty period within 10 Business Days of discovery that some or all of the Goods and Services do not comply with the warranty set out in clause 4.1; and
(b) Taydal is given a reasonable opportunity of examining such Goods and Services; and
(c) the Customer (if asked to do so by Taydal) returns such Goods and Services to Taydal’s place of business at the Customer’s cost,
Taydal shall, at its option, repair or replace the defective Goods and Services, or refund the price of the defective Goods and Services in full.
4.3 Taydal shall not be liable for Goods and Services’ failure to comply with the warranty set out in clause 4.1 if:
(a) the Customer makes any further use of such Goods and Services after giving notice in accordance with clause 4.2; or
(b) the defect arises because the Customer failed to follow Taydal’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods and Services or (if there are none) good trade practice; or
(c) the defect arises as a result of Taydal following any drawing, design or specification supplied by the Customer; or
(d) the Customer alters or repairs the Goods and Services; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
4.4 Except as provided in this clause 4, Taydal shall have no liability to the Customer in respect of the Goods and Services’ failure to comply with the warranty set out in clause 4.1.
4.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
4.6 These Conditions shall apply to any repaired or replacement Goods and Services supplied by Taydal.
5.1 The risk in the Goods shall pass to the Customer on completion of delivery.
5.2 Title to the Goods shall not pass to the Customer until Taydal has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) all other sums which are or which become due to Taydal for sales of the Goods [or any other products] to the Customer.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as Taydal’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Taydal’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify Taydal immediately if it becomes subject to any of the events listed in clause 7.2; and
(f) give Taydal such information relating to the Goods and Services as Taydal may require from time to time,
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.2, or Taydal reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods and Services have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Taydal may have, Taydal may at any time require the Customer to deliver up the Goods and Services and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods and Services are stored in order to recover them.
6.1 The price of the Goods and Services shall be the price set out in the Quotation or as otherwise agreed in writing between the Supplier and the Customer, or, if no price is quoted, the price set out in Taydal’s published price list in force as at the date of delivery.
6.2 Taydal may, by giving notice to the Customer at any time up to 20 Business Days before delivery, increase the price of the Goods and Services to reflect any increase in the cost of the Goods and Services that is due to:
(a) any factor beyond Taydal’s control (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 and Services ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Taydal adequate or accurate information or instructions.
6.3 The price of the Goods and Services is exclusive of Value Added Tax (VAT). The Customer shall, on receipt of a valid VAT invoice from Taydal, pay to Taydal such additional amounts in respect of VAT as are chargeable on the supply of the Goods and Services.
6.4 Taydal may invoice the Customer for the Goods and Services on or at any time after the completion of delivery.
6.5 The Customer shall pay the invoice in full and in cleared funds within 20 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Taydal. Time of payment is of the essence.
6.6 If the Customer fails to make any payment due to Taydal under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Barclays Bank Plc’s base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as compelled by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Taydal in order to justify withholding payment of any such amount in whole or in part. Taydal may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Taydal to the Customer.
7.1 If the Customer becomes subject to any of the events listed in clause 7.2, or Taydal reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Taydal, Taydal may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Taydal without incurring any liability to the Customer, and all outstanding sums in respect of Goods and Services delivered to the Customer shall become immediately due.
7.2 For the purposes of clause 7.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where the Customer is a company) these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer]; or
(c) (being an individual) the Customer is the subject of a bankruptcy petition or order; or
(d) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(e) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or
(f) (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
(g) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
(h) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2(a)to clause 7.2(g) (inclusive); or
(i) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or
(j) the financial position of Taydal deteriorates to such an extent that in the opinion of the Customer the capability of the
Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.
(k) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.1 Nothing in these Conditions shall limit or exclude Taydal’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods and Services Act 1979; or
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for Taydal to exclude or restrict liability.
8.2 Subject to clause
8.1: (a) Taydal shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by Taydal, its employees, agents or subcontractors); and
(b) Taydal’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, (including losses caused by a deliberate breach of the Contract by Taydal, its employees, agents or subcontractors) shall not exceed the price of the Goods and Services].
Taydal shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond Taydal’s reasonable control , or, if it could have been foreseen, was unavoidable, including (without limitation to the forgoing) strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
10.1 Assignment and subcontracting.
(a) Taydal may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Taydal.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
10.3 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.4 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
10.5 Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Customer.
10.6 Adjudication. Any dispute arising out of or in connection with the Contract, Goods or Services shall be referred to Adjudication in accordance with Section 108 of the Housing Grants Construction and Regeneration Act 1996 as amended by the Local Democracy, Economic and Construction Act 2009 for which for the purposes of this Contract shall be treated as a “Construction Contract”.
10.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.