Terms & Conditions
TERMS & CONDITIONS OF SALE
1.1. In these Sale Terms:
“Authorised Officer” means a person authorised by Us;
“the Contract” means the contract for the supply of Goods made by Us with You incorporating the Terms;
“the Goods” means the Goods, and/or services to be supplied by us pursuant to a Contract;
“the Terms” means these terms and any special terms agreed in writing between an Authorised Officer and You; “We”, “Us” and “Our” means Imperial Bricks Limited of Grindle House Farm, Grindle Road, Grindle, Near Shifnal, Shropshire, TF11 9JR.
“Working Day” means Monday - Friday except for any day that is a statutory bank holiday in England
“You” means the party, their employees and agents seeking to purchase Goods from Us pursuant to a Contract and “Your” shall be interpreted accordingly.
THESE TERMS DO NOT APPLY IF YOU ARE A CONSUMER i.e ANY NATURAL PERSON ACTING FOR PURPOSES OUTSIDE HIS TRADE, BUSINESS OR PROFESSION.
HEALTH AND SAFETY INFORMATION ABOUT THE USE OF THE GOODS IS PROVIDED AND IT IS YOUR RESPONSIBILITY TO BRING THIS TO THE ATTENTION OF THE USER OF THE GOODS.
- The Contract
2.1 All orders are accepted by Us only under these Terms which may not be altered except with the written agreement of an Authorised Officer. Any contrary or additional terms unless so agreed are excluded.
2.2 Your acceptance of delivery of the Goods shall (without prejudice to Clause 2.4 or any other manner in which acceptance of these Terms may be evidenced) constitute unqualified acceptance of these Terms.
2.3 Quotations do not constitute an offer and shall lapse on expiry of the stated period or, if none, 28 days from the date of the quotation. We reserve the right to withdraw or revise a quotation at any time before accepting an order.
2.4 Our acceptance of any order shall be effective only where our standard order acknowledgement is received by You.
2.5 We shall not be liable for any misrepresentation made by Us to You as to the condition of the Goods, their fitness for purpose, their physical characteristics, properties or tolerances or as to quantity, dimensions, measurements, weights or specification unless the representation is made or confirmed in writing by an Authorised Officer and/or is fraudulent.
2.6 Without prejudice to Clause 2.5 while We take every precaution in the preparation of Our catalogues, technical circulars, price lists and other literature including electronic information, these documents and data are for Your general guidance only and statements made and illustrations contained therein (in the absence of fraud on Our part) shall not form part of the Contract nor constitute representations by Us and We shall not be bound by them. If You require advice in relation to the Goods a specific request for advice should be made and any advice made or confirmed in writing by an Authorised Officer in response to such a request shall amount to a representation. Our bricks are manufactured from natural raw materials and shade variations will occur. We recommend samples are requested for verification before placing an order and always mixing from several packs, working vertically down the blades, not horizontally across the tops of the packs.
2.7 Any claim for damages under Clauses 2.5 and/or 2.6 is subject to Clause 8.
2.8 No warranty or representation is given that Goods delivered will match any samples submitted including photographs in all material respects, as samples are drawn from bulk and are representative of the whole.
2.9 We may make changes to the specification of the Goods necessary to conform to any applicable statutory or EU requirements or where Goods are supplied to Our specifications which do not materially affect their quality or performance.
2.10 The Contract or any part of it may be extended, delayed or cancelled only with the written agreement of an Authorised Officer. If an order is extended, delayed or cancelled by You whether or not with Our agreement (and without prejudice to any other rights We may have) You will indemnify Us against all losses, damages, costs and expenses We incur as a result of the extension, delay or cancellation including but not limited to the cost of any material, plant or tools used or allocated to the Contract, the cost of storage, the cost of labour and other overheads including a percentage of expected profit on the Contract and We reserve the right to resell the Goods without notice to You.
2.11 You shall be responsible to Us for ensuring the accuracy of any order including quantities, any delivery dates and applicable design, drawing dimensions, measurements, weights or specification provided by You and for giving Us any necessary information relating to the Goods within a sufficient time to enable Us to perform the Contract in accordance with its Terms.
3.1 Our quotations and prices are based on costs prevailing at the time when they are given or agreed and are exclusive of VAT which will be added at the prevailing rate. We shall be entitled to adjust the price of the Goods as at the time of delivery by such amount as may be necessary to cover: any new or increases in taxes or duties; any increase sustained by Us after the date of acceptance of Your order in any direct or indirect costs of making obtaining handling or supplying the Goods; and/or any costs and expenses including but not limited to the expense of Our employees’ time resulting from Your failure to comply with any of Your obligations under Clause 2.11.
4.1 Unless We have agreed in writing to grant You credit, payment for the Goods must be paid as directed by Us in full prior to delivery.
4.2 If credit terms have been agreed We shall invoice for all Goods on delivery and all accounts are due for payment without deduction or retention on the last day of the month following the month of the invoice.
4.3 Time for payment shall be of the essence of the Contract and We reserve the right to suspend the provision of the Goods to You where any amounts are overdue under any Contract until all such amounts have been paid.
4.4 Any discounts, deductions or rebates agreed are only available if the price is paid and received by the due date.
4.5 Credit is granted and may be reviewed at any time at Our discretion. We reserve the right with immediate effect and without prior notice to You to refuse to execute any order or Contract if the arrangements for payment by You or Your credit rating is not satisfactory to Us or Our insurers.
4.6 You may not withhold payment of any invoice or other amount due to Us by reason of any right of set off or counterclaim which You may have or allege to have for any reason.
4.7 If You fail to pay any amount due to Us under any Contract on the due date, interest shall be added to such amount at the rate of 4% over the base rate for the time being of Barclays Bank plc for the period from and including the date of receipt (whether before or after judgment).
4.8 If, in Our view, Your credit-worthiness deteriorates before delivery of the Goods, We may require payment in full or in part of the price prior to delivery, or the provision of security for payment by You in such form as is acceptable to Us.
4.9 We may offset any amount owing to Us from You against any amount owed to You by Us.
4.10 Notwithstanding any attempt at appropriation by You to the contrary, all payments made by You to Us shall be appropriated first to Goods which have been resold by You and then to Goods which remain in Your possession or control.
4.11 We have a general lien on all Your property in Our possession (although You may have paid for it in full) in satisfaction of any amount owed by You to Us under any Contract, and may deal with it as We see fit.
5.1 If Goods are collected delivery occurs when loading is complete at Our premises. If We deliver the Goods delivery occurs on arrival at the delivery address.
5.2 Delivery dates are estimates only. Time for delivery shall not be of the essence of the Contract. We shall not be liable for any damages whatsoever whether direct or indirect (including for the avoidance of doubt any liability to any third party) resulting from any delay by Us in delivery of the Goods or failure to deliver the Goods in a reasonable time whether such delay or failure is caused by Our negligence or otherwise, howsoever nor will any such delay entitle You to cancel or rescind the Contract.
5.3 We reserve the right to make delivery by instalments and tender a separate invoice payable in accordance with Clause 4 in respect of each instalment. Any claim which You may have in respect of one instalment shall not affect Your liability in respect of any other instalment.
5.4 We shall deliver the Goods as near as possible to the delivery address as a safe hard road permits. We reserve the right to refuse to deliver the Goods to sites considered in the discretion of the driver to be unsuitable, in which case Clause 5.5 will apply.
5.5 If You fail to take or make arrangements to accept delivery of the Goods or if We are unable to deliver because of inadequate access or instructions, We shall invoice You for the Goods and such invoice shall be payable in accordance with Clause 4. If You do not then collect the Goods or make arrangements to accept delivery of the Goods (at Your additional expense) within one month from the date of invoice (for which We require payment in any event), We may resell the Goods to another customer or destroy or dispose of the Goods in any way whatsoever.
5.6 Where the Goods are to be collected from Our premises You must collect such Goods within one month of being notified of their availability for collection. If You fail to collect the Goods within this time period We shall invoice You for the Goods and such invoice shall be payable in accordance with clause 4. If You do not then collect the Goods within one month from the date of invoice (for which We require payment in any event), We may resell the Goods to another customer or destroy or dispose of the Goods in any way whatsoever and shall invoice You for a storage rent.
5.7 Unless otherwise agreed the unloading of the Goods is Your responsibility. If We are required to assist or provide crane off-load an extra charge will be made.
5.8 If Goods are to be deposited other than on Your private premises You shall be responsible for compliance with all regulations and for all steps which need to be taken for the protection at all times of persons or property and will indemnify Us in respect of all losses, damages, costs and expenses We may incur as a result of such delivery whether on the public highway or elsewhere.
5.9 You will indemnify Us in respect of all claims, losses, damages, costs and expenses incurred as a result of loading, unloading or delivery in accordance with Your instructions. This indemnity will be reduced in proportion to the extent that such claims, losses, damages, costs and expenses are due to Our negligence.
5.10 We will have fulfilled Our contractual obligations in respect of each delivery of Goods provided that the quantity actually delivered is not more than 5% more or less than the quantity specified in the Contract. You shall pay for the actual quantity delivered and shall not be entitled to reject the Goods or any part of them.
6.1 You shall inspect the Goods at the place and time of loading (if collected by You) or unloading (if delivered by Us) but nothing in these Terms shall require You to break packaging and/or unpack Goods which are intended to be stored before use (such inspection hereinafter referred to as “Reasonable Inspection”).
6.2 Unless You advise Us immediately on collection or by endorsing the haulier’s receipt note on delivery and written notice is received by Us within 3 Working Days of loading or unloading (as appropriate) of any claim apparent on Reasonable Inspection for loss or damage in transit, short delivery or failure to conform to the Contract, the Goods will be deemed to have been delivered in accordance with the delivery documents and You shall not be entitled to reject the Goods.
6.3 Our liability for loss or damage in transit or short delivery apparent on Reasonable Inspection is limited to supplying the Goods as ordered and We shall not be liable for any damages whatsoever. You remain liable to pay the full invoice price of other Goods delivered in accordance with the Contract. Any other claim for damages is subject to Clause 8.
- Title and Risk
7.1 Risk in the Goods shall pass to You when the Goods are delivered. The title to the Goods (whether separate and identifiable or incorporated in or mixed with other Goods) shall remain with Us until You have paid the agreed price of the Goods (together with any accrued interest at the rate specified in Clause 4.7) and paid any other sums outstanding between You and Us whether in respect of this Contract or any other agreement.
7.2 Until title passes:
7.2.1 You shall hold the Goods as Our fiduciary agent and bailee;
7.2.2 The Goods shall be stored separately from any other Goods and readily identifiable as Ours and You shall not interfere with any identification marks, labels, batch numbers or serial numbers on the Goods;
7.2.3 You will notify Your customer that We remain the legal owners of the Goods until title passes in accordance with Clause 7.1 and We reserve the right to label the Goods accordingly;
7.2.4 We agree that You may use or agree to sell the Goods as principal and not as Our agents in the ordinary course of Your business subject to the entire proceeds of any sale or insurance proceeds received in respect of the Goods being held in trust for Us and not mixed with any other monies or paid into an overdrawn bank account and shall at all times be identifiable as Our money;
7.2.5 We agree that You may convert or incorporate the Goods into or mix the Goods with other Goods or materials (the product of such conversion, incorporation or mixture being “the New Goods”) on condition that title to the New Goods shall remain with Us until title passes in accordance with Clause 7.1;
7.2.6 You will at Our request and at Your expense assign to Us all rights You may have against Your customer.
7.3 At any time before title to the Goods passes to You (whether or not any payment to You is then overdue or You are otherwise in breach of any obligation to Us), We may (without prejudice to any other of Our rights):
7.3.1 retake possession of all or any part of the Goods and enter any premises for that purpose (or authorise others to do so) which You hereby authorise;
7.3.2 require delivery up to Us of all or any part of the Goods.
7.4 Any property of Yours in Our possession or under Our control and all property supplied to Us by or on behalf of You is held by Us at Your risk.
7.5 From the time of delivery until title in the Goods passes to You in accordance with clause 7.1, You shall store the Goods in reasonable conditions so as to maintain the quality of the Goods and You shall insure the Goods for their full value with a reputable insurer and, if We so request, ensure that Our name is noted on the insurance policy. Until title in the Goods passes to You, You shall hold the proceeds of any claim on such insurance policy on trust for Us and shall immediately account to Us with the proceeds.
8.1 Nothing in these Terms shall exclude or restrict Our liability for death or personal injury resulting from Our negligence or Our liability for fraudulent misrepresentation.
8.2 Subject to Clause 8.1, We are not liable to You in contract, tort (including negligence or breach of statutory duty) misrepresentation or otherwise for any of the following losses or damages, whether direct or indirect, and even if such losses and/or damages were foreseen, foreseeable or known, or We were advised of the possibility of them in advance:
8.2.1 loss or damage incurred by You as a result of third party claims
8.2.2 loss of actual or anticipated profits;
8.2.3 loss of business opportunity;
8.2.4 loss of anticipated savings;
8.2.5 loss of goodwill; and
8.2.6 any indirect, special or consequential loss or damage howsoever caused.
8.3 Our entire liability under or in connection with the use of, supply of or failure to supply the Goods, whether for negligence, breach of contract, misrepresentation or otherwise, is limited, in respect of each event or series of connected events, to the repair of the Goods or supply of the replacement Goods or the net amount invoiced to You of the defective, damaged or undelivered Goods which give rise to such liability.
8.4 Subject to Clause 8.5, We warrant that:
8.4.1 We have legal title to sell the Goods;
8.4.2 the Goods will be substantially free from defects in materials and workmanship; and
8.4.3 the Goods will comply with their specification.
8.5 We do not warrant that the Goods will be fit for any particular purpose even if You advise Us of any purpose for which they may be used in advance.
8.6 We will not be liable under the Contract:
8.6.1 if a defect in the Goods would have been apparent on a Reasonable Inspection under Clause 6.1 at the time of loading or unloading (as appropriate) unless You give Us notice in accordance with Clause 6;
8.6.2 unless a defect in the Goods other than is covered by Clause 8.6.1 is discovered within 60 months of the date of delivery of the Goods and We are given written notice of such defect within 15 Working Days of it being discovered;
8.6.3 unless after discovery of the defect We are given a reasonable opportunity to inspect the Goods before they are Used fixed or in any way interfered with. You may not continue to use the Goods once You have discovered any defect in the Goods. We acknowledge that the costs of suspending works are relevant to the determination of what is a reasonable opportunity and this sub Clause shall not apply to any works affecting the Goods which it may be reasonably necessary to carry out in the interests of safety and/or as emergency measures;
8.6.4 if the defect arises from variations in colour and/or texture or other changes to the appearance of the Goods including but not limited to efflorescence;
8.6.5 if the defect arises as a result of the Goods being used for a purpose or in a manner other than that specified to and agreed by Us or specified by Us;
8.6.6 if the defect arises from fair wear and tear; and/or
8.6.7 if the defect arises from Your or a third party’s negligence, mis-use, alteration or repair of the Goods, failure to follow British Standard or industry instructions relevant to the Goods, storage of the Goods in unsuitable conditions or use of the Goods in abnormal working conditions or in a manner contrary to that advised by Us.
8.7 If the Goods are not manufactured by Us or have been processed by a third party whether or not at Our or Your request Our liability in respect of any defect in or arising from the Goods will be limited to such rights against the manufacturer or the third party as We may have in respect of those Goods. On written request We will provide details of Our rights against the manufacturer or third party and so far as possible will on request assign to You any such rights.
8.8 If the Goods supplied manufactured or processed to a drawing, design, measurement, calculation or specification of Yours or as approved by You or any third person nominating or specifying the Goods then:
8.8.1 subject to Clause 8.1, We shall not be liable except in the event of:
- a) misrepresentation where the representation was made or confirmed in writing by Us;
- b) non-compliance with such drawing, design, measurement, calculation or specification; or
- c) breach of a separate written warranty signed by Us that the Goods are fit for a particular purpose.
8.8.2 You will unconditionally fully and effectively indemnify Us against all losses, damages, costs on an indemnity basis and expenses awarded against or incurred by Us in connection with or paid or agreed to be paid by Us in settlement of any claim for infringement of any intellectual property rights of any other person.
8.9 If the Goods are supplied to a drawing, design, measurement, calculation or specification provided in writing by Us then subject to Clause 8.1 We shall not be liable except in the proportion and to the extent that such damages have resulted primarily from Our breach of Contract or negligence provided that We will not be liable under Clause 8.7 if:
8.9.1 material information is withheld concealed or misrepresented by You; and/or
8.9.2 the drawing, design, measurement, calculation or specification provided by Us is not in writing signed by one of Our Authorised Officers.
8.10 You will unconditionally fully and effectively indemnify Us against all losses, damages, penalties, costs on an indemnity basis and expenses awarded against or incurred by Us in connection with or paid or agreed to be paid by Us in settlement of any claim by any third party arising from the supply or use of the Goods. This indemnity will be reduced in proportion to the extent that such losses, damages, penalties, costs and expenses are due to Our negligence.
8.11 Except as expressly provided in these Terms all warranties, conditions of other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.12 Where You resell the Goods to a third party and the third party brings any claim against Us, You will provide all reasonable assistance to Us defend the claim and You will not make any admission, negotiate or settle any claim without our prior written consent thereto.
9 Data Protection
9.1 If You are an individual or a group of individuals You agree that We may process Your personal data in accordance with the Data Protection Act 1998 and Our Data Protection Notice, copy available on request.
10 Default and Termination
10.1 “Insolvent” means You becoming unable to pay Your debts within the meanings of Section 123 (Company) or Section 268 (Individual) of the Insolvency Act 1986 or You ceasing to pay Your debts in the ordinary course of business or being unable to pay Your debts as they become due or You ceasing or threatening to cease to carry on Your business.
10.2 “Associated Company” means a subsidiary or holding company as defined in Section 1159 of the Companies Act 2006 or a subsidiary of such holding company, or any company over which Our or Your directors or shareholders have control as defined in Section 840 of the Income and Corporation Taxes Act 1988.
10.3 If You:
10.3.1 fail to pay any invoice or sum due to Us or to any of Our Associated Companies under any Contract on the due date; or
10.3.2 Your credit limit is withdrawn or exceeded or any trade credit insurance covering You or Your Associated Company is withdrawn; or
10.3.3 You or Your Associated Company become Insolvent; or
10.3.4 there is a material change in You or Your Associated Company’s constitution; or
10.3.5 You commit a material breach of this Contract and fail to remedy that breach after being requested to do so all sums outstanding between You and Us under this and any other Contract between You and any of Our Associated Companies shall become immediately due and payable and We shall be entitled to do any one or more of the following (without prejudice to any other right or remedy We may have):-
- a) require immediate payment in cleared funds of any outstanding invoice;
- b) require payment in cleared funds in advance of further deliveries of Goods;
- c) suspend or cancel any further deliveries of Goods to You under any contact without liability on Our part;
- d) resell any Goods ordered by You to any other person;
- e) without prejudice to the generality of Clause 7 exercise any of Our rights pursuant to that Clause; and/or
- f) terminate this or any other Contract with You without liability on Our part;
- g) charge You interest on any sum due or overdue under the Terms at the interest rate set out in Clause 4.7.
10.4 You shall reimburse Our costs including legal costs on an indemnity basis which We incur in enforcing Our rights under this Contract including but not limited to recovery of any sums due.
11.1 This Contract shall be governed and interpreted according to the Law of England and Wales and You agree to submit to the exclusive jurisdiction of the English Courts.
11.2 Any reference in these Terms to any Statute or Statutory Provision includes a reference to that Statute or Statutory Provision as from time to time amended extended or re-enacted.
11.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
11.4 Except as provided otherwise in these Terms We shall not be deemed to be in breach of Contract nor liable for any delays or failures to perform any of Our obligations under this Contract due to any cause beyond Our reasonable control including but not limited to industrial action, import or export regulations or embargoes, restraints or delays affecting carriers, difficulties in obtaining materials, parts, components, labour or fuel, power failure or breakdown in machinery. Should any such event occur We reserve the right to cancel or suspend by notice in writing all or any part of the Contract without incurring any liability and You will be liable to pay for any Goods delivered prior to any such cancellation.
11.5 The waiver by Us of any breach or default of these Terms shall not be construed as a continued waiver of that breach nor as a waiver of any subsequent breach of the same or any other provision.
11.6 If any Clause or sub-Clause of these Terms is held by a competent authority to be invalid or unenforceable the validity of the other Clauses and sub-Clauses of these Terms shall not be affected and they shall remain in full force and effect.
11.7 Any written notice to be given under these Terms shall be sent by You to Our Credit Department, Grindle House Farm, Grindle Road, Grindle, Near Shifnal, Shorpshire, TF11 9JR and by Us to You at Your trading address.
11.8 Nothing in these Terms or this Contract is intended to or will create any benefit for or right to enforce any of these Terms to any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.
11.9 Termination of this Contract shall not affect rights and obligations which have already accrued at the time of termination.
11.10 You may not assign or deal in any way with all or any part of the benefit of Your rights or benefits under a Contract.
11.11 We are entitled at any time to assign or deal with the benefit of any Contract or sub-contract any work relating to any Contract.
11.12 If any Clause or part of this Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from this Agreement and will be ineffective without, as far as is possible, modifying any other Clause or part of this Agreement and this will not affect any other provisions of this Agreement which will remain in full force and effect.