Terms and conditions of sale

In these terms and conditions of sale the "Seller" means Forticrete Ltd and the "Buyer" means the person, firm or company purchasing the goods from the Seller. "Goods" mean the products which are the subject of these terms and conditions of sale. "Order" means an order placed by the Buyer for supply of Goods.

1. Acceptance of Orders
The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these terms and conditions of sale. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate. All Orders placed by the Buyer and accepted by the Seller are subject to these terms and conditions of sale, which are complete and exhaustive and override any other terms, conditions and provisions purporting to refer to the Goods. All other forms, conditions, warranties, guarantees and representations (express or implied), are hereby expressly excluded. These terms and conditions of sale are not capable of being varied, supplemented or interpreted by reference to any prior course of dealing between the parties.

2. Risk
The risk in the Goods shall remain with the Seller until the point of delivery stated in the applicable Order, thereafter the risk shall be with the Buyer notwithstanding clause 3.

3. Retention of Title
The ownership of the Goods shall remain with the Seller which reserves the right to dispose of the Goods until payment in full for all the Goods has been received by the Seller in accordance with the terms and conditions of sale or until such time as the Buyer sells the Goods by way of bona fide sale at full market value and the Seller receives such payment in full. If such payment is overdue in part or in whole the Seller may, without prejudice to any of its other rights, enter upon the Buyer's premises by its servants or agents and recover the Goods for disposal as the Seller thinks fit. Payment of the contract sum shall become due immediately upon the commencement of any act or proceedings concerning the Buyer's solvency.

4. Terms of Payment
4.1 The price of the Goods shall be the price set out in the Seller’s acknowledgement of the Order, or, if no price is quoted, the price set out in the Seller's published price list in force as at the date of delivery.
4.2 Payment for the Goods shall be made by the Buyer within 30 days of delivery of the Goods by the Seller to the point of delivery contained herein. The Buyer shall pay the invoice in full and in cleared funds. Payment shall be made to the bank account nominated in writing by the Seller. Time for payment is of the essence. Interest at the rate of 1.5% per month will be charged on overdue accounts. It shall be a condition precedent to all deliveries that all payments due to the Seller from the Buyer (whether under this or any other contract) shall have been made and the Buyer's credit limit has not been exceeded. If such payments shall not have been made or the credit limit has been exceeded the Seller reserves the right to withhold the Goods until such payments have been made or the Buyer's debt to the Seller has been reduced to below the credit limit. Notwithstanding clause 10 of these terms and conditions of sale, the Seller shall not be liable to the Buyer for non delivery of the Goods for reasons contained within the clause.

5. Value Added Tax
Prices quoted are exclusive of United Kingdom value added tax, which will be charged at the rate prevailing at the time of despatch.

6. Part Loads
The Goods shall be delivered to the delivery address stated on the Order. Prices are based on minimum 15 tonne loads. Where part loads or restricted types of vehicles are required a surcharge will be included, calculated by the Seller on a fair and reasonable basis.

7. Supply of Goods
7.1 The Goods are supplied in accordance with the appropriate EN or British standard (where applicable). Company specification, and/or Seller's printed catalogue and subject to the restrictions contained therein. The Seller does not warrant that the Goods are fit for any purpose or that they will meet performance data other than those contained in the said applicable standard, specification and/or Seller's current printed catalogue.
7.2 Any alteration to standard Goods required by the Buyer shall be the subject of an extra charge. The Seller does not warrant that the Goods so varied shall be fit for the purpose intended by the purchaser.

8. Liability for Defective Goods
The Seller's liability for defective Goods is strictly limited to free replacement of the Goods. No liability for defects will be accepted by the Seller if the defect has been caused by the Buyer or arises as a result of fair wear and tear.

9. Claims
(1) Other than where it is agreed that the Buyer shall collect the Goods from the Seller, the Seller shall not be liable for damage in transit, shortage of delivery or loss of Goods in transit unless in the case of damage in transit or shortage of delivery, a separate notice in writing is given to the carrier and to the Seller and a complaint in writing is made within 14 days of the date of despatch. Where Goods are accepted by the Buyer from the carrier without being checked the Seller will accept no liability for either loss or damage to the Goods.
(2) Notwithstanding Clause 9(1), the Seller will not be liable for any claim arising out of events howsoever caused, occurring after ownership has passed to the Buyer.

10. Delivery & Offloading
Delivery is completed once the Goods are delivered to the point of delivery stated in the applicable Order. The Buyer is responsible for unloading the Goods once delivered to the delivery address unless at the Seller's discretion the delivery vehicle used is fitted with a mechanical device for unloading. Where the Seller does not deliver the Goods, the Buyer on collecting the Goods at the supplier's premises will be required to sign a Sales Docket form before departure. Time of delivery shall not be of the essence. The Seller will make all reasonable efforts to adhere to the agreed date for delivery, if any, contained herein. The Seller shall not be liable for any losses, costs, damages or expenses suffered by the Buyer or any other person or company, howsoever arising, whether caused directly or indirectly out of any failure to meet the date for delivery.

11. Variations
Instructions requiring a variation to the Order will only be taken from site staff if the Seller receives in writing confirmation from the Buyer's head office that site personnel are authorised to issue such instructions. Any additional costs the Seller incurs as a result of the implementation of any variations requested by the Buyer shall be payable by the Buyer in accordance with clause 4.

12. Timber Pallets
There will be instances where Goods are required to be supplied on timber pallets for ease of site transportation, protection of the product or in the interest of safety, the costs for which are as detailed in the sales quotation and literature details provided by the Seller. If timber pallets are provided by the Seller at the request of the Buyer such a request shall constitute a variation, payments shall be made in accordance with Clause 4 hereof.

13. Batching
Whilst every care is taken to ensure that Goods shall be delivered where possible from single batches, the Seller cannot guarantee that all deliveries will be made from one batch. In such circumstances the Seller will use its best endeavours to ensure consistency but the Goods shall not be deemed to be defective if there are slight inconsistencies. Samples are submitted as indicating only the class or type of Goods quoted for or ordered and no guarantee is given as to size or particular shade of colour or texture of the Goods delivered.

14. Clerical Errors
The Seller will not be bound by any clerical or arithmetical errors occurring in any tender, invoice or statement of account issued by it.

15. Specific Testing of Goods
(a) Any tests of the Goods or any part thereof undertaken by the Seller at the request or on the instruction of the Buyer shall be at the expense of the latter who shall reimburse the Seller the cost thereof in accordance with the payment clause of this contract.
(b) Without prejudice to the foregoing if the Buyer requires any such test to be witnessed by him or by any representative of his, and then the Seller will give to the Buyer reasonable notice in writing of the date and place thereof. If the Buyer or his representative fails to attend the same on the date and at the place so notified, the Buyer shall not be entitled to take an exception to the method, nature extent or results of the test and shall be bound by such results.

16. Third Party Liability
The Buyer shall indemnify the Seller against any loss, injury, damage, expense or claim of whatsoever nature and howsoever arising out of the storage, installation, use, operation or maintenance of the Goods once the risk has been passed to the Buyer.

17. Legal Construction
The contract shall in all respects be construed and operated as an English contract and in conformity with English law. Titles to Clauses shall not affect the legal construction.

18. Cancellation and Alteration
Any Order of sale may be altered, extended, delayed or cancelled only with the written agreement of the Seller. If an Order is purportedly extended, delayed or cancelled by the Buyer whether or not with the Seller’s consent (and without prejudice to any other rights the Seller may have) the Buyer will indemnify the Seller and keep the Seller indemnified against all losses, damages, costs and expenses the Seller incurs as a result of such alteration, extension, delay or cancellation including the cost of any material, plant or tools used or allocated in connect with the Order, the cost of storage, the cost of labour and other overheads including a percentage of anticipated profit on the Order and the Seller reserves the right to resell the Goods without notice to the Buyer.

19. Limitation of Liability
Except in respect of damage or injury to a person or injury to a person other than the Buyer or property not belonging to or in the occupation or possession of the Buyer, the liability of the Seller shall in no case exceed the value of the Order.

20. Orders in Excess of Requirements
Delivery of the quantity of Goods ordered discharges the Seller's responsibility. Where quantities of Goods are estimated by the Seller on the Buyer's request or instruction, the Seller accepts no responsibility for the sufficiency or otherwise of the quantities for the job in question. Surplus Goods due to incorrect ordering cannot be taken back by the Seller nor can any credit be issued.

21. Workmanship and Fixing
General workmanship should be in accordance with relevant regulatory standards and current recommendations. Laying, fitting and fixing should be in accordance with the general guidance provided by the Seller but the Seller will not accept liability for the use or function to which the Goods are applied. Health and Safety procedures should be observed in accordance with the relevant regulatory standards.

22. Data Protection
22.1 Where the terms “personal data”, “process”, “processing”, “processed”, “data controller”, “data processor” and “data subject” are used in this clause, they shall have the meanings given to them in the Data Protection Legislation. “Data Protection Legislation” means all applicable data protection and privacy legislation, regulations, guidance and codes of practice, including (i) the Data Protection Act 2018; (ii) Regulation (EU) 2016/679 (the "General Data Protection Regulation" or "GDPR") and any UK statute which implements any provisions of the same; (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (iv) any guidance or codes of practice issued by Working Party 29, the European Data Protection Board or the Information Commissioner from time to time (all as amended, updated or re-enacted from time to time);
22.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Buyer is the data controller and the Seller is the data processor of any personal data provided to the Seller in connection with any Order.
22.3 The Buyer acknowledges and agrees that the Seller shall be required to collect, store, share and otherwise process certain personal data (including names, addresses, email addresses and telephone numbers) relating to the Buyer’s customers/employees/customers of customers, as the case may be, for the purpose of providing and delivering the Goods and for the duration of the relevant Order.
22.4 In respect of personal data the Seller processes on the Buyer’s behalf, the Seller shall:
a) only process that personal data for the purposes of, and in accordance with, the contract and only in accordance with the Buyer’s documented instructions unless required to process such personal data otherwise by domestic laws or by the laws of the European Union applicable to the Seller (Applicable Laws). Where the Seller is relying on Applicable Laws as the basis for processing personal data, it shall promptly notify the Buyer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit it from doing so;
b) notify the Buyer promptly, and in any event within forty eight (48) hours, from the point at which it becomes aware of any security incident affecting or relating to that personal data;
c) implement appropriate technical and organisational measures against unauthorised or unlawful processing of that personal data and against accidental loss or destruction of, or damage to, that personal data;
d) not transfer that personal data (or allow that personal data to be transferred) outside of the European Economic Area (EEA) without the Buyer’s written consent;
e) ensure that access to the personal data is limited to those employees and personnel who need access to the personal data to meet the Seller’s obligations under the contract;
f) ensure that all of its employees and personnel who are involved in the processing of that personal data are subject to obligations of confidentiality;
g) not provide any third party with access to that personal data or sub-contract any of its obligations under the contract that involve processing that personal data without the Buyer’s prior written approval, such approval not to be unreasonably withheld or delayed;
h) ensure that any sub-contract it enters into (where personal data is processed by such sub-contractor) contains provisions which comply with the Data Protection Legislation and which, in any event, are no less onerous than those imposed under this Clause 22;
i) promptly assist the Buyer to respond to requests for exercising data subject rights laid down in Data Protection Legislation;
j) assist the Buyer in ensuring compliance with obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
k) unless otherwise strictly required by law, upon termination or expiry of the contract for whatever reason or otherwise at the Buyer’s choice, delete or return to the Buyer all personal data and delete existing copies;
l) make available to the Buyer all information necessary to demonstrate compliance with the obligations imposed on the Seller under this Clause 22 and allow for and contribute to reasonable audits, including inspections, conducted by the Buyer or its authorised auditor for the purposes of demonstrating such compliance, at reasonable times and on reasonable notice, not more than once in any 12-month period.
22.5 Neither party shall, through its acts or omissions, place the other party in breach of any Data Protection Legislation. Each party shall comply with all applicable requirements of the Data Protection Legislation. This Clause 22 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
22.6 Without prejudice to the generality of Clause 22.5, the Buyer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Seller for the duration and purposes of the contract. The Buyer shall be solely responsible for advising data subjects that personal data will be shared with the Seller and for bringing the Seller’s privacy policy to their attention. The Buyer will ensure that any personal data it makes available to the Seller is complete and accurate and shall provide any updated personal data to the Seller without delay.
22.7 The Buyer shall indemnify and keep indemnified and defend at its own expense (on an unlimited basis) the Seller against all costs, claims, damages or expenses incurred by the Seller, or for which the Seller may become liable, due to any failure by the Buyer or its employees, agents or sub-contractors to comply with any of its obligations under this Clause 22.

 

October 2019