Patrick Keenan
TERMS AND CONDITIONS OF SALE
1. THE CONTRACT
Unless otherwise agreed, the sale and purchase of the goods (the “Products”) to be supplied by Patrick Keenan (the “Company) to the buyer (the “buyer) shall be on these conditions (the “Contract”) to the exclusion of all other terms and conditions (including any terms and conditions which the Buyer purports or seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing). Any terms and conditions sought to be incorporated by the Buyer shall be of no effect unless and to the extent they are expressly agreed to in writing by the Company.
2. ORDERS AND SPECIFICATIONS
2.1 Each order or acceptance of a quotation for the Products by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy the Products subject to these conditions. No order placed by the Buyer shall be deemed to be accepted by the Company until the Company delivers the Products to the Buyer. The Buyer shall ensure that the terms of its order and any applicable specifications are complete and accurate.
2.2 Unless otherwise agreed, any quotation is valid for a period of thirty (30) days only from its date, provided that the Company has not previously withdrawn it.
2.3 If the Products are to be manufactured or any process is to be applied to the Products by the Company in accordance with a specification submitted by the Buyer, the Buyer shall indemnify and hold harmless the Company, its partners, officers, employees, shareholders, successors and assigns against all loss, damages, costs and expenses incurred in connection with any claim which results from the Company’s use of the Buyer’s specification. For the avoidance of doubt this clause shall survive termination of the Contract.
2.4 The Company reserves the right to make any changes in the specification of the Products which are required to conform with any applicable laws, rules or regulations, or, where the Products are to be supplied to the Company’s specification, which do not materially affect its quality or performance.
3. DESCRIPTION
3.1 The description of the Products shall be as set out in the Company’s quotation. Any typographical, clerical or other error or omission on any document issued by the Company shall be subject to correction by the Company, without incurring any liability.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force.
3.3 Any advice or recommendation given by, or statement or representation made by the Company or its employees or agents to the Buyer or its employees or agents relating to the Products, which is not confirmed in writing in this Contract, is followed or acted upon entirely at the Buyer’s own risk, and the Company shall not be liable for any unconfirmed advice or recommendation.
4. DELIVERY
4.1 Delivery of the Products shall be made by the Buyer collecting the Products at the Company’s premises or, if some other place for delivery is agreed by the Company, by the Company delivering the Products to that place.
4.2 The Buyer is responsible for providing and clearly indicating to any driver operating on the Company’s behalf, a safe means of access and egress from the public road (to include providing a banksman where necessary) to the discharge point, and for ensuring that the Products delivered are used safely, and that all persons and property are protected from injury, damage and nuisance resulting from their storage, movement or use. The Buyer indemnifies the Company against all claims, costs and expenses arising from injury, damage or nuisance which result from their failure to do so.
The Buyer is responsible for ensuring that anyone who accepts delivery is authorised to do so on their behalf, and that they sign a delivery note to signify that:
(a) the Products described on the delivery note complies with the Buyer’s order; and
(b) the Products have been received in good condition/acceptable quality.
In the absence of remarks on the delivery note to the contrary, failure to provide such signature shall not be taken by the Buyer as grounds for disputing delivery, the above matters or the quantity or quality of the Products delivered.
4.3 Where copies of delivery notes are requested by the Buyer, a charge will be applied to cover the cost of administration and printing.
4.4 Any times specified by the Company for delivery of the Products are intended to be an estimate only and time for delivery shall not be made of the essence by notice.
4.5 The quantity of any consignment of Products as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery.
5. DELIVERIES OUTSIDE WORKING HOURS
The Company reserves the right to charge the Buyer for the additional cost of making deliveries outside normal working hours which are 8.00am–6.00pm Monday to Friday and 8.00am–1.00pm Saturday.
6. PART LOADS AND WAITING TIME
The Company reserves the right to charge the Buyer for waiting time if its delivery vehicle is on site for more than 40 minutes per load (Asphalt/Tar) and 10 minutes per load (stone) and to charge the Buyer for any unused capacity of the delivery vehicle.
7. CANCELLATION
Any loss incurred by the Company as a result of the cancellation of an order after the Products has been manufactured will be reimbursed by the Buyer.
8. RISK/TITLE
8.1 Risk in the Products shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Products, the time when the Company has tendered delivery of the Products.
8.2 Ownership of the Products shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of (a) the Products, and (b) all other sums which are or which become due to the Company from the Buyer on any account.
Until ownership of the Products has passed to the Buyer, the Buyer shall: (a) keep the Products insured on the Company’s behalf for its full price against all risks to the reasonable satisfaction of the Company: (b) store the Products separately from all other goods held by the Buyer so that they remain readily identifiable as the Company’s property; (c) maintain the Products in satisfactory condition and keep it insured against all risks for their full price from the date of delivery; (d) notify the Company immediately if it becomes subject to any of the events listed in clause 8.3; and (e) give the Company such information relating to the Goods as the Company may require from time to time.
8.3 The Buyer’s right to possession of the Products shall terminate immediately if the Buyer goes into liquidation or a receiver, administrator, or similar officer is appointed over all or substantially all of the assets of the Buyer, or anything analogous to any of the above under the laws of any applicable jurisdiction occurs in relation to the Buyer.
8.4 The Buyer grants the Company, its agents and employees an irrevocable license at any time to enter any premises where the Products is or may be stored in order to inspect them, or where the Buyer’s right to possession has terminated, to recover them.
9. PRICE AND PAYMENT
9.1 Unless otherwise agreed, the price for the Products shall be the Company’s relevant price at the date of the order. The price for the Products shall be exclusive of any Value Added Tax. Where VAT is to be charged, the rate applied will be the rate as set by HMRC.
9.2 The Company reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Products to reflect any increases in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture).
9.3 Credit accounts must be settled by the Buyer in accordance with terms agreed before delivery. The Company reserves the right to alter or withdraw credit facilities at any time. Customers who have no credit account with the Company must pay cash with their order. Cheques presented to the Company as payment for cash orders must be presented in sufficient time for them to clear before delivery is due.
9.4 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. The Company is entitled to set off any amount due to the Buyer from the Company against any amount due to the Company from the Buyer under this Contract.
9.5 If the buyer fails to pay the Company any sum due pursuant to the Contract, the Company shall be entitled to cancel the Contract or suspend any further deliveries to the Buyer and charge interest from the due date for payment at the annual rate of 8% above the refinancing base from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgement.
9.6 Retention may not be deducted or withheld unless specifically agreed by the Company.
10. WARRANTIES
10.1 Unless expressly provided overleaf, the Company does not undertake that a Products shall reach a particular strength or be fit for a particular purpose.
10.2 The Company shall not be liable for any defect in the Products nor any loss or damage incurred by the Buyer that arises as a result of the Company manufacturing the Products in accordance with:-any designs, specifications, calculations, or any other information supplied by the Buyer to the Company from time to time; and/or any designs, specifications, calculations, or any other information supplied by the Company to the Buyer which is based on any information the Buyer has provided to the Company and the Buyer hereby agrees that it shall be solely responsible for any inaccuracies in the information supplied to the Company for the purposes of manufacturing the Products.
10.3 Without prejudice to Clause 10.1 and 10.2, and except where the Products are sold to a person dealing as a customer, all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.4 The Company shall not be liable for defective workmanship or negligence regarding the proper use of its Products.
11. LIMITATION OF LIABILITY
11.1 Nothing in these conditions excludes or limits the liability of the Company for any matter for which it would be illegal for the Company to exclude or attempt to exclude its liability.
11.2 If the Buyer fails to comply with the requirements of the complaints procedure as recorded below, he shall be deemed to have waived all rights to pursue such dispute and to have indemnified the Company in respect of any claims arising therefrom.
11.3 The Company’s liability in respect of a failure of the Products to comply with the specification is limited to the cost of replacement of the Products, which shall be in all circumstances be limited to the cost of replacing the Products and shall exclude any additional costs arising from the Buyer having carried out any operation on or over the Products. Because of such limitation where the Buyer is intending to carry out operations which would prevent the replacement of the defective Products or add to the cost of doing so is advised to check that the Products meets the specifications before commencing such operations. All testing shall be carried out using third party accredited testing facilities or testing companies.
11.4 If a defect in the Products should have been revealed by examination on delivery, the Company’s liability in respect of such defect shall be limited to resupplying the Products.
11.5 Subject to conditions 11.1, 11.2 and 11.3, and without prejudice to condition 12.5 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), or otherwise, arising in connection with the performance or contemplated performance of the Contract, or the use or resale of the Products by the Buyer shall be limited to the Contract price.
11.6 The Company shall not be liable to the Buyer for economic loss, loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract, or the use or resale of the Products.
11.7 The Company does not accept liquidated or unliquidated damages.
12. SURFACING (SUPPLY AND LAY)
12.1 The Buyer is responsible for the removal of all weeds, moss, etc and the spraying of weedkiller.
12.2 The Buyer should ensure that the area to be surfaced is sound, free of debris, mud and soft spots before work commences. The Company accepts no responsibility for ensuring the structural soundness of any foundation or sub-base which has not been laid directly by the Company immediately prior to surfacing or any failure of the sub-base or surfacing due to insufficient foundations. In laying a bituminous product over any existing surface, as requested by the Buyer, the Company, by its actions, has not deemed the underlying surface/foundation to be acceptable.
12.3 The Company does not accept any responsibility for water ponding as a result of inadequate falls to accommodate drainage of the final surface.
13. COMPLAINTS
13.1 Where it would not significantly increase remedial costs, the Company must be given an opportunity to inspect all alleged defects and contribute to decisions concerning remedial action. If the Company reasonably disagrees with decisions concerning remedial action, it will not be liable for the cost of removal and replacement of its defective Products.
13.2 No claim regarding the quantity of Products supplied shall be brought after collection or after three (3) working days following the delivery date, and no claim regarding the specification or quality of the Products delivered shall be brought after three (3) working days from the delivery date.
13.3 To enable the Company to attend to the Buyer’s complaint, dispute or claim, the Buyer shall immediately upon the Company’s request provide it and its agents with all information, access, permission and support to take samples, make enquiries and receive information from all persons under their influence or control.
13.4 Within thirty (30) days from the date on which a complaint, dispute or claim is notified by the Buyer, he shall forward to the Company a final written claim showing details of cost against each item, and thereafter, without delay, shall provide the Company with whatever supporting documentation it shall reasonably request.
14. GENERAL
14.1 The Company may assign this Contract or any part of it to any person, firm or company. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14.2 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.5 The Company shall not be liable for damages arising from failure to supply, or delay in supplying the Products due to acts of God, force majeure, war, civil commotion, or usurped power, government order, direction or legislation, fire or accident, strike, lock out or other industrial action, shortage of materials, exceptionally inclement weather, Covid, delays because of traffic congestion or any event or occurrence over which the Company has limited or no control.
14.6 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Northern Ireland and the parties submit to the exclusive jurisdiction of the Northern Irish courts.
14.7 No variation to these terms and conditions shall be binding unless agreed in writing between he authorised representative of the Company and the Buyer.
14.8 A person who is not a party to the Contract shall have no rights under or in connection with it.
14.9 The Company shall comply with the obligations imposed on it by the Data Protection legislation being (i) the Data Protection Act 1998 and (ii) the General Data Protection Regulation (EU 2016/679) and any national implementing laws, regulations, secondary legislation and any successor legislation to the extent that those obligations are pertinent to performing the Company’s obligations under these terms and conditions.
14.10 The Company has not viewed or inspected the main Contract agreement between its Customer/Employer. The Company’s offer is based on these terms and conditions.
15. NOTICE
15.1 Any notice by either party to this Contract to the other shall be in writing addressed to the other party at its registered office address or principal place of business or such other address as notified to the party giving the notice. Notices shall be deemed to have been received 48 hours after posting (exclusive of the day of posting) if sent by first class post; on the day of delivery by hand; or at the time of transmission if sent by email.
September 2022
