Terms &#038; Conditions
1. BASIS OF SALE
1.1. All contracts between Portman Stone Ltd of 1 Airfield Way Christchurch BH23 3PE (Portman Stone) and the person who purchases goods from Portman Stone (the Customer) shall be on these conditions of sale to the exclusion of all other terms and conditions (including any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document) and no terms or conditions endorsed on , delivered with or contained in the Customer’s order, specification or other document will form part of the contract simply as a result of such document being referred to in the contract.
1.2. These terms and conditions and the documents referred to in them constitute the whole agreement and understanding of the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
1.3. Each party acknowledges that, in entering into this agreement, it has not relied on any statement, representation, assurance or warranty (whether made negligently or innocently) other than those expressly set out in these terms and conditions or the documents referred to in it.
1.4. Each party agrees that all liability for and remedies in respect of any representations are excluded except as expressly provided in these terms and conditions.
1.5. Nothing in this clause shall limit or exclude any liability for fraud.
1.6. No variation or addition to these conditions shall be binding unless agreed in writing by the authorised representatives of the Customer and Portman Stone.
2. ORDERS AND SPECIFICATIONS
2.1. Each order for goods submitted by a Customer (Order) shall be deemed to be a separate offer by the Customer to purchase goods on these terms and conditions, which Portman Stone shall be free to accept or decline at its absolute discretion.
2.2. No Order shall be deemed to be accepted by Portman Stone until it issues a formal written order acknowledgement.
2.3. Following receipt of an Order Portman Stone may issue a formal written order acknowledgement, which will confirm the relevant specification details and price and be deemed to be an offer by Portman Stone to sell the goods subject to these conditions. It will be the responsibility of the Customer to ensure that this acknowledgement correctly reflects their requirements and the Customer shall signify acceptance of Portman Stone’s offer to sell the goods by returning a signed copy of the order acknowledgement or the receipt of the deposit referred to in the order acknowledgement.
2.4. The quality, quantity and specification of the goods shall be those set out in the order form, subject always to the following.
2.4.1. All natural stone, quartz and sintered materials supplied are sold subject to their individual properties, and can present natural markings, veining, variations in colour, cracks, vents, chips and surface pits. These are supplied filled, cramped, stopped or reinforced where necessary and no claim on this account can be made.
2.4.2. When samples have been submitted exact resemblances of the product supplied to the sample can not be guaranteed.
2.4.3. Any descriptions of material offered are for guidance only and do not imply suitability for any particular purpose.
2.4.4. All thickness quoted is nominal and no liability is accepted for reasonable variations of whatsoever nature.
2.4.5. All off cuts and all sale materials sold as seen.
3. PRICE OF GOODS
3.1. The price for the goods is the price stated in Portman Stone’s order acknowledgement. Unless otherwise stated, all prices are given exclusive of VAT which will be chargeable at the rate applicable at the time of delivery.
3.2. [The prices for the goods are exclusive of the costs of packaging, insurance and carriage of the goods, which shall be paid by the Customer.]
4. TERMS OF PAYMENT
4.1. Customers without an account with Portman Stone will be required to make
payment as follows.
4.1.1. If earlier the date on which Portman Stone has tendered delivery.
4.2. Customers with an account with Portman Stone will be required to make payment within thirty days of the date of invoice which will be submitted to the Customer on or after delivery of the goods or if earlier the date on which Portman Stone has tendered delivery.
4.3. Time for payment is of the essence.
4.4. No payment shall be deemed to have been received until Portman Stone has received cleared funds.
4.5. All payments payable to Portman Stone shall become due immediately upon termination of the contract despite any other provision.
4.6. The Customer shall make payments due under these conditions without deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
4.7. Portman Stone reserves the right to charge interest at the rate of 1.5% per month on unpaid balances (whether before or after any judgement).
5.1. Delivery of goods shall be made by Portman Stone as follows:
5.1.1. For goods being installed by Portman Stone, on the date of completion of such installation.
5.1.2. For other goods, upon physical delivery by Portman Stone or collection by the Customer or authorised agent from Portman Stone within 14 days of Portman Stone giving notice that the goods are ready for delivery.
5.1.3. Any dates quoted for delivery of the goods are approximate only and Portman Stone shall not be liable for any delay in delivery of the goods howsoever caused. Delays in the deliver of an Order shall not entitle the Customer to:
(a) refuse to take delivery of the Order; or
(b) claim damages; or
(c) terminate this agreement.
Time for delivery shall not be of the essence of the contract unless expressly agreed by Portman Stone in writing. Portman Stone shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by the Customer’s failure to comply with its obligations under these terms and conditions. Portman Stone shall not be liable for failure to deliver the goods if the failure is due to reasons beyond Portman Stone’s reasonable control.
5.2. If for any reason the Customer will not accept the delivery of the goods when they are ready for delivery, Risk in the goods will pass to the Customer, the goods will be deemed to have been delivered and Portman Stone may store
the goods until delivery whereupon the customer will be liable for all related costs (including storage and insurance).
6. RISK AND PROPERTY
6.1. Risk of damage to or loss of the goods shall pass to the Customer at the time
of delivery or, if the Customer wrongly fails to take delivery of the goods, the time when Portman Stone has tendered delivery of the goods and Portman Stone may store the goods until actual delivery whereupon the Customer will be liable for all related costs (including storage and insurance).
6.2. Notwithstanding any other provision of these conditions, the property in the goods shall not pass to the Customer until Portman Stone has received full payment for the goods and all other sums which are or which become due to Portman Stone from the Customer for sales of goods or on any account.
6.3. Until such time as the property in the goods passes to the Customer, the Customer shall hold the goods on a fiduciary basis as Portman Stone’s bailee and store the goods at its own cost separately from its own goods and those of third parties so that they remain readily identifiable as the property of Portman Stone, not remove, deface or obscure any identifying mark or packaging on or relating to such goods and shall keep the goods insured on Portman Stone’s behalf to their full replacement value and (and provided the goods are still in existence and have not been re-sold) Portman Stone shall be entitled at any time to require the Customer to deliver up the goods to Portman Stone, and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the goods are stored and repossess the goods. If the Customer shall have re-sold the goods, the proceeds of such sale shall be held by the Customer as trustee for and to the account of Portman Stone. Portman Stone shall be entitled to trace into the proceeds of sale of the goods to the fullest extent permitted by law.
6.4. The Customer shall maintain such goods in satisfactory condition and keep them insured on behalf of Portman Stone against all risks with an insurer that is reasonably acceptable to Portman Stone. The Customer shall obtain an endorsement of Portman Stone’s interest in the goods on its insurance policy, subject to the insurer being willing to make the endorsement. On request the Customer shall allow Portman Stone to inspect such goods and the insurance policy.
7. WARRANTIES AND LIABILITY
7.1. Subject to condition 2.4 above and the conditions set out below Portman Stone warrants that the goods will correspond with their description at the time of delivery.
7.2. Portman Stone shall be under no liability in respect of any defect in the goods arising from any drawing, design, specification or template supplied by or on behalf of the Customer.
7.2.1. Portman Stone shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Portman Stone’s instructions (whether oral or in writing), misuse or alteration or repair of the goods without Portman Stone’s approval.
7.3. Subject as expressly provided in these conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.4. Where the goods are sold under a consumer transaction (as defined in the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these conditions.
7.5. Any claim by the Customer which is based on any defect in the quality or condition of the goods or failure of the goods to correspond with their description shall (whether or not delivery is refused by the Customer) be notified to Portman Stone within three days from the date of delivery. If delivery is not refused, and the Customer does not notify Portman Stone accordingly and allow Portman Stone reasonable opportunity, after receiving notice, of examining the goods, the Customer shall not be entitled to reject the goods and Portman Stone shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the goods had been delivered in accordance with the contract. Furthermore, Portman Stone shall not be liable for any such defect or failure if the Customer makes any further use of the goods after giving such notice.
7.6. Where the Customer deals as a consumer, the provisions of section 35 of the Sales of Goods Act 1979 (as amended) shall replace the provisions referred to in clause 7.5 above.
7.7. Where any valid claim in respect of the goods which is based on any defect in the quality or condition of the goods or their failure to match their description is notified to Portman Stone in accordance with these conditions, Portman Stone shall be entitled to replace the goods (or the part in question) free of charge or, at the discretion of Portman Stone, refund to the Customer the price of the goods (or a proportionate part of the price) but Portman Stone shall have no further liability to the Customer.
7.8. Subject to this condition 7, the following sets out the entire financial liability of Portman Stone (including any acts or omissions of employees, agents or sub-contractors). Except in respect of death or personal injury caused by Portman Stone’s negligence, Portman Stone shall not be liable to the Customer by reason of any misrepresentation (unless fraudulent) or any implied warranty condition or any other term, or any duty at common law, or under the express terms of contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise) cost, expenses or other claims for compensation whatsoever (whether caused by the negligence of Portman Stone, its employees or agents otherwise) which arise out of or in connection with the supply of the goods, their installation by Portman Stone or their use, and the entire liability of Portman Stone under or in connection with the contract shall not exceed the price of the goods actually paid by the Customer, except as expressly provided in these conditions.
7.9. Portman Stone shall not be liable to the Customer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform any of Portman Stone’s obligations in relation to the goods, if the delay or failure was due to any cause beyond the reasonable control of Portman Stone, including but not limited to strikes, lockouts, trade disputes, import or export regulations or embargoes and difficulties in obtaining raw materials.
8.1. Portman Stone reserves the right to change these terms and conditions from
time to time and when they affect current Customer orders Portman Stone will advise the Customer accordingly in sufficient time to allow the Customer to amend or terminate the contract by written notice.
9.1. A party shall be entitled to terminate this agreement with immediate effect by
giving written notice to the other party if:
9.1.1. The other party fails to pay any undisputed amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
9.1.2. The other party commits a material breach of its obligations under this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after receipt of notice in writing requiring it to do so; or
9.1.3. The other party commits a series of persistent minor breaches which when taken together amount to a material breach; or
9.1.4. The other party 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
9.1.5. The other party 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 for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
9.1.6. A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
9.1.7. A creditor or encumbrancer of the other party 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
9.1.8. 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 other party; or
9.1.9. A floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
9.1.10. A person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
9.1.11. Any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.4 to clause 9.1.10 (inclusive); or
9.1.12. The other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
9.1.13. There is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
9.2. Termination of this agreement shall not prejudice any of the parties’ rights and remedies which have accrued as at termination.
9.3. On termination of this agreement each party shall promptly return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it in connection with the supply and purchase of the goods under this agreement.
9.4. On termination of this agreement the following clauses shall survive and continue in full force and effect:
9.4.1. Clause 7.8 (Limitation of liability);
9.4.2. Clause 9.3 (Obligations on termination);
9.4.3. Clause 10.6 (Governing law and jurisdiction).
10.1. Any notice required or permitted to be given by either party to the
other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or where a person is dealing as a consumer at such address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.2. Any waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
10.3. No waiver by Portman Stone of any breach of the contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4. No failure to exercise or delay in exercising any right or remedy provided under this agreement or by law constitutes a waiver of such right or remedy nor shall it prevent any future exercise or enforcement of such right or remedy.
10.5. No single or partial exercise of any right or remedy under this agreement shall prevent or restrict the further exercise of that or any other right or remedy.
10.6. If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected.
10.7. The Customer shall not be entitled to assign the contract or any part of it or transfer or sub-contract any of its rights, benefits or obligations under these terms and conditions without the prior written consent of Portman Stone.
10.8. The parties do not intend that any term of this contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
10.9. The contract shall be governed by the laws of England and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.