ROSE BUILDING SUPPLIES LIMITED – TERMS AND CONDITIONS OF BUSINESS
These terms and conditions apply to the supply of goods and services to you (‘the Customer’) by Rose Building Supplies Limited (‘Rose’).
2.1 In these Conditions the following definitions apply:
Business Day means a day other than Saturday, Sunday and public holidays;
Conditions means the terms and conditions set out in this document;
Contract means the agreement between Rose and the Customer for the sale and purchase of Goods incorporating these Conditions;
Delivery Location means the location(s) for delivery of the Goods and or supply of Services as set out in the Order by the Customer;
Force Majeure means an event or sequence of events beyond Rose reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) the an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment, telecommunications service or materials required by or for performance of the Contract;
Goods means the supply of aggregate and/or materials and/or waste removal as requested by the Customer by Rose to the Customer under a Contract;
Order means the Customer's order for the Goods and/or Services from Rose;
Price means the price charged by Rose for the Goods and or Services supplied under a Contract;
Services means the services supplied by Rose to the Customer under a Contract for the delivery of the Goods;
VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods and/or Services;
2.2 Unless the context otherwise requires:
2.2.1 each gender includes the others;
2.2.2 the singular includes the plural and vice versa;
2.2.3 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
2.2.4 clause headings do not affect their interpretation;
2.2.5 general words are not limited by example;
2.2.6 references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time; and
2.2.7 references to 'writing' includes faxes and emails.
3.1 These terms and conditions apply and form part of the Contract between Rose and the Customer. They supersede any previously issued terms and conditions.
3.2 No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase order, Customer’s confirmation of order or Customer’s specification will form part of the Contract.
3.3 Each Order by the Customer to Rose will be deemed to be an offer to purchase Goods and/or Services subject to the Conditions. No Order which has been accepted by Rose may be cancelled by the Customer except with the written agreement of Rose.
3.4 An Order will be accepted by Rose only when it confirms so to the Customer at its sole discretion. Rose reserves the right at all times to reject any Order, in whole or in part, at its sole discretion. If Rose accepts an Order by confirming the same to the Customer then there will be a binding agreement in place between Rose and the Customer for the supply of the relevant Goods and/or Services to the Customer.
3.5 No variation of these Conditions or to an Order, or to an estimate from Rose will be binding unless expressly confirmed in writing by a duly authorised signatory on behalf of Rose. If the Customer wishes to make a variation to the Goods to be supplied after acceptance of an Order by Rose then it may make a request to Rose in writing and Rose will thereafter:-
If Rose will accept such variation then the Customer will be liable to pay such additional costs of Rose as it shall notify to the Customer.
3.6 Rose may supply estimates for the supply of Goods and/or Services. In the event that an estimate is given by Rose it will be deemed to be an invitation to treat (and shall not be an offer) by Rose to supply Goods and/or Services on and subject to the Conditions. Any estimate by Rose for the supply of Goods and/or Services will be valid for 1 months from the date of issue.
3.7 Rose’s employees or agents are not authorised to make any representations concerning the Goods or Services unless such representations are confirmed by Rose in writing to the Customer. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not confirmed by Rose in writing but nothing in these Conditions affects either party’s liability for fraudulent misrepresentation.
4.1 Subject to clause 4.2 the Price shall be as set out on the estimate issued by Rose. Unless otherwise stated the Price does not include VAT. VAT is charged by Rose at the then applicable rate which the Customer must pay.
4.2 Estimates are not binding on Rose and Rose may need to make charges in addition to the charges set out in its estimate. This can occur for a number of reasons, including (but not limited to) if:-
Where additional charges will be made by Rose then Rose will first inform the Customer of any additional cost and seek their approval to procced except for where:-
(i) it is not possible to contact the Customer within a reasonable time, or
(ii) it is not (in Rose’s opinion) safe not to carry out and finish supplying the Goods and/or Services, for example because the Customer’s goods or premises would be left in a dangerous condition or unprotected from theft if Rose did not complete the supply of the Goods and/or Services.
If the Customer does not wish to incur such additional cost then Rose will not be liable for (i) any delay in the supply of the Goods and/or Services or (ii) any failure to continue or complete the supply of any Goods and/or Services under the Contract.
4.3 Unless otherwise agreed in writing (and subject to clause 13.4) or in accordance with a credit facility as agreed by Rose for the benefit of the Customer, the Price is payable by the Customer to Rose in full in cleared funds 48 hours prior to delivery of the Goods and time for payment of the Price is of the essence.
4.4 If the Price is not paid by the due dates, interest shall accrue on the unpaid portion of the Price at the rate of eight (8) per cent per annum above the base rate from time to time of Barclays Bank plc in accordance with the terms of the Late Payment of Commercial Debts (Interest) Act 1998.
4.5 Without prejudice to or limiting any other rights that Rose may have, where any sums due to Rose are not paid in full in cleared funds by the due date under clause 4.3 Rose may:
4.6 If the Delivery Location is not accessible or fit for delivery of the Goods at the estimated delivery date or the items have not been fully paid in accordance with clause 4.3 above then Rose reserves the right to charge the Customer £100.00 by way of a cancellation fee in relation to the Order.
5.1 The Goods will be delivered to the Delivery Location. The Services will be supplied to the Delivery Location.
5.2 The Goods will be deemed delivered on arrival of the Goods at the Delivery Location and the Services will be deemed complete upon arrival and unloading at the Delivery Location.
5.3 Rose will use its reasonable endeavours to meet estimated delivery dates and times for Goods and Services but such dates are approximate only, and time of delivery of the Goods and Services is not of the essence.
5.4 If the Customer wishes to change a delivery date and or time for Goods then the Customer must give Rose not less than 48 hours notice of such request before the estimated delivery date and time.
5.5 If the Delivery Location is not accessible or fit for delivery of the Goods at the estimated delivery date then Rose reserves the right to charge the Customer the price of the Goods and any reasonable associated costs with delivery by way of a cancellation fee in relation to the Order.
5.6 Rose will not be liable for any delay in or failure of delivery of the Goods or any delay in or failure of the supply of Services caused by:-
5.7 If, 10 Business Days after the due date for delivery or collection of the Goods, the Customer has not taken delivery, Rose may resell or otherwise dispose of the Goods. If such Goods are resold or otherwise disposed of, Rose will:
i) invoice the Customer for reasonable storage charges and costs of resale to include the cost of any re-stock fee imposed on Rose by the supplier; and
ii) account to the Customer for any excess of the resale price over (provided the Customer has paid the Price in full in cleared funds), or invoice the Customer for any shortfall of the resale price below, the price paid by the Customer for the Goods.
6.1 Risk in the Goods will pass to the Customer on arrival of the Goods at the Delivery Location. Unless otherwise agreed in writing Rose will unload the Goods at the Customer’s own cost and risk.
6.2 Title to the Goods will not pass to the Customer until Rose has received payment in full and cleared funds for all charges due in respect of the relevant Contract under which the Goods are supplied.
6.3 Until title to the Goods has passed to the Customer, the Customer will:
6.4 If, at any time before title to the Goods has passed to the Customer, the Customer has, or Rose reasonably believes the Customer is likely to, become subject to any of the events specified in clause 12.1, Rose will be entitled to:
6.4.1 repossess all or any of the Goods and to take possession of all or any goods incorporating Goods; and
6.4.2 require the Customer at the Customer’s expense to redeliver the Goods to Rose and if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them with such transport as may be necessary or instruct agents to do so.
6.5 The Customer warrants that it is not at the time of entering into the Contract insolvent and knows of no circumstance which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.
7.1 For the avoidance of doubt Rose shall not be liable to any person company or other organisation other than the Customer and the Customer may not assign to any third party the benefit of the Contract.
7.2 Rose confirms it will be fully insured in order to perform the Goods and/or Services under the Contract.
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 The Customer acknowledges that in entering into the Contract it does so not in reliance on any representation, warranty, or other provision except as expressly provided in these Conditions. Nothing in these Conditions excludes any liability for fraud.
7.5 The Client is responsible for ensuring that any “Personal Data” (as defined by the Act) it supplies to Rose has been collected within the terms of the Data Protection Act 1998. Rose agrees to process the date in accordance with lawful and reasonable written instructions provided by the Client and shall in all circumstances ensure that any such Personal Data is kept and stored securely.
8.1 The Customer will at its own cost and expense and for the benefit of Rose:
8.1.1 place all orders on the terms of the Conditions and ensure that their contents are complete and accurate;
8.1.2 ensure that each part of any specification, information and data which it provides is complete, accurate and contains all information that Rose may require;
8.1.3 cooperate (and procure that its employees, agents and contractors cooperate) fully with Rose in relation to delivery or collection of the Goods and supply of the Services (including but not limited to ensuring the Delivery Location is available at the estimated time for supply of the Goods and/or Services) and comply with such instructions as Rose may reasonably issue during the supply of the Goods and/or Services;
8.1.4 take all such steps as may be necessary to ensure and preserve the health and safety of Rose, its employees, and agents and without prejudice to the generality of the foregoing ensure that the Delivery Location (and such other site it is requested Rose attend for the supply of the Goods and or Services) is compliant with all relevant health and safety laws and regulations and ensure that it has the correct insurance in place and provide copies to Rose upon Rose’s request;
8.1.5 promptly provide Rose with such information that it reasonably requires;
8.1.6 promptly provide Rose with such health and safety information that may apply to the Delivery Location (and any other site it is requested to attend for the supply of the Goods and or Services) and the supply of the Goods and or Services;
8.1.7 at time(s) notified by Rose provide such access for Rose to the Delivery Location as Rose may reasonably require for the supply of the Goods and or Services and inspections prior to such supply;
8.1.8 take such steps as Rose may reasonably require to ensure that the Delivery Location, are suitable (in the opinion of Rose) for the supply of the Goods and or Services within the time specified by Rose;
8.1.9 be responsible for the security of the Delivery Location and its other goods, equipment, items or premises;
8.1.10 obtained the relevant permissions and approvals that may be required from time to time from Local Authorities or Planning Councils;
8.1.11 obtain the relevant permissions and approvals from any neighbouring properties to which access may be required by Rose. Any such permission or approval will be deemed to have been granted prior to Rose commencing any relevant works;
8.1.12 ensure that any articles and possessions that may be damaged during the works under the Contract are removed prior to the works beginning. Damage includes an act by Rose or one of its employees or agents consistent to what would be expected in the Contract or an act of force majeure.
8.2 With regards to its rights under clause 8.1, Rose cannot accept liability for any consequential loss arising from the failure by the Customer to take precautions in relation any of Rose demands as set out above.
Rose will not be liable if delayed in or prevented from performing any of its obligations due to Force Majeure, provided that it uses reasonable endeavours to minimise the effects of that event.
All drawings, designs, data, information, reports and other documents produced or provided by Rose in connection with the Goods and Services will remain the property of Rose and shall not be copied, reproduced or shared without the prior written consent of Rose.
11.1 Rose does not limit or exclude its liability:
11.1.1 for death or personal injury caused by its (or its employees) negligence; or
11.1.2 each of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982;
11.1.3 for defective products under the Consumer Protection Act 1987; or
11.1.4 for fraud or fraudulent misrepresentation.
11.2 Subject to clause 11.1 Rose total aggregate liability in respect of all claims, losses or damages, whether arising from contract, tort (including negligence) or otherwise under or in connection with the Contract shall in no event exceed the amount of Rose’s charges for the Goods and Services under the Contract in connection with which such claim is made.
11.3 Subject to clause 11.1 Rose shall not be liable for:-
11.3.1 any indirect, special or consequential loss or damage, or
11.3.2 any loss of profit, turnover, business opportunity or damage to goodwill (whether direct or indirect), howsoever arising.
11.4 Without prejudice to the generality of clauses 11.2 and 11.3 the Customer shall indemnify and hold harmless Rose from and against all claims, losses, costs, expenses, liabilities, damages, demands, proceedings, legal costs (on a full indemnity basis) and judgments which Rose or the Customer suffers or incurs by reason of or arising out of:-
12.1 The Contract may be terminated forthwith at any time by Rose on written notice to the Customer (without Rose incurring any liability to the Customer) if:
12.1.1 the Customer commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or is not remedied within 14 days of written notice to do so;
12.1.5 a receiver or administrative receiver may be or is appointed in relation to the Customer or any of its assets or the Customer becomes subject to a bankruptcy petition;
12.2 Without prejudice to its rights under clause 12.1 Rose may terminate or suspend any Contract with the Customer at any time by giving written notice to the Customer if in the opinion of Rose there is a risk to health and safety at the Delivery Location (or any other site that Rose employees, subcontractors or agents attend in the course of the supply of the Goods and or Services).
12.3 Without prejudice to its rights under clause 12.1 and 12.2 Rose may suspend or terminate Contracts with the Customer if there is change or alteration to the Delivery Location or other goods, equipment, items or premises which in Rose reasonable opinion affect the supply of the Goods and or Services.
12.4 On termination of the Contract for any reason:
Unless stated otherwise, time is not of the essence of any date or period specified in these Conditions.
13.2 NO SET-OFF
All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless the Customer is compelled by law to deduct or withhold any such amounts, in which case it will pay to Rose such additional amount as will ensure that Rose is paid the full amount it would have received but for such deduction or withholding.
The parties are independent businesses and not principal and agent, partners, or employer and employee.
If any part of these Conditions is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Conditions and the remaining provisions of the Conditions and the Contract will otherwise remain in full force.
Notices under this Agreement will be in writing and sent to the persons and addresses (including but not limited to postal addresses and email addresses) set out in the Order. They may be given, and will be deemed received:
a. by first-class post: two Business Days after posting;
b. by hand: on delivery;
c. by fax: one Business Day after the fax transmission was sent; or
d. by email: one Business Day after the email was sent.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
13.7 RIGHTS OF THIRD PARTIES
This Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The terms of the Conditions prevail over those of the Order.
13.9 ENTIRE AGREEMENT
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
13.10SUCCESSION AND ASSIGNMENT
13.11 GOVERNING LAW AND JURISIDICTION
This Contract will be governed by the laws of England and disputes will be submitted to the exclusive jurisdiction of the courts of England.