The Buyer’s attention is drawn in particular to the provisions of clause 9.
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Buyer” the person or firm who purchases the Goods from the Supplier.
“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
“Contract” the contract between the Supplier and the Buyer from the sale and purchase of the Goods in accordance with these Conditions.
“Force Majeure Event” an event or circumstance beyond a party’s reasonable control.
“Goods” the goods (or any part of them) set out in the Order.
“Order” the Buyer’s order for the Goods, whether made orally or as set out in the Buyer’s purchase order form, the Buyer’s written acceptance of the Supplier’s quotation, or otherwise in writing as the case may be.
“Specification” any specification of the Goods.
“Supplier” Newlay Ashphalt Limited registered in England and Wales with company number 08629077 and whose registered office is situate at Elite House, Spellowgate, Driffield, YO25 5UP.
1.2.1 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.3 a reference to writing or written includes emails.
2 Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Each Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of an Order and are complete and accurate.
2.3 An Order shall only be deemed to be accepted when either the Supplier issues a written acceptance of the Order or it begins to take steps to fulfil an Order, at which point the Contract shall come into existence.
2.4 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.5 Any samples, descriptive matter or advertising produced by the Supplier and any descriptions contained in the Supplier’s sales literature are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for the period of time stated within it.
3.1 The Goods are described by the Supplier on its website or otherwise in writing from time to time.
3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods and any other information that the Supplier believes to be pertinent to the Goods or their supply by it.
4.2 The Goods shall be delivered either by:
4.2.1 the Supplier transporting them to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after the Supplier notifies the Buyer that the Goods are ready, or
4.2.2 the Buyer collecting the Goods from the Supplier’s premises at Thornhill Works, Calder Road, Dewsbury, WF12 9HY or such other location as may be advised by the Supplier prior to delivery (“Delivery Location”) within 1 hour of either the time specified in the Order, or the Supplier notifying the Buyer that the Goods are ready for collection,
as determined in the Order or between the parties prior to delivery of the Goods.
4.3 Delivery is completed on the completion of unloading or loading (as appropriate to the method of delivery chosen by the Buyer) of the Goods at the Delivery Location.
4.4 In circumstances where the Supplier effects delivery by its own transport (or that of its agent) the Buyer undertakes to ensure that there is sufficient space at the Delivery Location to allow for the safe, secure, and efficient delivery of the Goods.
4.5 Any dates and times quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Supplier with adequate facilities (including without limitation those in clause 4.4) delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Supplier with adequate delivery instructions (including without limitation those in clause 4.4) or any other instructions that are relevant to the supply of the Goods.
4.7 The nature of the Goods is such that they have a very short shelf life post production, therefore if the Buyer fails to take or accept delivery of the Goods within 1 hour of the Supplier notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
4.7.1 the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting its reasonable costs charge the Buyer for any shortfall below the price of the Goods; or, in circumstances where this is unachievable,
4.7.2 delivery of the Goods shall be deemed to have been completed 1 hour after either (a) the time on which the Supplier notified the Buyer that the Goods were ready, or (b) the failure of the Buyer to accept delivery of the Goods. In such circumstances the price for the Goods will remain due in accordance with clause 7.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
5.1 The Supplier warrants that on delivery the Goods shall:
5.1.1 conform in all material respects with their description and the Specification; and
5.1.2 be free from material defects in material and workmanship; and
5.1.3 conform to British and European standards; and
5.1.4 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 Subject to clause 5.4, if:
5.2.1 the Buyer gives notice in writing to the Supplier that some or all of the Goods do not comply with the warranty set out in clause 5.1 within the following timescales:
(a) in respect of defects that should be apparent on delivery, at the time that the Goods are delivered, or
(b) where a defect is not apparent on delivery within 5 Business Days of the time when such a defect should have been determined;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods and (where appropriate) provided with those facilities reasonably expected and required by it to make such an examination; and
5.2.3 the Buyer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business, at the Buyer’s cost,
the Supplier shall, at its option, replace the defective Goods, or refund the price of the defective Goods in full. In addition the Supplier shall be responsible for the reasonable costs of actually removing any defective goods from the surface to which they are applied.
5.3 In circumstances where Goods have been returned to the Supplier as defective, and the examination of such Goods by the Supplier determines that they are not defective, the price of those Goods shall remain due and payable (the Buyer acknowledges that any returned Goods will, due to their short shelf life, be unable to be used for their purpose and are returned for testing purposes only).
5.4 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.4.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.4.2 the Buyer makes any use of the Goods after receiving notice from the Supplier that the Goods are not to be used;
5.4.3 the Buyer is aware, or ought to be aware, that the Goods do not comply with the Specification or any applicable British or European Standard;
5.4.4 the defect arises because the Buyer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.4.5 the Buyer alters such Goods without the written consent of the Supplier;
5.4.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.4.7 the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 Except as provided in this clause 5, the Supplier shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6 Title and risk
6.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
6.2 Title to the Goods shall not pass to the Buyer until the earlier of:
6.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Buyer resells or uses the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
6.3.1 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Supplier’s property;
6.3.2 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.3 notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.1; and
6.3.4 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to clause 6.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Buyer resells the Goods before that time:
6.4.1 it does so as principal and not as the Supplier’s agent; and
6.4.2 title to the Goods shall pass from the Supplier to the Buyer immediately before the time at which resale by the Buyer occurs.
6.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy the Supplier may have:
6.5.1 the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2 the Supplier may at any time:
(a) require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
7 Price and payment
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s price list communicated to the Buyer by the Supplier whether orally or in writing before the date of delivery.
7.2 The price of the Goods excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice
7.3 The Buyer has the option of determining whether to collect the Goods or rely upon the Supplier to deliver them; the costs and expenses attributable to the delivery of the Goods shall be incorporated into the price as applicable to the terms of the Order.
7.4 The Supplier may invoice the Buyer for the Goods on or at any time after the completion of delivery.
7.5 The Buyer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
7.6 If the Buyer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 1.5% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
7.7 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
8.1 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Buyer if:
8.1.1 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
8.1.2 the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction];
8.1.3 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
8.1.4 the Buyer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Supplier if the Buyer becomes subject to any of the events listed in clause 8.1.1 to clause 8.1.4, or the Supplier reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
8.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
8.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9 Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
9.1.3 defective products under the Consumer Protection Act 1987.
9.2 Subject to clause 9.1:
9.2.1 the Supplier shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 the Supplier’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £20,000.
10 Force majeure
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event.
11.1 Assignment and other dealings.
11.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2 Entire agreement.
This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default
11.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.6.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing.
11.6.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.6.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
11.6.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.7 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
11.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
11.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.