1 BASIS of SALE
1.1 Natural Stone Consulting (“we” or “us”) shall sell and the Buyer (“you”) shall purchase the goods specified on the order acknowledgement (“the Goods”) to which these terms are annexed (“the Order Acknowledgement”) in accordance with these terms which shall govern the contract for the purchase of the Goods (“the Contract”) to the exclusion of any other terms and conditions, including those which you may purport to imply under any purchase order or other document.
1.2 The Order Acknowledgement or payment of deposit together with these terms constitutes an offer by you to buy the Goods. No Contract shall come into effect until the earlier of a) our notifying you that the Goods are ready to be delivered or collected and b) our issuing you with a written acceptance of the order.
1.3 No variation to these terms shall be binding unless agreed in writing by your and our authorised representatives.
1.4 No order which has been accepted by us may be cancelled by you except with our written agreement.
1.5 You acknowledge that we will not order the Goods from our own supplier until you have paid a deposit as set out in clause 2.3. If at that point we are unable to source the Goods we may cancel this contract and return to you in full any sums you have paid us and the limitation set out in clause 6.7 shall particularly apply.
2 PRICE and PAYMENT
2.1 If you are not a Consumer, then we reserve the right, by giving notice to you any time before delivery, to increase the price of the Goods to reflect any increase in the cost to us which is due to any factor beyond our control (including without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, increase in costs of raw materials on delivery, any change in delivery rates, instructions, quantities or a change to the specification of the Goods which you request).
2.2 The price is exclusive of any applicable VAT which you shall be additionally liable to pay to us.
2.3 Unless otherwise agreed in writing you shall pay 50% of the price (plus VAT thereon) by way of advance payment upon placing the order for the Goods and the balance prior to delivery of the Goods. We will invoice you accordingly. IF we agree that you may pay the balance on delivery or collection we shall be entitled to invoice you for the price once we have notified you that the goods are ready for collection or (as the case may be) once we have attempted to deliver at the time agreed.
2.4 You shall pay the price of the Goods within 7 days of receipt of an invoice delivered in accordance with clause 2.3 and we shall be entitled to recover the price, notwithstanding that delivery may not have taken place and ownership the Goods has not passed to you. The time of payment of the price shall be of the essence of the Contract.
2.5 If you fail to make payment on the due date then, without prejudice to any other right or remedy available to us, we shall be entitled to cancel the Contract or suspend any further deliveries to you. In addition if you are not a Consumer we may charge you interest (both before and after any judgment) on the amount unpaid, at the rate of 8% per annum above the base rate from time to time of Barclays Bank plc until payment is made in full (a part of a month being treated as a full month for the purpose of calculating interest).
3.1 On accepting your order we will give you an estimated delivery date but at that stage it is indicative only because it is beyond our control, so you must not rely on it, and it is not of the essence. Once the Goods are ready warehouse we will arrange a delivery date with you (or notify you if you are collecting the Goods).
3.2 We reserve the right to deliver up to two per cent more or less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
3.3 If we fail to deliver the Goods for any reason (other than for any cause beyond our reasonable control and other than for your fault), and we are accordingly liable to you, our liability shall be limited to the excess (if any) of the cost to you (in the cheapest market reasonably available) of similar goods to replace those not delivered over the price of the Goods.
3.4 If we are not able to deliver all the Goods at one time, we may deliver your order in instalments. We will not charge you extra delivery costs for this. However, if you ask us to deliver the order in instalments, we may charge you extra delivery costs. Each instalment shall constitute a separate Contract. If we are late delivering an instalment or one instalment is faulty, that will not entitle you to cancel any other instalment.
3.5 You may notify us that you wish to collect the Goods from us yourself. If so you are responsible for bringing appropriate labour to effect collection yourself and we will not have any responsibility for this.
3.6 If you fail to take delivery of or collect the Goods when arranged, or fail to give us adequate delivery instructions then, without prejudice to any other right or remedy available to us, we may a) store the Goods until actual delivery or collection and charge you for the reasonable costs (including insurance) of storage and b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to you for the excess over the price under the Contract or charge you for any shortfall below the price under the Contract. When giving delivery instructions you must consider the width and gradient of the road as well as whether access to the address is firm, solid ground (ie. is the access a tarmac or gravel surface?) – this will determine the type of vehicle that can be used for delivery and therefore the cost of delivery. Smaller vehicles with a hiab/crane will need to be used for deliveries with restricted access. Delivery of goods does not include carrying products into premises or up or down any stairs. Deliveries will be arranged for a specified date between 8.30am and 5.30pm. While we will endeavour to deliver on this specified date, it cannot be guaranteed due to certain circumstances beyond our control.
3.7 You are not entitled to return any Products to us save as set out herein and under the law, but if we agree that you may do so then all Products returned must be in the same condition they were in when we delivered them or made them available for you to collect, and must be properly packaged.
4 RISK and PROPERTY
4.1 Risk of damage to or loss of the Goods shall pass to you a) in the case of Goods to be collected at the time when we notify you that the Goods are available for collection and b) in the case of Goods to be delivered at the time of delivery or, if you wrongfully fail to take delivery, once we have attempted to deliver the Goods at the arranged time. You shall be responsible for unloading the Goods at the point of delivery at your own expense and risk.
4.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these terms, ownership of the Goods shall not pass to you until we have received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by us to you for which payment is then due.
4.3 If you are not a Consumer then, until such time as ownership if the Goods passes to you, you must hold the Goods as our fiduciary agent and bailee, and must keep the Goods separate from your own goods and third parties’ goods, and properly stored, protected and insured and identified as our property. Until that time you shall be entitled to resell or use the Goods in the ordinary course of your business, but shall account to us for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any of your own or third parties’ moneys or property and, in the case of tangible proceeds, properly stored, protected and insured.
4.4 If you are not a Consumer, then until such time as ownership of the Goods passes to you (and provided the Goods are still in existence and have not been resold), we shall be entitled at any time to require you to deliver up the Goods to us and, if you fail to do so forthwith, to enter upon your premises or any third party’s premises where the Goods are stored and repossess the Goods.
5.1 We warrant to you that the Goods are of satisfactory quality and reasonably fit for a) any purposes for which products of the kind are commonly supplied, and b) any purpose you made known to us before entering the Contract.
5.2 Subject as expressly provided in this Contract, and unless you are a Consumer, all warranties, terms or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Where you are a Consumer transaction your legal rights are not affected by this Contract.
6. LIABILITY – PLEASE READ THIS CLAUSE IN PARTICULAR AS IT LIMITS OUR LIABILITY TO YOU
6.1 You acknowledge that stone is a natural product in which variations in colour, marking, size and thickness should be expected.
6.2 All samples, drawings, specifications and illustrations given by us and issued or published are intended only to give an approximate description of the Goods. Products will vary in colour and marking and this is not a sale by sample. Certain natural stones contain fissures and vents as part of their natural feature. For this reason we do not give any express or implied warranty that the Goods will correspond in every respect with any description, photograph or sample provided.
6.3 Your use of the Goods shall be exclusively at your risk.
6.4 Where we specify the size and thickness of the Goods, a tolerance of plus or minus 3 millimetres shall be deemed to have been incorporated into any description supplied.
6.5 Where you notify us of a valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification, we shall be entitled to repair and/or replace the Goods (or relevant part of the Goods) free of charge or, at our option, to refund to you the price of the Goods (or a proportionate part thereof), but we shall have no further liability to you.
6.6 These terms do not limit liability for any of the following: a) death or personal injury caused by either party’s negligence, b) fraud or fraudulent misrepresentation, c) anything else which cannot be excluded by law.
6.7 Subject to clause 6.6, our liability (whether by reason of any representation, implied warranty, duty at common law, or term of this Contract) for any indirect or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for any indirect or consequential compensation whatsoever (and whether caused by our negligence or that of our agents or employees) which arises out of or in connection with the supply of the Goods (or shortage thereof) or your use or resale of them, except as expressly provided elsewhere in this Contract, shall be limited to £1.
6.8 Force majeure. We shall not be liable to you or be deemed to be in breach of this Contract by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the Goods, if the delay or failure was due to anything beyond our reasonable control. The following is a non-exhaustive list of events to be regarded as beyond our reasonable control: unavailability of materials from our suppliers, act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving our employees of those of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.
6.9 You are solely responsible for ascertaining the quantities you require. Estimates of quantities required are given without any obligation on our part. You must check all templates comply with your requirements.
6.10 Natural products should be professionally installed and may require sealants or chemical treatment. Sealants or treatments supplied by us must be applied in accordance with manufacturers’ instructions. Unless we install the Goods for you pursuant to clause 9, we are not liable for any damage to the Goods arising out of faulty installation, even if we recommended the installer to you.
6.11 We will provide you with guidance on the proper care and treatment of the Goods. We shall not be liable for any damage you may do to the Goods through disregarding this guidance.
6.12 If you are not a Consumer: if the Goods are broken, insufficient, or defective or do not correspond with their specification (whether or not you refuse delivery) you must notify us within 5 days of delivery and before the product has been installed. If delivery is not refused, and you do not notify us within 5 days, you shall not be entitled to reject the Goods and we shall have no liability for such defect or failure. You shall be bound to pay the price and the Goods shall be deemed to have been delivered in accordance with the Contract.
6.13 If you are a Consumer: if the Goods are broken, insufficient, or defective or do not correspond with their specification (whether or not you refuse delivery) you must notify us within 5 days of delivery and before the product has been installed. Once you have begun to install the Goods it can be difficult to tell whether any damage was caused by us, or through installation. For this reason you must inspect the Goods carefully before installation takes place. Once you have begun to install the Goods we are entitled to assume that the relevant Goods are not defective in any way and you may not then return them to us.
6.14 You will not have any right to cancel for the supply of any Goods which are bespoke or adapted for use by you specifically.
7 INSOLVENCY of the BUYER
7.1 If you make any voluntary arrangement with your creditors or become subject to an administration order or bankrupt or go into liquidation or an encumbrancer takes possession, or a receiver is appointed, of any of your property or assets, or you cease or threaten to cease, to carry on business or we reasonably believe that any of the events mentioned above is about to happen to you and we notify you accordingly then, without prejudice to any other right or remedy available to us, we shall be entitled to cancel this Contract or suspend any further deliveries under this Contract without any liability to you. If the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
8.1 You may not assign the Contract without our written consent.
8.2 Any notice required or permitted to be given by either of us to the other under these terms shall be in writing and sent to the relevant party at the address set out on the Order Acknowledgement.
8.3 No waiver by us of any breach of the Contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.
8.4 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and the remainder of the provision in question shall not be affected thereby.
8.5 The Contract will be governed by the laws of England and the parties submit to the jurisdiction of the English Courts.
8.6 For the purposes of these terms, “Consumer” means a natural person who is acting for purposes outside his or her trade, business or profession.