Terms & Conditions
(i) In these Conditions:
"Buyer" means the person whose order for the Goods is accepted by the Seller.
"Conditions" means these standard terms and conditions of sale and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
"Contract" means the contract for the purchase and sale of the Goods.
"Delivery" means the actual or deemed delivery of the Goods in accordance with Clause 6.
"Delivery Address" means the place where the Goods are to be delivered as specified in the Order.
"Director" means a main board director of the Seller.
"Goods" means the goods (including any instalment of the goods) which the Seller is to supply in accordance with these Conditions.
"Order Acknowledgement" means the acceptance in writing by the Seller in response to the Buyer's order, to sell the Goods in accordance with the Seller's quotation.
"Seller" means ACANTHUS CAST STONE of Wimsey way, Somercotes, Derbyshire, DE55 4LS.
(ii) Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2. BASIS OF THE SALE
(i) The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written order of the Buyer which is accepted by the Seller by way of the Order Acknowledgement, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
(ii) No variation to these Conditions shall be binding unless agreed in writing by a Director of the Seller.
(iii) The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by a Director of the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
(iv) Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
(v) Any typographical or clerical, errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
(i) No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by Acanthus Cast Stone.
(ii) The quantity, quality and description of and any specification for the Goods shall be those set out in the Order Acknowledgement.
4. PRICE OF GOODS
(i) The Price of the Goods shall be the price quoted by the Seller and confirmed in the Order Acknowledgement.
(ii) The Seller reserves the right, by giving notice to the Buyer at any time before Delivery to increase the Price of the Goods to reflect any increase in the cost to the Seller due to any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
(iii) Except as otherwise stated in the Order Acknowledgement all prices shall be ex-works the Seller and the Buyer shall be liable to pay the Seller's charges for any transport, packaging and insurance.
(iv) The Price is exclusive of any applicable value added tax and other taxes including but not limited to import duties which the Buyer shall be additionally liable to pay for.
5. TERMS OF PAYMENT
(i) Payment of the Price shall be due and payable on the date of issue of the Order Acknowledgement unless otherwise agreed in writing by the parties and time of payment of the Price shall be of the essence of the Contract.
(ii) If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
(a) cancel the contract or suspend any further deliveries to the Buyer;
(b) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
(c) charge interest to the Buyer at the rate of 6% per annum above the base rate from time to time of Barclays Bank PLC on the unpaid balance (such interest to accrue on a day to day basis from the due date for payment until receipt by the Seller of the full amount whether before or after any judgement); and
(d) the Buyer shall indemnify the Seller against all costs and expenses (including any legal costs and expenses on a full indemnity basis) incurred or sustained by the Seller in recovering sums due or in exercising its rights pursuant to Clause 5.
6. RISK AND PROPERTY
(i) Risk of damage to or loss of the Goods shall pass to the Buyer upon Delivery.
(ii) Notwithstanding Delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
(iii) Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller 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 moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
(iv) Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are situated and repossess the Goods.
The erection and installation of the Goods is the Buyer's sole responsibility.
8. INSOLVENCY OF BUYER
(i) This Clause applies if:
(a) the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
(b) an encumbrancer takes possession, or an administrative receiver or administrator is appointed, of any of the property or assets of the Buyer; or
(c) the Buyer ceases, or threatens to cease, to carry on business or suffers any action in consequence of debt; or
(d) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
(ii) If this Clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and 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.
Any moulds created or used by the Seller to make the Goods for a contract shall remain the property of the Seller
10. INTELLECTUAL PROPERTY
All intellectual property rights in the moulds and Goods shall vest in the Seller absolutely and the Buyer shall at the Seller's expense execute any documents or do any acts necessary to give effect to the vesting of such rights in the Seller.
(i) No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
(ii) If any provision of these Conditions is held by a 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 provisions in question shall not be affected thereby.
(iii) The Contract shall be governed by the laws of England and any dispute arising out of or in connection with it shall be determined by the non-exclusive jurisdiction of the English courts.