Terms & Conditions of Sale
These Conditions of Sale impose obligations on Purchasers to notify Marley Eternit Limited (“the Company”) of certain matters within the time limits stated and they limit the Liability of the Company. Reference to “Group Companies” shall include all Marley "Group Companies" as defined by the Companies Act 2006, Part 15 and Etex S.A. “Group Companies” as similarly defined.
1. Creation of Contract
A quotation by the Company shall not constitute an offer and no contract shall be taken as formed except by the Purchaser's order being accepted in writing by the Company or by collection or delivery of the Goods.
2. Conditions of Trading
(a) The ordering of goods by the Purchaser or the accepting of delivery or the collection of the Goods by the Purchaser shall be deemed to be unconditional acceptance by the Purchaser of these Conditions and its acknowledgement that they supersede, override and exclude:-
(i) all previous negotiations, representations or agreements between the parties
(ii) any other terms and conditions in any document or other communication used by the Company or the Purchaser
(b) No variation of or addition to these Conditions shall form part of any contract unless specifically accepted by the Company in writing. Any purported addition or variation shall be treated as a separate order at the time it is made and priced accordingly.
(c) The construction validity and performance of all contracts shall be governed by the laws of England and any claim or dispute arising therefrom shall be subject to the nonexclusive jurisdiction of the English Courts.
(d) The Company reserves the right to make any changes in the specification of the Goods, which are required to conform with any applicable statutory or EC requirements or where the Goods are to be supplied to the Company’s specification which do not materially affect the quality or performance
(e) 24 hours notice of cancellation of an order placed by the purchaser is required to be given to the Company. Failure to provide such notice before the scheduled delivery date will entitle the Company to charge the purchaser 25% of the cancelled order value. Persistent cancellation of placed orders by the purchaser, even with 24 hours notice, will also entitle the Company to charge 25% of the cancelled order value.
(f) No waiver by the Company of any breach of the Contract by the Purchaser shall be considered as a waiver of any subsequent breach of the same or any other provisions.
(a) Unless otherwise expressly stated in writing by the Company orders are accepted on the basis that the price stated is the price of Goods (before deduction of any discounts) for delivery or collection in accordance with the contract and sold subject to these Conditions. The Company may at any time prior to the Goods leaving the Company's premises increase the stated price to reflect any increase in costs to the Company which is due to any factor beyond the control of the Company such as without limitation, the foreign exchange fluctuation increase in the cost of labour, materials or other costs of manufacture any change in delivery date, quantities or specifications of the Goods which are requested by the Purchaser or any delay caused by any instruction of the Purchaser or failure of the Purchaser to give the Company adequate information or instructions. Such revised price shall be binding on the Purchaser. All prices are exclusive of any Value Added Tax which shall be payable in addition by the Purchaser.
(b) The Company shall notify the Customer in writing not less than 14 calendar days prior to any planned increase in the price of the Goods (‘the Price Review Notice’) and the date that such notice changes shall take effect (‘Price Review Date’).Where an order for Goods is accepted after the date of the Price Review Notice, the price of the Goods shall be:
i) the price stated on the order, where the Goods are delivered or deemed delivered prior to the Price Review Date.
ii) the price stated in the Price Review Notice, where the Goods are delivered or deemed delivered on or any time after the Price Review Date.
(a) Unless otherwise agreed in writing invoices shall be raised at any time on or after delivery and shall be due and payable on the last working day of the month following the month in which the Goods were delivered or collected. The Purchaser will not be considered to have paid any amount tendered by cheque unless and until it has been credited to the Company's bank account.
(b) If the Purchaser shall fail to make payment in full in accordance with sub-paragraph (a) of this Condition then (without prejudice to any other rights of the Company and in addition to the loss of any discount) the Company shall be entitled to demand immediate payment of all amounts owing whereas they are overdue or not. Interest and costs shall accrue to overdue payments in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Regulations 2002 or any subsequent amendments thereof. Such interest and costs shall be payable after as well as before any judgment.
(c) If the Purchaser shall fail to make payment in accordance with sub-paragraph 4(a) of this Condition or shall fail to make payment in full for any goods or services to any other Group Company in accordance with the contractual terms applying thereto then the Company shall be entitled to:-
(i) suspend without incurring any liability all or any other deliveries to be made under that or any other contract with the Purchaser. In such event the Purchaser shall not in any respect be released from its obligations to the Company under that or any such contract; or
(ii) terminate the relevant contract or any other contract with the Purchaser in accordance with Condition 12 below and to claim damages from the Purchaser.
(d) The Purchaser shall not set off against the price amounts due from the Company under this Contract or otherwise.
(e) Where carriage, packing or other charges are stated separately from the price they will nevertheless be payable by the Purchaser at the same time as if they formed part of the price and shall be treated as such. The Company shall be entitled to sue for the price of Goods and such other charges whether or not title in such Goods shall have passed to the Purchaser in accordance with Condition 7 below.
(f) Time for payment is of the essence of the contract.
(g) Notwithstanding the foregoing the Company reserves the right to require payment of the price by way of cleared funds before delivery of any Goods or at any time thereafter.
5. Deliveries collections and liability for delayed delivery or failure to supply
(a)Whilst the Company will use all reasonable endeavours to keep to any stated delivery or collection dates or times of the day it accepts no liability whatsoever for any damage or loss (including any consequential loss) resulting from delayed delivery or availability for collection unless:
(i) a delivery or collection date or schedule has been agreed in writing; and
(ii) the Company has failed for at least 21 days after the agreed date to make a delivery or make the Goods available for collection; and
(iii) the Purchaser has then given the Company at least 7 days notice in writing of its intention to rescind the Contract or bring a claim and at the end of the period given, the Goods have not been delivered or made available for collection.
(b) In the event that a valid claim is notified to the Company in accordance with Condition 5a the Company shall under no circumstances whatsoever have any liability to pay to a Purchaser a sum greater than the price of the Goods in respect of which a failure to deliver or make available for collection is alleged.
(c) On notification to the Purchaser that the Goods are ready for despatch the Purchaser shall accept immediate delivery or in the case of collection from the Company's premises shall arrange for collection of the Goods failing which the Company may:
(i) either effect delivery by whatever means it thinks most appropriate or arrange storage at the Purchaser’s risk and expense pending delivery; and
(ii) after 14 days notice to the Purchaser requiring it to take delivery at any time re-sell or otherwise dispose of the Goods or part of them without prejudice to any other rights the Company may have against the Purchaser for breach of contract or otherwise.
(d) If the Goods are not delivered on the expected date the Purchaser shall give written notice to the Company within 48 hours.
(e) In cases where the Company concludes the contract of carriage and or arranges for the insurance of the Goods in transit, the Company shall be deemed to be acting solely as agent of the Purchaser and sub-sections (2) and (3) of Section 32 of the Sale of Goods Act 1979 shall not be applicable.
(f)Where the Goods are to be delivered by instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these conditions or any claims by the Purchaser in respect of any one or more instalments shall not entitle the Purchaser to treat the Contract as a whole as repudiated.
6. Delivery and Risk
(a) Where the price quoted and accepted is for delivery at the premises of the Purchaser or a third party such delivery shall be made on hard roads to a hard and safe draw-in site suitable for unloading during normal working hours on normal working days and it shall be the responsibility of the Purchaser to ensure that delivery can be effected in this manner.
(b) If it has been agreed that the Company will deliver the Goods at the premises of the Purchaser or a third party the Purchaser shall provide good firm level and cleared ground on which to stack the Goods. It shall be the responsibility of the Purchaser to ensure that the Goods are properly and safely stacked, stored and protected. All Goods supplied to the Purchaser hereunder shall be stored and fixed in accordance with the manufacturer’s instructions set out in the latest written recommendations or the Company’s technical literature and the Company shall not be under any liability for any loss or damage which may arise as a result of the failure to adhere to such recommendations in all respects.
(c) If off-loading is to be effected by the use of a vehicle mounted crane then it shall be the responsibility of the Company to arrange such off-loading and risk shall pass once the Goods have been off-loaded. In all other cases it shall be the responsibility of the Purchaser to off-load the Goods at its expense and risk shall pass once the delivery vehicle arrives at the premises of the Purchaser or a third party as appropriate.
(d)Where the price quoted and accepted is for collection of the Goods from the Company's premises it shall be the Purchaser's responsibility to arrange collection of the Goods in suitable and safe vehicles at times agreed with the Company. Risk shall pass when the Goods are loaded on to the collection vehicle provided by the Purchaser or its agent and entry of the Purchaser's vehicles onto the Company's premises shall be at the Purchaser's risk.
(e) The Purchaser shall keep the Goods fully insured against all risks normally insured against at least throughout the period between the risk therein passing to the Purchaser and the title therein ceasing to remain with the Company.
(f) The Purchaser shall fully indemnify the Company in respect of any claims, liabilities damages, costs and expenses made against or incurred by the Company by reason of damage caused to person or property and arising out of a failure by the Purchaser to comply with the provisions of this Condition.
7. Title to Goods
(a) Notwithstanding delivery or collection of the Goods or of any documents relating to them the Company will remain the sole and absolute owner of each item of the Goods. Title shall not pass until payment in full has been made of:
(i) the price for the Goods and any other sums payable in respect of the Goods including interest payable hereunder; and
(ii) any sums payable (whether due or not) for other goods or services previously or subsequently sold by the Company or any Group Company to the Purchaser and any other sums payable in respect of these other goods including interest.
(b) For the purpose of these Conditions all Goods of the same description purchased by the Purchaser from the Company and subsequently used or sold by the Purchaser shall be deemed to have been used or sold on a "first in first out" basis. The Purchaser shall unless otherwise agreed by the Company in writing ensure that all goods which are in the possession or control of the Purchaser, and the property which remains with the Company, are stored separately and labelled so that they may be readily identified.
(c) The Purchaser may sell any item of the Goods in the ordinary course of its business prior to the Company receiving payment in full of such item and in such event the Purchaser shall hold on trust for the Company and shall account to the Company for the proceeds of sale of such item. The right to sell the Goods under this Condition 7c shall cease on the occurrence of any of the events set out in Condition 12.
(d) The Company shall be entitled by its employees or agents to enter upon or into any land buildings or vehicles where the Goods or part of them are situated to retake possession of them. Upon request the Purchaser shall notify the Company of the location of any Goods which are the Company's property. If the Goods have previously been laid or fixed then the Company may nevertheless retake possession of them but in so doing shall endeavour not to cause unnecessary damage.
8. Claims for Defective Goods, etc.
(a) Whether the Goods have been delivered by the Company or have been collected by the Purchaser, the Purchaser shall immediately after off-loading is completed (or at the earliest opportunity thereafter if there is no representative of the Purchaser available when the off-loading of the Goods is completed) examine the Goods to check that the correct quantity has been delivered and as far as is apparent that they have no apparent defects. If the Goods have been delivered by the Company the Purchaser will on request by the delivery driver sign a receipt slip. If the Purchaser is not satisfied with the Goods following their examination the Purchaser shall:
(i) notify the Company that it refuses to accept the Goods and indicate the nature of its dissatisfaction: such notification must in every case be within 24 hours of delivery or collection and confirmed in writing to the Company within 4 days thereof and
(ii) always give the Company an opportunity to inspect the Goods concerned in the condition and location in which they were off-loaded.
(b) The Company requires all claims to be made by the Purchaser to the Company in writing as soon as possible and
(i) Claims in respect of short delivery or in respect of defects which are apparent on examination must be made in any event within 28 days of delivery.
(ii) Claims in respect of defects which are not apparent on examination must be made in any event within 7 days of discovery.
(iii) Time for making all such claims is of the essence of the Contract and the Company's liability shall be limited as set out in Condition 9.
(c) The Purchaser shall not be entitled to reject the Goods or any part thereof by reason only of short delivery.
(d) Under no circumstances shall the Company be liable to the Purchaser for any claim arising out of:
(i) any description, samples, specification or other particulars relating to the Goods or their suitability for any particular purpose or for use under specific conditions unless agreed in writing by the parties or contained in the Company’s publications.
(ii) the Goods supplied not being in every way similar to examples of the Company's products previously supplied, for example because the manufacturing process used by the Company means there may be variations in colour and its intensity.
(iii) technical information, recommendations, statements or advice given by or on behalf of the Company relating to the methods of fixing or installing the Goods.
(iv) The Company’s employees or agents are not authorised to make any representations, or give any advice or recommendations, concerning any goods or services unless confirmed by the Company in writing.
9. Warranty and Indemnity and Limits on Claims
(a) All warranties and indemnities offered by the Company are only applicable to products sold within Great Britain.
(b) Subject to the conditions set out below the Company warrants that the Goods will correspond at the time of delivery
(i) with the description, specification and particulars of the Goods contained in the Company's publications valid at the date the Goods are ordered and upon which the Purchaser shows it relied and
(ii) with any additional description specification or particulars agreed in writing by the parties.
(c) The above warranty is given by the Company subject to it being under no liability:
(i) in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal conditions of weather, working or of use, failure to follow the Company's instructions (whether oral or in writing), or misuse of the Goods;
(ii) under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
(iii) in the event that the Goods suffer from colour or other minor variances or irregularities which habitually occur in products manufactured by the process used by the Company.
(d) Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. The Statutory Rights of Consumers are not affected by these Conditions.
(e) Any claim by the Purchaser which is based on the matters referred to in Conditions 8(a) or 8(b) shall be notified in the manner and within the time limits set out therein. If the Customer fails to comply with this Condition 9(e)
(i) the Customer shall not be entitled to reject the Goods (in the case of claims under Condition 8(a)); and
(ii) the Company shall have no liability; and
(iii) the Purchaser shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
In the event that a valid claim is notified to the Company in accordance with these Conditions, the Company shall deliver or make available for collection as appropriate replacement Goods free of charge or at the Company's sole discretion refund to the Purchaser the price of the Goods. Under no circumstances whatsoever shall the Company have any liability to a Purchaser in respect of any of the matters referred to in Condition 8 greater than that expressed in this sub-clause.
(f) In the case of any claim by the Purchaser which is based on any defect in the quality or condition of the Goods or their failure to correspond with their description specification or particulars, a representative number of the relevant batch of the Goods shall be taken in the presence of an authorised representative of the Company and shall be referred for appropriate testing to an expert to be mutually agreed upon, or failing such agreement to be nominated by the President for the time being of the Institute of Civil Engineers and the report of such an expert shall be final and binding on both parties. The expert's fee for performing such tests shall be paid by the Company in the event that a valid claim is established by the Purchaser but shall otherwise be paid by the Purchaser.
(g) Except as provided herein or in respect of death or personal injury caused by the Company's negligence, the Company shall not be liable to the Purchaser by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract or any advice or assistance given relating to the Goods or their handling installation use or disposal, for any direct or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for direct or consequential compensation whatsoever (and whether caused by negligence of the Company, its employees or agents or otherwise) which shall arise out of or in connection with the supply of the Goods or their use or resale by the Purchaser, except as expressly provided in these Conditions.
(h) The Purchaser shall indemnify the Company in respect of any claims, proceedings, liabilities, damages, costs and expenses of whatsoever nature made against or incurred by the Company and arising out of a failure by the Purchaser to observe the Company's instructions (whether oral or in writing) relating in any way whatsoever to the Goods.
10. Health and Safety at Work
The Purchaser shall observe the health and safety instructions issued from time to time by the Company (copies of which are available on request) and shall be solely responsible for and shall keep the Company indemnified against any claims, liability, damages, costs and expenses arising directly or indirectly from use of the Goods other than in accordance with such health and safety instructions.
11. Force Majeure
The Company shall not be liable for any loss or damage caused by non-performance or delay in the performance of any of its obligations to the Purchaser due to act of God, war, civil disturbance, government action, strike, lock out or trade dispute (whether involving its own employees or those of any other person), difficulties in obtaining materials, breakdown in machinery, fire or accident or any other causes whatsoever beyond the control of the Company. Should any such event occur the Company reserves the right to cancel or suspend the contract with the Purchaser without incurring any liability for any loss or damage thereby occasioned.
(a) The Company may by notice in writing to the Purchaser terminate any contract forthwith if:-
(i) the Purchaser shall commit any breach of any of the terms (including without limitation terms concerning the time for payment of the purchase price) of this or any other contract with the Company and on its part to be observed and performed;
(ii) the Purchaser compounds with or negotiates for any composition with its creditors generally;
(iii) being an individual the Purchaser shall die or have a receiving order made against him or commits an act of bankruptcy or enters into a voluntary arrangement; or
(iv) being a Company the Purchaser shall call any meeting of its creditors or have a Receiver or Administrator appointed or enter into any liquidation.
(b) In the event of any such termination the Company shall in addition to exercising its rights to repossession of the Goods under Condition 7 of these Conditions be entitled by notice in writing to the Purchaser to declare (and there shall forthwith become) immediately due and payable any amounts outstanding from the Purchaser to the Company under this or any other contract.
(c) The provisions of (a) and (b) above and the exercise by the Company of its rights thereunder are without prejudice to any other rights of the Company.