Terms and Conditions
1. Definitions
1.1 In these Conditions "the Company" means
Modular Clay Products and "the Customer" means the individual firm,
company or other party with whom the Company contracts.
2. Basis of Quotations and Orders
2.1 No order placed on the Company in pursuance
of any quotation or otherwise shall be binding on the Company
unless and until such order is acknowledged in writing by the
Company. Any contract made between the Company and the Customer
(hereinafter called "the Contract") shall be subject to these
Conditions and save as mentioned no representative or agent of the
Company has authority to agree any terms or make any representation
inconsistent with them or to enter into any Contract except on the
basis of them. Any such term of representation and any variation of
these Conditions will bind the Company only if confirmed in writing
and signed by a Director or Secretary of the Company. In entering
into the Contract the Customer acknowledges that it does not rely
on, and waives any claim for breach of, any such representations
which are not so confirmed.
2.2 The price quoted is fixed only where this
has been stated by the Company in writing together with the period
during which such price will remain fixed. In all other cases the
price charged shall be the price ruling at the date of delivery.
Quotations will lapse after 30 days of the date thereon.
2.3 Quotations are based on deliveries being in
full lorry loads and the purchase price will be subject to
surcharge where deliveries are in part loads.
2.4 Other than during the period when a fixed
price agreed as above shall apply, if at any time prior to delivery
there shall be an increase in the general ex-works price of the
class of materials included within the quotation or in the cost of
transport or any other service necessary for the completion of the
Contract, the Company shall be entitled to make a corresponding
adjustment to the quoted price.
2.5 Unless otherwise agreed in writing by a
Director or the Secretary of the Company these Conditions shall
override any terms and conditions stipulated or referred to by the
Customer in his order, pre-contract negotiations or otherwise if
the terms and conditions stated in the Customer's order are
inconsistent herewith or if they contain a provision either in
similar terms to this Condition or otherwise purporting to exclude
these Conditions the Company's acknowledgement of the Customer's
order shall constitute a counter-offer and the Customer shall be
deemed to have accepted these Conditions unless it notifies the
Company to the contrary within 5 days of receiving the Company's
acceptance of the order. Acceptance of any delivery shall
constitute confirmation of the ongoing acceptance of these
Conditions.
2.6 No part of the Contract may be cancelled by
the Customer except with the agreement in writing of the
Company.
3. Suitability
3.1 No condition is made or to be implied and
no warranty is given or to be implied that the type and/or
specification of the goods to be supplied under the Contract are
suitable for any particular purpose intended by the Customer or for
use under any specific conditions and the Customer must satisfy
itself that the type and/or specification of the product is
suitable for the particular purpose intended and for use under any
specific conditions notwithstanding that such purpose or condition
may be known or made known to the Company. The Company shall not be
under any liability for loss or damage resulting from advice or
representation given in good faith by the Company, its employees or
agents regarding the use, performance or suitability of its
products or their equivalent. This clause shall not limit the
statutory obligations of the Company.
3.2 Any sample provided to the Customer or any
description contained in the Company's catalogues, price lists, or
other promotional material is intended merely to present a general
indication of the Company's products and should be used for
guidance purposes only. All sales by the Company are made by
description and not by sample.
3.3 The Customer's attention is drawn to
unsuitable applications for the use of reclaimed bricks: in
locations subject to sever weather exposure; in environments or
positions of prolonged dampness eg below damp proof courses or in
copings or external pavements; in free standing walls and chimney
stacks without adequate protection; with raked out joints; in
rendered skins/walls when backed with insulation or other
impermeable medium. Reclaimed bricks and reclaimed stone products
will in general vary more in size, colour, texture, regularity of
shape and strength than new products. No such products are covered
by BSS.
4. Availability
Performance of the Contract by the Company at the quoted price
is subject to the availability of all materials, services and
labour required for the execution of the order and the Company
shall be under no liability for delay in the event of the
non-availability of any materials, service or labour. The Company
shall be entitled to make part deliveries of goods against an order
or contract and the Customer shall be bound to accept and make
payments against such part deliveries.
5. Product Development
The Company reserves the right to modify or withdraw from sale
any of its products without notice and without any liability on the
part of the Company.
6. Delivery
Unless otherwise agreed in writing by the Company:
6.1 Where delivery is to be made by the Company
or its agent, delivery of the goods shall be by the means most
convenient to the Company to the address or addresses specified by
the Customer and the Customer shall take delivery accordingly.
Should the Customer fail to accept delivery of the goods when
tendered, the Customer will pay the Company's reasonable storage
charges. Delivered prices and delivery charges are quoted on the
assumption that the Customer will provide safe and unrestricted
access to the site or delivery address on hard roads suitable for
heavy vehicles during reasonable business hours for the purpose of
off-loading and undertakes to ensure that there is an adequate
level stocking area for the purpose. The Customer undertakes to
reimburse the Company for any demurrage charges incurred as a
result of delays in unloading.
6.2 The Company shall not be responsible for
any variation in goods or deviation from agreed delivery schedules
or quantities made at the request of the Customer. Where delivery
is made in accordance with schedules supplied by the Customer, the
Customer undertakes to accept the goods in accordance with such
schedules.
6.3 Whilst the Company will endeavour to
deliver the goods by any date or within any period agreed upon,
such dates and periods are estimates only given in good faith and
the Company will not be liable for any of the consequences of
failure to deliver by the due date or within such a period. The
quoted delivery period shall be dependent on receipt of the
Customer's formal order, delivery schedules and final
specifications. Manufacture of non-standard materials or special
shapes will not commence until final specification and/or drawings
have been supplied to and agreed by the Company and any
modification by the Customer to design, specifications or
quantities may result in delay in delivery. The Company shall be
entitled to defer delivery until any monies due from the Customer
have been received. Thus the time of delivery or completion shall
not be of the essence, unless agreed in writing and signed by a
Director of the company. The Company shall not in any case be
liable for any loss or damage, or any consequential loss, arising
directly or indirectly from a delay in delivery.
7. Custody of Goods
7.1 Notwithstanding delivery of and the passing
of risk in the goods, the Customer shall hold the goods solely as
fiduciary agent and bailee for the Company and the goods shall
remain the property of the Company until such time as the Company
shall have received payment in full for the goods and for all other
goods agreed to be sold by the Company to the Customer for which
payment is then due. The Customer grants to the company, its
servants or agents, the right to enter upon any land or building in
which the goods may be situated to recover goods in respect of
which such title remains vested in the Company at any time
including (but not limited to) when the amount owed to the Company
by the Customer is in excess of the credit limit from time to time
imposed by the Company or where credit facilities have been varied
or withdrawn by the Company. The Company reserves the right to vary
such credit limits or withdraw credit facilities at any time upon
written notice to the Customer.
7.2 Where as part of his normal business the
Customer shall sell or use goods, title to which remains vested in
the Company, such part of the sale proceeds or otherwise (including
insurance proceeds) received or receivable by the Customer as
relates to the goods shall be held on trust for the Company in a
separate bank account which shall remain identifiable as money
belonging to the Company.
7.3 The Customer shall not be entitled to
pledge or in any way charge by way of security for any indebtedness
any of the goods which remain the property of the Company.
8. Force Majeure
Should the Company be delayed in or prevented from making
delivery of the goods due to war, local government or parliamentary
regulations, strikes, lock-outs, goods, labour disturbances, trade
disputes, stoppage, delay or interruption of work in the
establishment of either the Company or the Customer, damage to or
destruction of the goods, or any other reasons of force majeure
beyond the control of the Company and the Customer respectively,
the Company shall be at liberty to cancel or at its sole discretion
suspend in whole or in part the performance of the Contract without
incurring any liability for any loss or damage arising
therefrom.
9. Payment
9.1 Unless otherwise agreed in writing,
accounts are payable on or before the 28th day of the month
following the month of delivery or tendered delivery. In the event
that the Customer fails to pay any account on the due date, the
Company shall have without prejudice to any other remedies, the
right to cancel any part of its performance of the Contract and/or
cease further deliveries without notice. The Company reserves the
right to charge interest on all sums overdue (both before and after
judgement) at the rate of 5% above the prevailing base rate of
Barclays Bank plc.
9.2 If the Customer shall fail to make any payment when it
becomes due, or shall enter into any composition or any arrangement
with its creditors, or if distress or execution shall be levied on
the Customer's property or assets, or if the Customer shall commit
an act of bankruptcy or if any petition or order in bankruptcy
shall be presented or made against the Customer, or if being a
company shall have a received appointed, or shall pass a resolution
for winding up, or a court shall make an order to that effect, or
if there shall be a breach by the Customer of any of the terms and
conditions hereof, the company may treat the Contract as determined
but without prejudice to any claim or right the Company may make or
exercise including (but not limited to) for the full purchase price
of the goods delivered and damages for any loss suffered in
consequence of such determination.
9.3 If this contract is terminated or delivery is cancelled or
postponed by or as a result of actions taken by the Customer then
without prejudice to any other remedy which might be open to the
Company, the Company shall have the right to claim in full the
ex-works selling price of any products made together with any other
costs or liabilities incurred by the Company to enable it to
perform the Contract.
10. Claims
10.1 No claim shall be entertained by the
Company in respect of defects apparent on inspection, including
shortages, damages or variations in colour, shape, size or texture
unless:
- 1. the goods are inspected by the Customer immediately on
delivery or collection
- 2. written notification is received by the Company and the
haulier within three days of receipt of goods followed by a
complete claim in writing within seven days thereafter.
- 3. the Company is given reasonable opportunity to inspect
the goods and investigate complaints before the goods are
used.
10.2 In the absence of any complaint made in
accordance herewith the goods shall be deemed to be free from any
defects apparent on inspection and the Customer shall be deemed to
have accepted them accordingly.
10.3 The Company's liability in respect of any
defect in workmanship or material in the goods supplied is limited
to replacement of goods or if the Company chooses, an allowance to
the Customer of the price of the defective goods.
10.4 If the condition or quality of goods
supplied is such as might (subject to these Conditions) entitle the
Customer to claim damages or terminate the contract, the Customer
shall not do so without first asking the Company to supply
satisfactory replacement goods, whereupon the Company shall have
the option of replacing goods deemed to be defective and supplying
the Customer with replacement goods free of charge within a
reasonable period. The Customer shall be bound to accept such
satisfactory replacement goods and the Company shall not be under
any liability in respect of any loss or damage suffered by the
Customer as a result of the initial delivery or delay pending
delivery of replacement goods. Defects in part only of the goods
delivered shall not entitle the Customer to cancel the remainder of
the order or the Contract.
10.5 Save as hereinbefore provided and subject
to the provisions of Section 2(1) of the Unfair Contract Terms Act
1977, the Company limits its liability for any claims arising from
negligence to £500,000. In any event the Company shall not be
liable for any indirect or consequential loss arising
therefrom.
11. Indemnity
The Customer shall indemnify the Company against all damages,
penalties, costs and expenses to which the Company may become
liable as a result of work done in accordance with the Customer's
specifications which involves the infringement of the intellectual
property rights of any third party including (but not limited to)
copyrights, patent and design rights.
12. Severability
If any provision of these Conditions is held by any competent
authority to be invalid or unenforceable in whole or in part the
validity of the other provision of these Conditions and the
remainder of the provision in question shall not be affected
thereby.
13. Dispute Resolution
The Company shall be entitled to refer any dispute arising under
the Contract to adjudication in accordance with the Scheme for
Construction Contracts made pursuant to the provisions of Section
114 of the Housing Grants Construction and Regeneration Act 1996
for which purpose this Contract is deemed to be a construction
contract.
14. Jurisdiction
The proper law of all Contracts with the Company shall be
English Law, and all disputes arising under any Contract shall be
subject to the jurisdiction of the English Courts.
HEALTH AND SAFETY INFORMATION
Products Covered by this Notification
Clay bricks and pavers manufactured to BS 3921 1985, BS 4729
1971 and BS 6677 Part I 1986.
Applications
Clay bricks and pavers are intended for use in walling and
paving applications where the design and construction is in
accordance with BS 5628 Park III 1985 (Bricks) or BS6677 Parts II
and III 1986 (Pavers).
Physical and Chemical Characteristics
Bricks and pavers are made from naturally occurring clays and
aggregates and may be decorated by the application of sands and
colour stains. They are then fired to vitrification temperature
rendering them inert and insoluble for all practical purposes.
Transportationand Handling
Bricks and pavers are delivered in packs, suitable for forklift
handling, which can weigh up to 1.5 tonnes. It is important to
ensure that the safe working load of the handling equipment is not
exceeded and to stand well clear during loading and unloading.
Packs should be unloaded on to a dry, firm and level surface of
adequate bearing capacity. On no account should the strapping be
used to lift the packs. Brick packs put to stock should be placed
on a level reinforced concrete standing. Packs or part packs being
lifted by crane, hoist or similar device should be enclosed in a
suitable safety cage or net.
To open packs the strapping should be cut carefully with
suitable strap cutters as the tensioned straps could cause injury
if broken carelessly. Operators and observers should wear gloves
and goggles and always stand at the side when cutting so that the
strap falls away to left and right. Polythene and other packing
materials should be disposed of in compliance with Local
Environmental and Safety Regulations.
Hazards
Inhalation of dust created by cutting, grinding or drilling
constitutes a health hazard. When carrying out these operations
water should be used as a damping agent and BS Standard masks,
goggles and gloves should be worn together with ear defenders. When
breaking or trimming bricks, gloves and goggles should be worn.
Bricks have sharp edges and suitable gloves should always be worn
when handling them.
Further Information
If more information is required about any aspect of this
notification or if it is intended to use the Company's products in
a situation or manner not described, the Modular Clay Technical
Department should be contacted.