Terms and Conditions
In these Conditions:
Company means Berkshire Stone Limited
Order means an Order for the Products and Services
Products and Services means the Products and Services which the Company is to supply, as set out in the Order, and
Purchaser means the person whose order for Products and Services is accepted by the Company
These conditions shall apply to any Order for Products and Services placed with the Company without variation or amendment, save where the Company agrees in writing to vary or amend these Conditions.
2.1 All estimates or quotations remain valid for 30 days unless otherwise stated and no Order for Products and Services shall become binding on the Company until accepted by the Company in writing. The Company reserves the right, at its absolute discretion, to increase the price specified in any estimate or quotation by notice in writing to the Purchaser or to withdraw an estimate or quotation at any time prior to the Purchaser’s acceptance of an estimate or quotation.
2.2 No acceleration measure or the need to work outside normal workshop and installation hours of 8.00am to 4.30pm Mondays to Fridays (excluding Bank Holidays) have been anticipated, nor incorporated, into the price estimated or quoted for an Order unless specifically requested by the Purchaser and accepted in writing by a Director of the Company.
2.3 Additional charges will also be made by the Company to the Purchaser if:
2.3.1 Delivery of the Products and Services is required outside normal working hours of 8.00am to 4.30pm, unless otherwise agreed in writing with the Company.
2.3.2 The Purchaser varies his Order at any time after it has been accepted by the Company
2.3.3 For any reason the installer delivering the Products and Services to the Purchaser is unable to gain access to the premises within 60 minutes of arrival at the agreed arrival time at the Purchaser’s property or site
2.3.4 The Purchaser requests acceleration measures and/or the Company to work outside the normal working hours mentioned in clause 2.2 above
2.3.5 Where the Purchaser is to collect or arrange collection of the Products, then if the Purchaser or its agent fails to collect the Products within 10 days of the Company’s notice to the Purchaser confirming that the Products are ready for collection, the Company shall store such Products at the Purchaser’s risk and expense.
3 Payment and interest
3.1 When the Purchaser places an Order for the supply of Products and their installation, a 50% deposit of the order value is payable. The balance of the order value is payable once the Products and Services have been delivered (i.e. at completion of the works), unless otherwise agreed in writing. When the Order is for supply only of Products, 100% of the order value is payable in advance.
3.2 If the Purchaser fails to make payment on the due date, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
3.2.1 Suspend any further deliveries to the Purchaser, and/or disapply any special payment terms given to that Order, and/or cancel the order, and
3.2.2 Charge the Purchaser interest (both before and after any judgement) on a daily basis on the amount unpaid at a rate of 4% above the base rate of the Bank of England, until payment is made in full
3.3 The Purchaser shall make all payments due to the Company for the Products in full without any deduction, whether by way of set-off, counterclaim, discount, abatement or otherwise
3.4 Errors and omissions made by the Company on any order or any price, estimate or quotation for Products and Services are accepted as such by the Purchaser and the Company shall have no liability in respect of the same
3.5 No allowance for the establishment of a retention fund is allowed unless specifically agreed to in writing by the Company
4 Risk, Delivery and Installation
4.1 Risk in damage to the Products shall pass from the Company to the Purchaser:
4.1.1 In the case of Products that are installed at the customer’s premises or site, at the point the Purchaser signs the Installation Acceptance form at the completion of the installation of the Products or, if the Purchaser is not present or able to sign the Installation Acceptance form, within 24 hours of Installation being completed and the Company receiving no communication from the Purchaser regarding faulty Products or installation (as set out in clause 4.6 below); or
4.1.2 In the case of products that are purchased on a supply-only basis, at the moment the Purchaser signs for receipt of the Products ordered
4.2 Ownership of, and title to, the Products shall not pass to the Purchaser until the Company has received the full price (including any accrued interest thereon) to the Products and Services.
4.3 The Purchaser shall by notice in advance in writing provide details of any non-standard delivery or installation requirements. Any delivery or installation dates specified to the Purchaser are estimates made in good faith, and the Company shall be under no liability and the Purchaser shall have no right to refuse delivery or installation of the Products, to terminate the Order or to any claim for damages by reason of any delay in delivery or installation of the Products howsoever caused
4.4 Any alterations to cupboard carcasses or other structures that are identified at the templating or other stage are the responsibility of the Purchaser, and unless otherwise specified are not covered in the works undertaken by the Company nor in the quotations provided by the Company. Equally the works undertaken by the Company do not cover caulking - applying a decorative filler – to the back of upstands and similar surfaces unless other specified.
4.5 Save where the Company has expressly agreed otherwise, delivery and installation of the Products will be made during the Company’s normal working hours of 8am to 4.30pm Mondays to Fridays (excluding Bank Holidays). Unless agreed otherwise in writing, the Company will aim to undertake the installation of the Products in one continuous visit or in contiguous visits; however, the Company reserves the right to effect delivery and installation of the Products by instalments
4.6 The Purchaser, his employee or agent must at the time of templating of the Products to be installed sign acceptance of the templating form.
4.7 The Purchaser, his employee or agent are required at the time that the installation of the Products is completed to inspect the Products installed and, where the Products and Services have been satisfactorily delivered, sign the installation acceptance form to confirm this. If the Purchaser, his employee or agent are not present or able to sign at this time, then the Purchaser needs to alert the Company within twenty-four hours of any faults regarding the Products or their installation, and confirm this in writing within five working days. In the absence of any such written communication, it is deemed that the Products have been correctly delivered and installed.
5 Cancellation and Returns
5.1 Where there is a complaint about the Products the Purchaser must:
5.1.1 Confirm the complaint within five working days (as set out in clause 4.6 above) together with all relevant details in support of such complaint including details of the remedial action sought of the Company, and
5.1.2 Allow the Company such access and facilities as it shall reasonably require to investigate such complaint promptly and, if appropriate and at the Company’s discretion, to remedy that complaint promptly, rectify any defect or supply any replacement products within a reasonable time
5.2 If the Purchaser fails to take delivery of the Products and Services pursuant to an Order, or cancels an Order, the Purchaser shall (at the Company’s discretion) pay in full the price agreed for the Products and Services. If the Purchaser has already paid for the Products and Services, he will not be entitled to any reimbursements save at the absolute discretion of the Company
5.3 Without prejudice to clause 5.2 above, an Order accepted by the Company may be cancelled only with the written agreement of the Company and where such written agreement is supplied, the Company reserves the right to specify the amount of and charge the Purchaser a cancellation fee, to cover the Company in full for any loss incurred (including costs, charges and expenses incurred and any loss of profit)
6.1 Products supplied by the Company shall be of the type, description and specification referred to in the Order to which they relate. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are to the fullest extent permitted by law excluded from these Conditions
7 Liability of the Company
7.1 Where Products are damaged or not satisfactorily installed, and a complaint is made as set out in clause 5, the Company’s liability shall be attributed to the proportion of the price attributable to the defective Products, and in any event in no circumstances will the Company’s liability exceed the value of the Order to which such liability relates. The Company shall not be liable if any adjustments, alterations or other works have been undertaken to the Products by any person other than the Company
7.2 Subject to clause 7.1 above, the Company shall not be liable to the Purchaser for any consequential loss or damage (whether for loss of profits or otherwise), third party claims, losses, expenses or other claims for consequential compensation which arise out of, or in connection with, the supply of Products or their use by the Purchaser
7.3 The Company’s natural stone products have natural and geological variations and no warranty is given by the Company regarding any particular colour, texture, grain, markings or other characteristics. Such stone products also have some degree of pitting and vents, which are an integral part of the product and beyond the control of the Company
7.4 In the event that the Purchaser can clearly demonstrate that faults that are the subject of a complaint by the Purchaser are due to either faulty installation or faulty Products, except natural faults in Products as set out in clause 7.3, then the Company will promptly replace such defective products without charge including installation
8 Breach by the Purchaser and Insolvency
The Company shall, without prejudice to any other right or remedy available to it, have the right with or without notice, to terminate any Orders of the Purchaser and all amounts owing by the Purchaser will become immediately due and payable, if:
8.1 The Purchaser fails to pay any amount to the Company on the due date for payment and remains in default for more than five working days after being notified in writing to make such payment; or
8.2 The Purchaser commits a material breach of any material terms of these Conditions or any express term relating to an Order and (if such breach is remediable) fails to remedy that breach within a period of ten working days after being notified in writing to do so; or
8.3 The Purchaser suspends, or threatens to suspend , payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of doing so, in either case, within the meaning of section 168 of the Insolvency Act or (being sa partnership) has any partner to whom any of the foregoing apply; or
8.4 The Purchaser commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
8.5 A petition is filed, a notice is given, a resolution is passed or an order is made for or in connection with the winding up of the Purchaser; or
8.6 An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or an administrator is appointed over the Purchaser; or
8.7 A floating charge holder over the assets of the Purchaser has become entitled to appoint or has appointed an administrative receiver; or
8.8 A person becomes entitled to appoint a receiver over the assets of the Purchaser or a receiver is appointed over the assets of the Purchaser; or
8.9 The Purchaser, being an individual, is the subject of a bankruptcy petition or order; or
8.10 A creditor or encumbrance of the Purchaser attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against the whole or any part of its assets and such attachment or process is not discharged within ten working days; or
8.11 Any event occurs, or proceeding is taken, with respect to the Purchaser in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 8.1 to 8.10 inclusive; or
8.12 The Purchaser suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
8.13 The Purchaser, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation
9 Force Majeure
9.1 The Company reserves the right to defer the date of delivery or to cancel an Order if it is prevented from or delayed in the carrying out the Order due to circumstances beyond the reasonable control of the Company including, without limitation, sourcing problems of its suppliers, acts of God, government actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes, or restraints or delays affecting carriers, provided that:
9.1.1 The Company will inform the Purchaser promptly should any such occasion arise, but shall be under no liability to the Purchaser for failure to deliver Products and Services in these circumstances; and
9.1.2 The Company shall make reasonable efforts to resolve such matters; and
9.1.3 The provisions of clause 7.2 shall apply to such failure; and
9.1.4 If the event in question continues for a period in excess of 90 days, the Company shall be entitled to give notice in writing to the Purchaser to terminate any Orders with the Purchaser (and any person or company associated with that Purchaser) provided always that such termination will be without prejudice to the Company’s right to recover payment for any Products and Services already supplied to the Purchaser.
10.1 The Company may sub-contract part or all of the Services it provides in fulfilling an Order
11 Intellectual Property
11.1 Unless otherwise agreed by the Company in writing, any copyright or other intellectual property rights generated by the Company in specifications, drawings or other technical information in respect of any Products supplied to the Purchaser by the Company shall remain the sole property of the Company and shall not form part of an Order or contract. The Purchaser shall not publish, disclose or communicate any part of such copyright or other intellectual property rights without the prior consent in writing of the Company
12 Governing Law
These Conditions and any Order shall be governed by the laws of England and Wales, and the Company and the Purchaser each agree to submit to the exclusive jurisdiction of the English courts
13.1 The provisions of the Contract (Right of Third Parties) Act 1999 are excluded from an agreement or contract entered into between the Company and the Purchaser
13.2 Nothing in these Conditions affects the statutory rights of a Purchaser who deals as a consumer
13.3 If the Company decides at any time not to insist upon the strict performance of any of the Purchaser’s obligations under these Conditions, or if the Company decides not to exercise any of the rights or remedies to which it is entitled under these Conditions, this shall not constitute a waiver of such rights or remedies and shall not relieve the Purchaser from compliance with such obligations
13.4 A waiver by the Company of any default by the Purchaser of these Conditions will not constitute a waiver of any subsequent default
13.5 No waiver by the Company of any of these Conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing
13.6 If any of these Conditions or any provisions of any agreement between the Company and the Purchaser are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law
13.7 No variation to these Conditions shall be binding unless agreed in writing by a Director of the Company
13.8 The terms of an Order, these Conditions and any document in writing modifying such (in accordance with the terms of these Conditions) represent the entire agreement between the Company and the Purchaser in relation to the supply of Products pursuant to that Order and supersede any prior agreement, understanding or agreement between the Company and the Purchaser, whether oral or in writing
13.9 The Purchaser acknowledges that, in entering into an agreement with the Company to supply products, it has not relied on any promise or undertaking given by the Company or implied from anything said or written in discussions prior to such agreement being concluded except as expressly stated in these Conditions
13.10 We reserve the right to photograph the Products and use them for the Company’s promotional purposes