Terms & Conditions
HP NATURAL STONES LTD STANDARD TERMS AND CONDITIONS
FOR THE SALE OF GOODS
1. Application of Conditions
1.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with
any quotation or offer of the Seller which is accepted by the Buyer, or any order of
the Buyer which is accepted by the Seller,
1.2 These Conditions shall govern the Contract to the exclusion of any other terms and
conditions subject to which any such quotation is accepted or purported to be
accepted, or any such order is made or purported to be made, by the Buyer.
2. Interpretation
2.1 In these Conditions: -
"Business Day" means any day other than a Saturday, Sunday or bank holiday;
"the Buyer" means the person who accepts a quotation or offer of the Seller
for the sale of the Goods or whose order for the Goods is
accepted by the Seller;
"the Contract" means the contract for the purchase and sale of the Goods
under these conditions;
"these means the standard terms and conditions of sale set out in
Conditions" this document and (unless the context otherwise requires)
includes any special terms and conditions agreed in writing
between the Buyer and the Seller;
"the Delivery means the date on which the Goods are to be delivered as
Date" stipulated in the Buyer's order and accepted by the Seller;
"the Goods" means the goods (including any instalment of the goods or any
parts for them) which the Seller is to supply in accordance with
these Conditions;
"month" means a calendar month;
"the Seller" means HP Natural Stones Limited a company registered
in England under company number 14965078 and includes all employees and
agents of HP Natural Stones Limited
"writing" includes any communications effected by telex, facsimile
transmission, electronic mail or any comparable means.
2.2 Any reference in these Conditions to a statute or a provision of a statute shall be
construed as a reference to that statute or provision as amended, re-enacted or
extended at the relevant time.
2.3 The headings in these Conditions are for convenience only and shall not affect
their interpretation.
3. Basis of Sale
3.1 The Seller's employees or agents are not authorised to make any representations
concerning the Goods unless confirmed by 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.
3.2 No variation to these Conditions shall be binding unless agreed in writing between
the authorised representatives of the Buyer and the Seller.
3.3 Sales literature, price lists and other documents issued by the Seller in relation to
the Goods are subject to alteration without notice and do not constitute offers to
sell the Goods which are capable of acceptance. An order placed by the Buyer
may not be withdrawn cancelled or altered prior to acceptance by the Seller and no
contract for the sale of the Goods shall be binding on the Seller unless the Seller
has issued a quotation which is expressed to be an offer to sell the goods or has
accepted an order placed by the Buyer by whichever is the earlier of: -
a) the Seller's written acceptance;
b) delivery of the Goods; or
c) the Seller's invoice.
3.4 Any typographical, clerical or other accidental 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.
4. Estimates & Quotations
4.1 It is the responsibility of the Buyer to ensure that accurate measurements are
supplied for estimates and quotations to be prepared by the Seller. Please note
that it is normal practice to add 10% product to an accurate estimate to cover
cutting and breakages.
4.2 The Seller cannot accept liability for surpluses or shortages of product caused by
inaccurate measurements given by a 3rd party.
4.3 Furthermore, in the case of surplus product left at the end of a job caused by
inaccurate measurements given by a 3rd party, the Seller is not liable to offer
refund on the surplus product.
4.4 In the case of shortages of product caused by inaccurate measurements given by
a 3rd party, extra product required is chargeable and the Seller cannot guarantee
an exact match where new product has to be ordered in to fulfil the order.
5. Orders and Specifications
5.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller
unless and until confirmed in writing by the Seller's authorised representative.
5.2 The specification for the Goods shall be those set out in the Seller's sales
documentation unless varied expressly in the Buyer's order (if accepted by the
Seller). The Goods will only be supplied in the minimum units (or multiples) stated
in the Seller's price list or in multiples of the sales outer as specified. Orders
received for quantities other than these will be adjusted accordingly, illustrations,
photographs or descriptions whether in catalogues, brochures, price lists or other
documents issued by the Seller are intended as a guide only and shall not be
binding on the Seller.
5.3 The Seller reserves the right to make any changes in the specification of the
Goods which are required to conform with any applicable safety or other statutory
or regulatory requirements or, where the Goods are to be supplied to the Seller's
specification, which do not materially affect their quality or performance.
5.4 No order which has been accepted by the Seller may be cancelled by the Buyer
except with the agreement in writing of the Seller on the terms that the Buyer shall
indemnify the Seller in full against all loss (including loss of profit), costs (including
the cost of all labour and materials used), damages, charges and expenses
incurred by the Seller as a result of cancellation.
6. Price
6.1 The price of the Goods shall be the price listed in the Quotation current at the date
of acceptance of the Buyer's order or such other price as may be agreed in writing
by the Seller and the Buyer.
6.2 Where the Seller has quoted a price for the Goods other than in accordance with
the Seller's published price list the price quoted shall be valid for 2 weeks only or
such lesser time as the Seller may specify.
6.3 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 which is due to any factor beyond the control of the Seller (such as, without
limitation, any foreign exchange fluctuation currency regulation, alteration of duties,
significant increase in the costs of labour, materials or other costs of manufacture),
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.
6.4 [The Seller will allow the Buyer quantity discounts subject to and in accordance
with the conditions set out in the Seller's published price list for the Goods current
at the date of acceptance of the Buyer's Order.]
6.5 [Any settlement discount specified by the Seller in the Contract will be allowed by
the Seller to the Buyer in respect of Goods for which payment is received by the
Seller on or before the due date and otherwise in accordance with the payment
terms set out in these Conditions and provided that no other amounts owing by the
Buyer to the Seller are overdue and unpaid.]
6.6 Except as otherwise stated under the terms of any quotation or in any price list of
the Seller, and unless otherwise agreed in writing between the Buyer and the
Seller, all prices are inclusive of the Seller's charges for packaging and transport.
6.7 The price is exclusive of any applicable value added tax excise, sales or taxes or
levies of a similar nature which are imposed or charged by any competent fiscal
authority in respect of the Goods, which the Buyer shall be additionally liable to
pay to the Seller.
7. Payment
7.1 Subject to any special terms agreed in writing between the Buyer and the Seller,
the Seller shall invoice the Buyer for the price of the Goods on placement of the
order, and payment must be received from the Buyer before delivery of the Goods,
unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to
take delivery of the Goods, in which event the Seller shall be entitled to invoice the
Buyer for the price at any time after the Seller has notified the Buyer that the
Goods are ready for collection or (as the case may be) the Seller has tendered
delivery of the Goods.
7.2 The Buyer shall pay the price of the Goods (less any discount or credit allowed by
the Seller, but without any other deduction credit or set off) before delivery of the
order, or otherwise in accordance with such credit term as may have been agreed
in writing between the Buyer and the Seller in respect of the Contract. Payment
shall be made on the due date, notwithstanding that, delivery may not have taken
place and/or that the property in the Goods has not passed to the Buyer. The time
for the payment of the price shall be of the essence of the Contract. Receipts for
payment will be issued only upon request.
7.3 All payments shall be made to the Seller as indicated on the form of acceptance or
invoice issued by the Seller.
7.4 The Seller is not obliged to accept orders from any customer or buyer who has not
supplied the Seller with references satisfactory to the Seller; if at any time the
Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in
writing to the Buyer that no further credit will be allowed to the Buyer in which
event no further goods will be delivered to the Buyer other than against cash
payment and notwithstanding Clause 6.2 of these conditions, all amounts owing by
the Buyer to the Seller shall be immediately payable in cash.
8. Delivery
8.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the
place in the United Kingdom specified in the Buyer's order and/or the Seller's
acceptance as the location to which the Goods are to be delivered by the Seller or,
if no place of delivery is so specified, by the Buyer collecting the Goods at the
Seller's premises at any time after the Seller has notified the Buyer that the Goods
are ready for collection.
8.2 The Delivery Date is approximate only and time for delivery shall not be of the
essence unless previously agreed by the Seller in writing. The Goods may be
delivered by the Seller in advance of the Delivery Date upon giving reasonable
notice to the Buyer.
8.3 Where the Goods are to be delivered in instalments, each delivery shall constitute
a separate contract and failure by the Seller to deliver any one or more of the
instalments in accordance with these Conditions or any claim by the Buyer in
respect of any one or more instalments shall not entitle the Buyer to treat the
Contract as a whole as repudiated.
8.4 If the Buyer fails to take delivery of the Goods or any part of them on the Delivery
Date and/or fails to provide any instructions, documents, licences, consents or
authorisations required to enable the Goods to be delivered on that date, the Seller
shall be entitled upon given written notice to the Buyer to store or arrange for the
storage of the Goods and then notwithstanding the provision of Condition 10.1 of
these Conditions risk in the Goods shall pass to the Buyer, delivery shall be
deemed to have taken place and the Buyer shall pay to the Seller all costs and
expenses including storage and insurance charges arising from such failure.
8.5 The Seller will sometimes use a 3rd party carrier to deliver orders. The Seller
cannot be held responsible for delays or damage caused by 3rd party carriers.
9. Natural Stone Characteristics
9.1 The nature of our natural stone means that the colour, appearance, tone and
texture may vary resulting in the actual physical stone differing in shape, size
and look from that featured and photographed on our website and marketing
literature. It is highly recommended that Customers request physical samples of
stones before placing orders. The Customer is responsible for ensuring that the
goods are suitable for their intended purpose and no representation is given
by HP Natural Stones Limited as to the fitness of the goods for any particular
purpose unless otherwise expressly agreed.
9.2 The products are sold on the express understanding that they are natural stone
which possess natural formation characteristics, variation in colour, texture and
markings and are all part of the natural makeup and appeal of natural stone.
10. Non-Delivery
10.1 If the Seller fails to deliver the Goods or any of them on the Delivery Date other
than for reasons outside the Seller's reasonable control or the Buyer's or its
carrier's fault: -
a) if the Seller delivers the Goods at any time thereafter the Seller shall
have no liability in respect of such late delivery;
b) if the Buyer gives written notice to the Seller within 30 Business Days
after the Delivery Date and the Seller fails to deliver the Goods within
30 Business Days after receiving such notice the Buyer may cancel the
order and the Seller's liability shall be limited to the excess (if any) of
the cost of the Buyer (in the cheapest available market) of similar
goods to those not delivered over the price of the Goods not delivered.
11. Inspection/Shortage
11.1 The Buyer is under a duty whenever possible to inspect the Goods on delivery or
on collection as the case may be.
11.2 Where the Goods cannot be examined the carriers note or such other note as
appropriate shall be marked “not examined”.
11.3 The Seller shall be under no liability for any damage or shortages that would be
apparent on reasonable careful inspection if the terms of this clause are not
complied with and, in any event will be under no liability if a written complaint is not
delivered to the Seller within seven days of delivery detailing the alleged damage
or shortage.
11.4 In all cases where defects or shortages are complained of the Seller shall be under
no liability in respect thereof unless an opportunity to inspect the Goods is supplied
to the Seller before any use is made thereof or any alteration or modification is
made thereto by the Buyer.
11.5 Subject to condition 9.3 and condition 9.4, the Seller shall make good any shortage
in the Goods and where appropriate replace any goods damaged in transit as soon
as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
12. Risk and Retention of Title
12.1 Risk of damage to or loss of the Goods shall pass to the Buyer at:
a) in the case of Goods to be delivered at the Seller's premises, the time
when the Seller notifies the Buyer that the Goods are available for
collection; or
b) in the case of Goods to be delivered otherwise than at the Seller's
premises, the time of delivery or, if the Buyer wrongfully fails to take
delivery of the Goods, the time when the Seller has tendered delivery
of the Goods.
12.2 Notwithstanding delivery and the passing of risk in the Goods, or any other
provision of these Conditions, legal and beneficial title of 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.
12.3 [Sub-clause 10.2 notwithstanding, legal and beneficial title of 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 any other goods supplied by the Seller and the
Buyer has repaid all moneys owed to the Seller, regardless of how such
indebtedness arose.]
12.4 Until payment has been made to the Seller in accordance with these Conditions
and title in the Goods has passed to the Buyer, the Buyer shall be in possession of
the Goods as bailee for the Seller and the Buyer shall store the Goods separately
and in an appropriate environment, shall ensure that they are identifiable as being
supplied by the Seller and shall insure the Goods against all reasonable risks.
12.5 The Buyer 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 Seller, but
if the Buyer does so all money owing by the Buyer to the Seller shall (without
prejudice to any other right or remedy of the Seller) forthwith become due and
payable.
12.6 The Seller reserves the right to repossess any Goods in which the Seller retains
title without notice. The Buyer irrevocably authorises the Seller to enter the Buyer’s
premises during normal business hours for the purpose of repossessing the Goods
in which the Seller retains title and inspecting the Goods to ensure compliance with
the storage and identification requirements of sub-clause 10.4.
12.7 The Buyer’s right to possession of the Goods in which the Seller maintains legal
and beneficial title shall terminate if;
a) The Buyer commits or permits any material breach of his obligations
under these Conditions;
b) The Buyer enters into a voluntary arrangement under Part 1 of the
Insolvency Act 1986, or any other scheme or arrangement is made with
his creditors;
c) The Buyer is or becomes the subject of a bankruptcy order or takes
advantage of any other statutory provision for the relief of insolvent
debtors;
d) The Buyer convenes any meeting of its creditors, enters into voluntary
or compulsory liquidation, has a receiver, manager, administrator or
administrative receiver appointed in respect of its assets or undertaking
or any part thereof, any documents are filed with the court for the
appointment of an administrator in respect of the Buyer, notice of
intention to appoint an administrator is given by the Buyer or any of its
directors or by a qualifying floating charge-holder (as defined in
paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution
is passed or petition presented to any court for the winding up of the
Buyer or for the granting of an administration order in respect of the
Buyer, or any proceedings are commenced relating to the insolvency or
possible insolvency of the Buyer.
13. Assignment
13.1 The Seller may assign the Contract or any part of it to any person, firm or
company.
13.2 The Buyer shall not be entitled to assign the Contract or any part of it without the
prior written consent of the Seller.
14. Defective Goods
14.1 If on delivery any of the Goods are defective in any material respect and either the
Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on
delivery "condition and contents unknown" the Buyer gives written notice of such
defect to the Seller within three business days of such delivery, the Seller shall at
its option: -
a) replace the defective Goods within 90 days of receiving the Buyer's
notice; or
b) refund to the Buyer the price for the goods which are defective;
but the Seller shall have no further liability to the Buyer in respect thereof and
the Buyer may not reject the Goods if delivery is not refused or notice given by
the Buyer as aforesaid.
14.2 No Goods may be returned to the Seller without the prior agreement in writing of
the Seller. Subject thereto any Goods returned which the Seller is satisfied were
supplied subject to defects of quality or condition which would not be apparent on
inspection shall either be replaced free of charge or, at the Seller's sole discretion
the Seller shall refund or credit to the Buyer the price of such defective Goods but
the Seller shall have no further liability to the Buyer.
14.3 If the Buyer purchases any Goods within six months of the launch of such goods
the Buyer shall have the right to return the Goods or any part of such order within
one month of delivery, provided always that the Buyer exercising such right shall:-
a) return such goods at his risk and cost; and
b) indemnify the Seller against any cost incurred by the Seller in rectifying
any deterioration of the Goods caused by incorrect storage or use
while in the Buyer's hands.
14.4 The Seller shall be under no liability in respect of any defect arising from fair wear
and tear, or any wilful damage, negligence, subjection to normal conditions, failure
to follow the Seller's instructions (whether oral or in writing), misuse or alteration of
the Goods without the Seller's approval, or any other act or omission on the part of
the Buyer, its employees or agents or any third party.
14.5 Subject as expressly provided in these Conditions, and except where the Goods
are sold under a consumer sale, all warranties, conditions or other terms implied
by statute or common law are excluded to the fullest extent permitted by law.
14.6 Where the Goods are sold under a consumer sale the statutory rights of the Buyer
are not affected by these Conditions.
14.7 Except in respect of death or personal injury caused by the Seller's negligence, or
as expressly provided in these Conditions, the Seller shall not be liable to the
Buyer by reason of any representation, or any implied warranty, condition or other
term, or any duty at common law or under statute, or under the express terms of
the Contract, for any direct or consequential loss or damage sustained by the
Buyer (including without limitation loss of profit or indirect or special loss), costs,
expenses or other claims for consequential compensation whatsoever (and
whether caused by the negligence of the Seller, its servants or agents or
otherwise) which arise out of or in connection with the supply of the Goods or their
use or resale by the Buyer.
14.8 The Buyer shall be responsible to ensure that, except to the extent that instructions
as to the use or sale of the Goods are contained in the packaging or labelling of
the Goods, any use or sale of the Goods by the Buyer is in compliance with all
applicable statutory handling and sale of the Goods by the Buyer is carried out in
accordance with directions given by the Seller or any competent governmental or
regulatory authority and the Buyer will indemnify the Seller against any liability loss
or damage which the Seller might suffer as a result of the Buyer's failure to comply
with this condition.
15. Buyer's Default
15.1 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 order 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 the Buyer interest (both before and after any judgement) on the
amount unpaid, at the rate of two per cent per annum above National
Westminster Bank plc base rate from time to time, until payment in full
is made (a part of a month being treated as a full month for the
purpose of calculating interest).
15.2 This condition applies if: -
a) the Buyer fails to perform or observe any of its obligations hereunder or
is otherwise in breach of the Contract; or
b) the Buyer becomes subject to an administration order or makes any
voluntary arrangement with its creditors (within the meaning of the
Insolvency Act 1986) or (being an individual or firm) becomes bankrupt
or (being a company) goes into liquidation; or
c) an encumbrancer takes possession, or a receiver is appointed, of any
of the property or assets of the Buyer; or
d) the Buyer ceases, or threatens to cease, to carry on business; or
e) 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.
15.3 If Condition 13.2 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.
16. Limitation of Liability
16.1 Subject to condition 7, condition 8 and condition 13, the following provisions set
out the entire financial liability of the Seller (including any liability for the acts or
omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
a) any breach of these conditions;
b) any use made (including but not limited to modifications) or resale by
the Buyer of any of the Goods, or of any product incorporating any of
the Goods; and
c) any representation, statement or tortious act or omission including
negligence arising under or in connection with the Contract.
16.2 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 the Contract.
16.3 Nothing in these conditions excludes or limits the liability of the Seller:
a) for death or personal injury caused by the Seller's negligence; or
b) for any matter which it would be illegal for the Seller to exclude or
attempt to exclude its liability; or
c) for fraud or fraudulent misrepresentation.
16.4 Subject to condition 14.2 and condition 14.3:
a) the Seller's total liability in contract, tort (including negligence or breach
of statutory duty), misrepresentation, restitution or otherwise, arising in
connection with the performance or contemplated performance of the
Contract shall be limited to the Contract price; and
b) the Seller shall not be liable to the Buyer for any pure economic loss,
loss of profit, loss of business, depletion of goodwill or otherwise, in
each case whether direct, indirect or consequential, or any claims for
consequential compensation whatsoever (howsoever caused) which
arise out of or in connection with the Contract.
17. Confidentiality, Publications and Endorsements
17.1 The Buyer undertakes to the Seller that:-
a) the Buyer will regard as confidential the contract and all information
obtained by the Buyer relating to the business and/or products of the
Seller and will not use or disclose to any third party such information
without the Seller's prior written consent provided that this undertaking
shall not apply to information which is in the public domain other than
by reason of the Buyer's default;
b) the Buyer will not use or authorise or permit any other person to use
any name, trademark, house mark, emblem or symbol which the Seller
is licensed to use or which is owned by the Seller upon any premises
note paper visiting cards advertisement or other printed matter or in
any other manner whatsoever unless such use shall have been
previously authorised in writing by the Seller and (where appropriate)
its Licensor;
c) the Buyer will use all reasonable endeavours to ensure compliance
with this Condition by its employees, servants and agents.
17.2 This Condition shall survive the termination of the Contract.
18. Communications
18.1 All communications between the parties about the Contract shall be in writing and
delivered by hand or sent by pre-paid first-class post or sent by fax or sent by
electronic mail:
a) (in the case of communications to the Seller) to its registered office or
such changed address as shall be notified to the Buyer by the Seller;
or
b) (in the case of the communications to the Buyer) to the registered
office of the addressee (if it is a company) or (in any other case) to any
address of the Buyer set out in any document which forms part of the
Contract or such other address as shall be notified to the Seller by the
Buyer.
18.2 Communications shall be deemed to have been received:
a) if sent by pre-paid first class post, two Business Days after posting
(exclusive of the day of posting); or
b) if delivered by hand, on the day of delivery; or
c) if sent by fax or electronic mail on a Business Day prior to 4.00 pm, at
the time of transmission and otherwise on the next Business Day.
18.3 Communications addressed to the Seller shall be marked for the attention of
Hugo Santos.
19. Force Majeure
19.1 In the event that either party is prevented from fulfilling its obligations under this
Agreement by reason of any supervening event beyond its control including but not
limited to war, national emergency, flood, earthquake, strike or lockout (subject to
Sub-clause 16.2) the party shall not be deemed to be in breach of its obligations
under this Agreement. The party shall immediately give notice of this to the other
party and must take all reasonable steps to resume performance of its obligations.
19.2 Sub-clause 16.1 shall not apply with respect to strikes and lockouts where such
action has been induced by the party so incapacitated.
19.3 Each party shall be liable to pay to the other damages for any breach of this
Agreement and all expenses and costs incurred by that party in enforcing its rights
under this Agreement.
19.4 If and when the period of such incapacity exceeds 6 months then this Agreement
shall automatically terminate unless the parties first agree otherwise in writing.
20. Waiver
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.
21. Severance
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 provisions of these
Conditions and the remainder of the provision in question shall not be affected
thereby.
22. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract
pursuant to the Contracts (Rights of Third Parties) Act 1999.
23. Governing Law and Jurisdiction
The Contract shall be governed by the laws of England and the parties agree to
submit to the exclusive jurisdiction of the English courts.