Terms & Conditions

GROUND MATERIALS LIMITED CONDITIONS OF SALE

The Buyer’s attention is in particular drawn to the provisions of conditions 4.5, 5.6, 5.7, 6.13, 12.4 and 13.

1 INTERPRETATION

1.1 The definitions and rules of interpretation in this condition 1.1 apply in these conditions.

“Buyer” means the person, firm or company who purchases the Goods and/or Services from the Company.

“Company” means Ground Materials Limited, trading as GMAT and where relevant any subcontractor of it. Registered in England and Wales under company number 12597239 with VAT Number GB 348 7243 75, whose registered office address is 12a Olympic Park Olympic Way, Birchwood, Warrington, England, WA2 0YL.

“Hazardous Material” means any material which is toxic, flammable, explosive, harmful to human health, the environment, or is classified as hazardous, controlled, or dangerous under any applicable law.

“Environmental Legislation” means all applicable statutes, regulations, by-laws, orders, or other legal requirements relating to environmental protection, waste management, pollution control, or health and safety in the United Kingdom, including but not limited to the Environmental Protection Act 1990, the Waste (England and Wales) Regulations 2011.

“Force Majeure Event” means any circumstance, event or cause beyond the reasonable control of the Company including, without limitation, acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical or biological contamination, any law or action taken by a government or public authority, collapse of buildings, fire, explosion or accident, interruption or failure of utility services, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials.

“Contract” means the contract between the Company and the Buyer for the supply of Goods or Services or Goods and Services in accordance with these conditions.

“Delivery Point” means the place where delivery of the Goods is to take place under condition 6.

“Company Goods” means any soil, aggregates, recycled materials or other goods supplied or arranged by the Company for the Buyer.

“Buyer Materials” means any soil, waste, aggregates, spoil, recycled materials or other materials supplied, delivered, made available to, collected by, or handled by or on behalf of the Company for the Buyer.

“Order” means the Buyer’s order for the Goods or Services or Goods and Services.

“Specification” means the description or specification for the Services provided by the Company to the Buyer.

“Services” means the services supplied to the Buyer by the Company.

“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open.

1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3 Words in the singular include the plural and in the plural include the singular.

1.4 A reference to one gender includes a reference to the other gender.

1.5 Where the words “include(s)” or “including” are used in these conditions, they are deemed to have the words “without limitation” following them, and are illustrative and shall not limit the sense of the words preceding them.

1.6 Condition headings do not affect the interpretation of these conditions.

1.7 The Buyer acknowledges and agrees that:

(a) it has not relied on any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract;

(b) it has satisfied itself as to the suitability of the Goods and/or Services for its particular purpose; and

(c) no samples, descriptions, specifications, technical data, marketing material or advice provided by the Company shall form part of the Contract unless expressly agreed in writing.

The Buyer further acknowledges that aggregates and related materials are subject to natural variation and that no representation is given that goods will be identical to any sample or previous supply.

2 APPLICATION OF TERMS

2.1 Subject to any variation under condition 2.4, the Contract shall be conducted on these conditions to the exclusion of all other terms and conditions the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing (including any terms or conditions which the Buyer purports to apply under any Order, purchase order, confirmation of order, specification or other document).

2.2 In the event of any conflict or inconsistency between these conditions, any quotation, any acknowledgement of order, any Order, any Specification, or any other document forming part of the Contract, the following order of precedence shall apply:

(a) any written acknowledgement of order issued by the Company;

(b) these conditions;

(d) the Order; and

(e) the Specification.

For the avoidance of doubt, no terms or conditions contained in or referred to in any Order, purchase order, portal, vendor onboarding document, confirmation of order or other Buyer document shall apply.

2.3 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.

2.4 Any variation to these conditions and any representations about the Goods and/or Services shall have no effect unless expressly agreed in writing and signed by a Director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.

2.5 Each Order or acceptance of a quotation for Goods and/or Services by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy the Goods and/or Services subject to these conditions.

2.6 No Order placed by the Buyer shall be deemed to be accepted unless and until the Company issues a written acknowledgement of order, commences performance of the Order, delivers the Goods, or performs any Services, at which point and on which date the Contract shall come into existence. The Company may accept or reject any Order in whole or in part in its absolute discretion.

2.7 The Buyer shall ensure that the terms of its Order and any applicable specification for Goods and/or Services are complete and accurate.

2.8 The Buyer shall ensure that any Buyer Materials supplied to, delivered to, made available to, or collected by the Company comply in all respects with all applicable Environmental Legislation and all other applicable laws, regulations, permits, licences, consents and industry codes. The Buyer warrants, represents and undertakes on a continuing basis throughout the Contract that all Buyer Materials delivered or made available to the Company are and shall be:

(a) accurately described, classified, coded, labelled and documented;

(b) accompanied by all transfer notes, consignment notes, waste descriptions, laboratory analyses, permits, licences, registrations, exemptions, notifications, certificates and other documents required by law or reasonably requested by the Company;

(c) free from any contamination, admixture or constituent not expressly disclosed in writing to the Company before collection or delivery; and

(d) suitable for handling, transport, storage, treatment, recovery, recycling or disposal by the method contemplated by the Contract.

The Buyer shall promptly provide any further information, samples, certificates or test results reasonably requested by the Company. The Buyer acknowledges that the Company enters into the Contract in reliance on the accuracy and completeness of the information supplied by the Buyer.

The Buyer shall retain and, within 48 hours of request (or such shorter period as reasonably required), provide copies of all documents, test results, waste transfer notes, consignment notes, permits, licences, registrations and correspondence relating to the Goods and their classification, transfer, handling, recovery or disposal.

The Buyer shall comply with its duty of care obligations in respect of the Buyer Materials and shall ensure that all information provided to the Company is sufficient to enable the Company to comply with its own duty of care obligations. Receipt, collection, transport, storage, testing, treatment or handling of the Buyer Materials by the Company shall not constitute acceptance of the Buyer’s description, classification or compliance of the Goods.

2.9 If the Company reasonably suspects that any Buyer Materials are misdescribed, misclassified, contaminated, unsafe, non-compliant, or otherwise not in accordance with the Contract, the Company may without liability and at the Buyer’s risk and cost:

(a) refuse to accept or unload the Buyer Materials;

(b) quarantine, isolate, store, return, redirect, treat or dispose of the Buyer Materials;

(d) arrange for sampling, testing and analysis by itself or by a third party.

The Buyer shall pay all costs and expenses incurred by the Company under this condition on demand.

2.10 The Buyer warrants that it is acting in the course of business and not as a consumer.

2.11 No receipt, collection, loading, unloading, weighing, inspection, sampling, testing, storage, treatment, recovery, recycling, disposal, onward transfer or handling of Buyer Materials shall constitute acceptance by the Company that the Buyer Materials comply with the Contract or with any description, classification, code, analysis, documentation, law, permit or regulatory requirement.

3 DESCRIPTION

3.1 The quantity and description of the Goods and/or Services shall be as set out in the Company’s quotation or acknowledgement of Order.

3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or on its website are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them. They shall not form part of the Contract and this is not a sale by sample.

3.3 Specification and natural variation

All aggregates, soils and similar materials are naturally occurring products and may vary in colour, texture, grading, moisture content and composition. Any description, grading, or specification is given for guidance only and is subject to reasonable tolerance. For the avoidance of doubt, such variation shall not constitute a defect for the purposes of conditions 6, 12 or 13.

3.4 Tonnage and measurement

The quantity of Goods supplied shall be determined by the Company’s weighbridge, supplier records or delivery documentation, which shall be conclusive evidence of tonnage in the absence of manifest error and for the purposes of condition 7. Any stated tonnage is subject to reasonable commercial tolerance.

3.5 Moisture and bulking

The Buyer acknowledges that moisture content may vary and may affect volume, weight, workability and performance. The Company shall have no liability for the effects of moisture variation or bulking and such matters shall not give rise to a claim under conditions 6, 12 or 13.

3.6 Suitability and use

The Buyer is responsible for ensuring that the Goods are suitable for their intended use. No warranty is given as to fitness for purpose unless expressly agreed in writing by the Company in accordance with condition 12.2. The Company shall not be liable once the Goods have been tipped, spread, mixed, incorporated into works, or otherwise used, and any such use shall be deemed acceptance for the purposes of conditions 6.13 and 12.4. For the avoidance of doubt, no claim shall be made in respect of any Goods once they have been incorporated into any works where such defect would have been apparent on reasonable inspection prior to use.

3.7 Inspection on delivery

The Buyer shall inspect the Goods at the point of delivery. Any issues relating to quantity, quality, or compliance which would be apparent on reasonable inspection must be notified in accordance with condition 6.13, failing which the Goods shall be deemed accepted in accordance with condition 6.15.

The Buyer shall not mix, spread, process, incorporate, resell, move or otherwise use any Goods which are alleged or known to be defective until the Company has had a reasonable opportunity to inspect and sample them. Any such use shall constitute acceptance of the Goods for the purposes of conditions 6.13 and 12.4.

3.8 Delivery and site conditions

The Buyer shall ensure that the delivery site is safe, suitable, and has adequate access for the delivery vehicle, including appropriate ground conditions and unloading space, in accordance with condition 6.9. The Company may refuse delivery where, in its reasonable opinion, access is unsafe or impractical without liability, and conditions 6.8 and 6.9 shall apply where relevant.

3.9 Waiting time and aborted deliveries

The Company reserves the right to charge for waiting time, delays, part-loads, aborted deliveries, or failed collections where caused by the Buyer, including where site access, preparation, or instructions are inadequate, in accordance with condition 6.8. Waiting time shall be chargeable after 30 minutes from arrival at the Delivery Point at the Company’s prevailing rates.

3.10 Delivery method and discharge

Delivery is deemed complete upon discharge of the Goods at the Delivery Point in accordance with condition 6.1. The Buyer is responsible for directing the discharge location and method. The Company shall have no liability for damage to surfaces, ground conditions or underground services unless caused by negligence, and risk shall pass in accordance with condition 8.1.

3.11 Vehicle limits and responsibility

The Buyer shall ensure compliance with all applicable weight restrictions, access requirements and site constraints. The Company shall not be liable for any damage arising from following the Buyer’s delivery instructions unless caused by negligence, and the Buyer shall indemnify the Company in accordance with condition 5.7 where applicable.

4 SERVICES

4.1 The Company warrants to the Buyer that the Services will be provided using reasonable care and skill.

4.2 The Company shall supply the Services in accordance with its Service Specification in all material respects. The Company reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Buyer in any such event.

4.3 The Company shall use reasonable endeavours to meet performance dates for the Services set out in an Order or quotation, but any performance date or times stated in the Contract are approximate only and shall not be binding. Accordingly, the time of supply of the Services shall not be of the essence of the Contract.

4.4 Where the Company supplies in connection with the provision of the Services any services or any goods (including haulier/carrier services) supplied by a third party, the Company does not give any warranty, guarantee or other term as to the third party’s services or goods quality, fitness for purpose or otherwise, but shall, where possible, assign to the Buyer the benefit of any warranty, guarantee or indemnity given to the Company by the third party supplying the services or goods to the Company.

4.5 The Company shall not consider any claim in respect of any alleged failure, defect or default in the provision of Services unless:

(a) the Buyer notifies the Company in writing within 7 days of the date on which the matter giving rise to the claim occurred or ought reasonably to have been discovered;

(b) the notice sets out full particulars of the claim; and

Compliance with this condition 4.5 is a condition precedent to any liability of the Company. The Company’s total liability in respect of any such claim shall be limited to, at the Company’s option, re-performance of the affected Services, the cost of rectifying the failure, or the net price paid for the affected Services, whichever is lowest.

4.6 If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission (including negligence) by the Buyer or failure by the Buyer to perform any relevant obligation (“Buyer Default”):

4.6.1 without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations in each case to the extent the Buyer Default prevents or delays the Company’s performance of any of its obligations;

4.6.2 the Company shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this condition 4.6; and

4.6.3 The Buyer shall indemnify and keep indemnified the Company in full against all losses, liabilities, damages, costs, charges, claims, expenses and professional fees (including legal fees on a full indemnity basis) suffered or incurred by the Company arising directly or indirectly out of or in connection with the Buyer Default.

4.7 Where the Company provides Services involving the handling, transportation, storage, treatment, recovery, recycling or disposal of Buyer Materials, the Company shall use reasonable skill and care and shall act in accordance with applicable Environmental Legislation. However, the Company shall have no liability, and the Buyer shall be liable in accordance with conditions 5.6 and 5.7, for any loss, damage, contamination, pollution, enforcement action, delay, cost or expense to the extent arising from:

(a) inaccurate, incomplete or misleading information supplied by the Buyer;

(b) misdescribed, misclassified, contaminated or non-compliant Buyer Materials; or

(c) the presence of any Hazardous Material not expressly disclosed in writing to the Company before the relevant collection or delivery.

4.8 The Company may act as principal, agent, broker or intermediary in arranging the supply, collection, carriage, treatment, recovery, recycling or disposal of Goods or Buyer Materials. The capacity in which the Company acts shall be as stated in the quotation or acknowledgement of order. Where not expressly stated, the Company shall be deemed to act as principal in respect of its own supply of Goods and as broker/intermediary in arranging third-party haulage, treatment, recovery, recycling or disposal services.

5 DESCRIPTION OF GOODS

5.1 The Buyer shall provide to the Company a description of any Goods which it requires the Company (or its nominated carrier/haulier) to receive prior to the Buyer delivering or the Company (or its nominated carrier/haulier) collecting or accepting any Goods from the Buyer. The Buyer warrants the accuracy of the description of the Goods it provides to the Company.

5.2 If in the Company’s reasonable opinion the Buyer’s description of the Goods is or may be inaccurate, incomplete, misleading, non-compliant or insufficient, the Company may in its absolute discretion and without liability to the Buyer:

(a) refuse to accept the Goods;

(b) suspend performance of the Contract;

(d) terminate the Contract immediately by notice in writing.

5.3 The Company shall be entitled to rely conclusively on the results of any analysis, inspection or assessment carried out by it or on its behalf, absent manifest error.

5.4 If the Company terminates the Contract under this condition 5, the Buyer shall collect the Goods within 24 hours of notice, or such shorter period as the Company reasonably requires for safety, legal or operational reasons.

5.5 If the Buyer fails to collect the Goods in accordance with condition 5.4, the Company may at the Buyer’s risk and cost return, redirect, treat, recover, recycle, dispose of, or otherwise deal with the Goods as it sees fit, and the Buyer shall indemnify the Company for all losses, liabilities, costs and expenses incurred.

5.6 The Buyer shall indemnify and keep indemnified the Company in full against all losses, liabilities, damages, fines, penalties, remediation costs, clean-up costs, claims, demands, actions, regulatory liabilities, third-party claims, costs, expenses and professional fees suffered or incurred by the Company arising directly or indirectly from any inaccurate, incomplete, false or misleading description, classification, coding, analysis, characterisation or documentation of the Goods.

5.7 Without prejudice to condition 5.6, the Buyer shall indemnify and keep indemnified the Company, its group companies, and its and their employees, officers, agents and subcontractors against all losses, liabilities, damages, fines, penalties, costs, expenses, remediation costs, clean-up costs, claims, demands, actions and professional fees (including legal fees on a full indemnity basis) arising directly or indirectly out of or in connection with:

5.7.1 the presence, suspected presence, escape, release, migration, deposit, spillage or discharge of any Hazardous Material in, on, under or from the Goods;

5.7.2 any inaccuracy, misdescription, misclassification, miscoding, contamination or non-compliance of the Buyer Materials;

5.7.3 any breach of Environmental Legislation or regulatory requirement relating to the Goods, their transfer, collection, carriage, storage, treatment, recovery, recycling or disposal;

5.7.4 any environmental incident, nuisance, pollution event, contamination event, clean-up obligation, enforcement action, prosecution or third-party claim relating to the Goods, whether occurring before, during or after delivery, collection, processing or disposal;

5.7.5 any death, personal injury, property damage, business interruption, delay, loss of profit, wasted expenditure, or loss of use suffered by any person arising out of or in connection with the Buyer Materials; and

5.7.6 any act or omission of the Buyer, its employees, agents, subcontractors or carriers in connection with the Buyer Materials.

This indemnity shall apply whether or not the Company had knowledge of the relevant circumstances, except to the extent that the loss was caused by the Company’s fraud or by any liability that cannot lawfully be excluded or restricted.

5.7.7 Where the Buyer nominates or instructs the use of any carrier, broker, dealer, facility, tip, site, processor, recycler or disposal/recovery route, the Buyer warrants that such party, site or facility holds all permits, licences, registrations, exemptions and authorisations required by law. The Company shall not be liable for any loss, delay, rejection, enforcement action or additional cost arising from the Buyer’s nomination or instruction. The Buyer acknowledges that the Company may be required to retain waste transfer notes, consignment notes and related records and may disclose documents or information to regulators, carriers, facilities, insurers, professional advisers or other parties where reasonably required for legal, regulatory, insurance or operational purposes.

5.8 Any sample, test, analysis, inspection or classification carried out by or on behalf of the Company shall, in the absence of manifest error, be conclusive evidence of the nature, composition, classification and condition of the relevant Goods or Buyer Materials. The Buyer shall pay the cost of any sampling, testing, analysis, inspection, storage, quarantine, treatment, return, redirection or disposal where the Goods or Buyer Materials are found or reasonably suspected to be misdescribed, contaminated, non-compliant or unsuitable.

6 DELIVERY

6.1 Where the Company delivers Goods to the Buyer, delivery shall be completed on arrival at the Delivery Point, provided that where the Contract requires discharge by or on behalf of the Company, delivery shall be completed on the earlier of discharge of the Goods or the time at which discharge is prevented, delayed or refused for any reason attributable to the Buyer.

6.2 Delivery tickets, weighbridge tickets, electronic proof of delivery (EPOD), GPS records, dispatch records and loading records shall be conclusive evidence of delivery, quantity and time of delivery unless the Buyer notifies the Company in writing within 24 hours of delivery. In the absence of such notice, the Buyer shall be deemed to have accepted the delivery in full and without discrepancy.

6.3 If the Buyer collects the Goods or arranges collection, delivery shall be completed on loading of the Goods at the Company’s premises.

6.4 If the Company arranges a carrier or haulier company to collect or deliver the Goods, the Delivery Point will be the location where the Goods are loaded onto the carrier.

6.5 Under condition 6.3 and condition 6.4, delivery is completed on the loading of the Goods at the Delivery Point.

6.6 Any dates or times specified by the Company for delivery or collection are estimates only. Time for delivery or collection shall not be of the essence and delay shall not entitle the Buyer to terminate the Contract, reject the Goods, refuse payment, or claim damages, subject always to condition 13.3.

6.7 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

6.8 If for any reason attributable to the Buyer the Company is unable to deliver, unload, collect, process or otherwise perform on the estimated date, including where the Buyer has failed to provide appropriate instructions, documents, licences, authorisations, access, space, labour or equipment:

6.8.1 risk in the Goods shall pass immediately to the Buyer;

6.8.2 the Goods and/or Services shall be deemed delivered or performed;

6.8.3 the Company may store, hold, transport, return, redirect or otherwise deal with the Goods at the Buyer’s risk and cost; and

6.8.4 the Buyer shall pay all resulting storage, demurrage, waiting time, aborted delivery, wasted journey, re-delivery, return, insurance and administration costs on demand.

6.9 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading and/or unloading the Goods unless the Delivery Point is as specified under condition 6.4.

6.10 The Company may deliver the Goods by separate instalments. Each separate instalment shall be:

6.10.1 a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment; and

6.10.2 invoiced and paid for in accordance with the provisions of the Contract.

6.11 The Company shall be entitled to determine the route and manner of delivery of the Goods and shall for the purpose of Section 32(2) of the Sale of Goods Act 1979 be deemed to have the Buyer’s authority to make such contract with any carrier as to the Company may seem reasonable. If the route involves sea transit the Company shall not be obliged to give the Buyer the notice specified in Section 32(3) of the Sale of Goods Act 1979.

6.12 Where the Goods are handed to a carrier for carriage to the Buyer any such carrier shall be deemed to be an agent of the Company and not of the Buyer for the purposes of Sections 44 and 45 of the Sale of Goods Act 1979 only, and not for any other purpose. The carrier shall not otherwise be treated as the agent of the Company, and the Company shall not be liable for any act or omission of the carrier or for any loss, damage, deterioration or contamination of the Goods occurring in transit.

6.13 No liability (whether in contract, for negligence or otherwise howsoever) for non-delivery, loss or damage to the Goods occurring prior to delivery or for any claim that Goods are not in accordance with the Contract will attach to the Company unless claims to that effect are notified in writing by the Buyer to the Company (and in the case of claims for loss or damage with a copy to the carrier if the Company’s own vehicles have not been used to deliver the Goods) in accordance with the following timescales:

(a) claims for obvious defects, quantity discrepancies, or delivery non-compliance apparent on reasonable inspection: within 24 hours of delivery;

(b) claims for non-delivery: within 7 days of the date when the Goods would in the ordinary course of events have been received;

6.14 In the event of a valid claim for loss, damage or non-compliance with the Contract the Company undertakes as its option either to reprocess or replace the Goods at its expense but shall not be under any further or other liability to any person in connection with such non delivery, loss, damage or non-compliance.

6.15 If the Buyer fails to give notice in accordance with condition 6.13 (including sub-paragraphs (a), (b) and (c) thereof) above the Goods shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly and all claims in respect of loss, damage or non-compliance shall (save as set out in conditions 12 and 13 below) thereafter be wholly barred.

6.16 The Buyer shall be responsible for ensuring that any site, location or transport arrangement used for delivery complies with Environmental Legislation. The Buyer shall be liable in accordance with condition 5.7 for any breach of this obligation.

6.17 Where the Goods are carried by a carrier or haulier (whether nominated or arranged by the Company or by the Buyer), the carrier or haulier shall be solely responsible for the Goods in transit from loading at the Delivery Point until unloading at the Buyer’s premises or other destination, including responsibility for the safe and proper carriage of the Goods and for any loss of, damage to, delay to, deterioration of or contamination of the load occurring during transport. Risk in the Goods having passed to the Buyer on delivery in accordance with conditions 6.4, 6.5 and 8.1, the Company shall have no liability for any loss, damage, delay, deterioration or contamination of the Goods arising after loading at the Delivery Point, and any claim by the Buyer in respect of such loss, damage, deterioration or contamination in transit shall lie against the carrier or haulier and be notified in accordance with condition 6.13.

7 NON-DELIVERY

7.1 The quantity, weight and/or volume of any consignment of Goods as recorded by the Company, its supplier, its weighbridge, its dispatch records or its nominated carrier at the point of despatch, loading or collection shall, in the absence of manifest error, be conclusive evidence of the quantity, weight and/or volume supplied.

7.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within seven days of the date when the Goods would in the ordinary course of events have been received.

7.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

8 RISK/TITLE

8.1 Risk in the Goods shall pass to the Buyer from the time of delivery.

8.2 Title to the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:

8.2.1 the Goods; and

8.2.2 all other sums which are or which become due to the Company from the Buyer on any account.

8.3 Until title to the Goods has passed to the Buyer, the Buyer shall:

8.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;

8.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;

8.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

8.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.

8.4 The Buyer may resell the Goods before title has passed to it solely on the following conditions:

8.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and

8.4.2 any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.

8.5 The Buyer’s right to possession of the Goods shall terminate immediately if:

8.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a 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; or

8.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations;

8.5.3 the Buyer fails to pay any amount due under the Contract or any other contract between the parties, is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or ceases to trade;

8.5.4 the Buyer encumbers or in any way charges any of the Goods.

8.6 The Company shall be entitled to recover payment for the Goods notwithstanding that title of any of the Goods has not passed from the Company.

8.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.

8.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.

8.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition shall remain in effect.

8.10 The Buyer shall not mix, process, incorporate, blend, stockpile or resell Goods before title has passed unless acting in the ordinary course of business. If the Buyer does so mix, process, incorporate, blend, stockpile or resell Goods before title has passed:

(a) the Buyer shall immediately notify the Company in writing identifying the Goods concerned and the nature of the mixing, processing, incorporation, blending, stockpiling or resale;

(b) the Buyer shall hold the proceeds of any resale on trust for the Company to the extent of all sums due and outstanding to the Company in respect of those Goods, so far as legally permissible;

(c) the Buyer shall keep such proceeds in a separate designated bank account, clearly identifiable as held on trust for the Company, and shall not mix them with the Buyer’s own monies or the monies of any third party; and

(d) the Buyer shall pay to the Company from such proceeds, on demand, a sum equal to all sums due and outstanding to the Company in respect of those Goods.

The obligations in this condition 8.10 shall survive termination of the Contract.

9 PRICE

9.1 Unless otherwise agreed by the Company in writing, the price for the Goods and/or Services shall be the price set out in the quotation provided by the Company in relation to the Order.

9.2 The price payable for Goods and/or Services delivered or performed by way of instalments shall be the price set out in the quotation provided by the Company in relation to the Order.

9.3 All amounts payable by the Buyer under the Contract are exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance, all of which the Buyer shall pay in addition when it is due to pay for the Goods and/or Services.

9.4 The Company may, on written notice to the Buyer at any time before delivery or performance, increase the price to reflect any increase in the cost of the Goods and/or Services due to:

(a) any factor beyond the Company’s control, including increases in the cost of raw materials, fuel, labour, haulage, energy, landfill tax, aggregates levy, disposal charges, regulatory charges, import duties or exchange rates;

(b) any request by the Buyer to change the delivery date, quantities, specification, Services, site requirements or sequence of performance;

(c) any delay caused by any instructions of the Buyer or failure of the Buyer to provide adequate information or access; or

(d) any change in law or regulatory requirement.

10 RETURNS

10.1 Goods cannot be returned without the Company’s prior written agreement and must be in the same condition as when delivered; in such circumstances the Goods shall be returned to the Company’s place of business or a location as agreed between the parties at the Buyer’s expense, subject to a handling charge which will be set by the Company in each case.

11 PAYMENT

11.1 Payment of the price for the Goods and/or Services is due in pounds sterling 30 days following the date of the invoice, or such other terms as shall be agreed in writing by a Director of the Company.

11.2 The Company may invoice the Buyer at any time on or after dispatch of the Goods, completion of delivery, deemed delivery, performance of the Services, or the occurrence of any event under condition 6.8.

11.3 Time for payment by the Buyer under the Contract shall be of the essence.

11.4 No payment shall be deemed to have been received until the Company has received such payment in cleared funds.

11.5 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

11.6 For Goods and/or Services delivered or received in instalments, the Company shall be entitled to invoice each instalment as and when delivery or receipt has been made and payment shall be due in respect of each instalment where a delivery or receipt has been made notwithstanding non-delivery of other instalments. Should there be any default by the Buyer the payment of any instalment due or failure to give delivery instructions in respect of any quantity of goods undelivered then the whole balance of the price for all Goods and/or Services shall become due immediately.

11.7 The Buyer shall pay all amounts due under the Contract in full, in cleared funds, without any set-off, counterclaim, deduction or withholding of any kind, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, except as required by law.

11.8 If the Company reasonably considers the Buyer’s financial standing to have deteriorated, or if the Buyer exceeds any credit limit, the Company may require advance payment, cash on delivery, security, a parent company guarantee, or other credit support as a condition of continuing performance.

11.9 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8% above the Bank of England base lending rate from time to time, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

12 QUALITY

12.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.

12.2 The Company warrants that (subject to the other provisions of these conditions) on delivery the Goods shall:

12.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

12.2.2 be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.

12.3 The Company shall not be liable for a breach of the warranty in condition 12.2 unless:

12.3.1 the Buyer gives written notice of the defect in the Goods to the Company within 24 hours of delivery where the defect is or should have been apparent on reasonable inspection at delivery, or within 7 days of discovery where the defect is latent and not apparent on reasonable inspection at delivery, in either case confirming that the Goods do not comply with the warranty in condition 12.2;

12.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods; and

12.3.3 the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost for the examination to take place there.

12.4 The Company shall have no liability for breach of warranty if:

(a) the Buyer uses the Goods after the defect is or should have been discovered;

(b) the defect arises from failure to follow instructions or good practice;

(d) the Goods are altered without consent; or

(e) the Goods comply with any specification provided by or on behalf of the Buyer.

12.5 Subject to condition 6, if any of the Goods do not conform with the warranty in condition 12.2 the Company shall at its option replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Buyer’s expense return the Goods or the part of such Goods which is defective to the Company.

12.6 If the Company complies with condition 12.5 it shall have no further liability for a breach of the warranty or any of the warranties in condition 12 in respect of such Goods.

12.7 Where goods are for delivery by instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.

12.8 Except for the express warranty set out in condition 12.2, all warranties, conditions and other terms implied by statute, common law or otherwise (including any implied terms as to satisfactory quality, fitness for any particular purpose, or correspondence of the Goods with any description or sample) are, to the fullest extent permitted by law, excluded from the Contract.

13 LIMITATION OF LIABILITY

13.1 Subject to conditions 4, 5, 6, 7, 8 and 12, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Buyer in respect of:

13.1.1 any breach of these conditions;

13.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods;

13.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract; and

13.1.4 the provision of any Service.

13.2 The Company has given warranties in this Contract and commitments as to compliance of the Goods and Services in conditions 4 and 12. Except as expressly provided in this Contract, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.

13.3 Nothing in these conditions excludes or limits the liability of the Company:

13.3.1 for death or personal injury caused by the Company’s negligence; or

13.3.2 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or

13.3.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or

13.3.4 for fraud or fraudulent misrepresentation.

13.4 Subject to conditions 13.2 and 13.3:

13.4.1 the Company’s total aggregate liability shall not exceed the lower of:

(a) the Contract price; and

(b) the sums paid in the 12 months preceding the claim;

13.4.2 the Company shall have no liability for loss of profit, revenue, business, contracts, opportunity, goodwill, anticipated savings, wasted expenditure, loss of use, or any indirect or consequential loss;

13.4.3 Nothing in this Contract shall limit or exclude the Buyer’s liability under Condition 5.7 in respect of any breach of Environmental Legislation or any environmental damage, contamination, or regulatory enforcement action arising from the Goods supplied by the Buyer.

13.4.4 Any claim arising under or in connection with the Contract must be brought within 6 months of the date on which it arose, failing which it shall be absolutely barred.

14 ASSIGNMENT

14.1 The Company may assign the Contract or any part of it to any person, firm or company.

14.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company, such consent not to be unreasonably withheld.

15 FORCE MAJEURE

15.1 If the Company is prevented, hindered or delayed from carrying on its business or performing the Contract by a Force Majeure Event, it may without liability to the Buyer:

(a) defer the date of performance;

(b) suspend performance;

(d) allocate available stock, materials, vehicles, plant, labour or capacity between its customers as it thinks fit; and/or

(e) increase the price to reflect any increase in the Company’s cost of performance caused directly or indirectly by the Force Majeure Event, provided the Buyer may terminate the affected part of the Contract by written notice if it does not accept the revised price within 3 Business Days.

If the Force Majeure Event continues for more than 90 days, either party may terminate the affected part of the Contract by written notice.

16 TERMINATION

16.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

16.1.1 the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

16.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

16.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

16.1.4 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

16.2 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.

16.3 The Company may suspend performance or refuse further Orders if:

(a) the Buyer fails to pay;

(b) the Buyer breaches conditions 2.8, 2.9, 5, 6.16 or 11;

(d) the Company reasonably believes any of the above will occur.

16.4 The Contract may not be cancelled except by agreement in writing of both parties and upon the payment to the Company of such amount as may be necessary to indemnify the Company for any losses resulting from the said cancellation.

17 CONSEQUENCES OF TERMINATION

17.1 On termination or expiry of the Contract for any reason:

17.1.1 the Buyer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt;

17.1.2 the Buyer shall return all of Goods which have not been fully paid for. If the Buyer fails to do so, then the Company may enter the Buyer’s premises and take possession of them. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

17.1.3 The Company shall have a general and particular lien over any Goods or property of the Buyer in its possession for all sums due from the Buyer under the Contract or any other contract, and may on 7 days’ written notice sell such Goods or property and apply the proceeds towards satisfaction of the sums due, accounting to the Buyer for any surplus.

17.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

17.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

18 GENERAL

18.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

18.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

18.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

18.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

18.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

18.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

18.7 This agreement constitutes the entire agreement between the parties with respect to the matters dealt with herein and supersedes any previous agreement between the parties in relation to such matters. Save in respect of statements made fraudulently the Buyer acknowledges that it has not relied on any statement, representation, assurance or warranty that is not set out in this Contract.

18.8 Except as set out in this Contract, any variation of it must be in writing and signed by a director of the Company.

18.9 Anti-Bribery, Sanctions and Modern Slavery

The Buyer shall comply with all applicable anti-bribery, anti-corruption, sanctions, anti-tax evasion and modern slavery laws (including the Bribery Act 2010, the Modern Slavery Act 2015 and applicable financial sanctions regimes) and shall not do or omit to do anything which may cause the Company to be in breach of such laws. The Company may suspend performance or terminate the Contract immediately by written notice where it reasonably believes that continuing performance may expose it to legal, regulatory, sanctions, criminal, financial or reputational risk.

18.10 Data Protection

Each party shall comply with applicable data protection laws (including the UK GDPR and the Data Protection Act 2018). The Buyer shall ensure that any personal data provided to the Company may lawfully be processed for contract administration, delivery, regulatory compliance, record keeping, regulatory disclosure and debt recovery purposes. The Company’s privacy notice is available at www.gmat.co.uk or on request.

19 COMMUNICATIONS

19.1 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 email:

19.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company or if sent by email to the following address info@gmat.co.uk; or

19.1.2 (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, or if sent by email the email address, of the Buyer set out in any document which forms part of the Contract or such other address or email address as shall be notified to the Company by the Buyer.

19.2 Communications shall be deemed to have been received:

19.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or

19.2.2 if delivered by hand, on the day of delivery; or

19.2.3 if sent by email, at the time of transmission if sent during Business Hours, or at 9.00am on the next Business Day if sent outside Business Hours.

19.3 Communications addressed to the Company shall be marked for the attention of “The Managing Director”.

www.gmat.co.uk

TERMS & CONDITIONS