1.1 Unless otherwise agreed, the sale and purchase of the goods (the “Product”) to be supplied by Hanly Quarries (the “Company”) to the buyer (the “Buyer”) shall be on these conditions (the “Contract”) to the exclusion of all other terms and conditions (including any terms and conditions the Buyer purports to apply under any purchase order, confirmation or order, specification or other document).
2. Orders & Specifications
2.1 Each order or acceptance of a quotation for the Product by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy the Product subject to these conditions. No order placed by the Buyer shall be deemed to be accepted by Company until the Company delivers the Product to the Buyer. The Buyer shall ensure that the terms of its order and any applicable specifications are complete and accurate.
2.2 Unless otherwise agreed, any quotation is valid for a period of 30 (thirty) days only from its date, provided the Company has not previously withdrawn it.
2.3 If the Product is to be manufactured or any process is to be applied to the Product by the Company in accordance with a specification submitted by the Buyer, the Buyer shall indemnify and hold harmless the Company, its directors, officers, employees, shareholders, successors and assigns against all loss, damages, costs, expenses incurred in connection with any claim which results from the Company’s use of the Buyer’s specification.
2.4 The Company reserves the right to make any changes in the specification of the Product which are required to conform with any applicable laws, rules or regulations, or, where the Product is to be supplied to the Company’s specification, which do not materially affect its quality or performance.
3. Description
3.1 The description of the product shall be as set out in the Company’s quotation. Any typographical, clerical or other error or omission on any document issued by the Company shall be subject to correction by the Company without incurring any liability.
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 or brochures are issued or published for the sole purpose of giving an approximate idea of the Product described in them. They shall not form part of the Contract.
3.3 Any advice or recommendation given by, or statement or representation made by, the Company or its employees or agents to the Buyer or its employees or agents, relating to the Product which is not confirmed in writing in this Contract, is followed or acted upon entirely at the Buyer’s own risk, and the Company shall not be liable for any unconfirmed advice or recommendation.
4. Delivery
4.1 Delivery of the Product shall be made by the Buyer collecting the Product at the Company’s premises, or if some other place for delivery is agreed by Company, by the Company delivering the Product to that place.
4.2 The Buyer shall provide suitable roadways and entrances to the delivery site. The Buyer shall be responsible for all shipping charges in any event. For sites beyond the curb line, the Company assumes no liability for footpaths, driveways, roadways or other property and the Buyer agrees to indemnify and hold harmless the Company, its directors, officers, employees, shareholders, successors and assigns against all claims, liability, loss or expense including legal fees and expenses incurred as a result of damage.
4.3 Any times specified by the Company for delivery of the Product are intended to be an estimate only and time for delivery shall not be made of the essence by notice.
4.4 If the Company fails to deliver a Product (or any instalment) or any reason other than any cause beyond the Company’s reasonable control or the Buyer’s fault, and the Company is accordingly liable to the Buyer, the Company’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of this Product.
4.5 The Buyer shall provide at the delivery site and at its expense, adequate and appropriate equipment and manual labour for loading and unloading the Product.
4.6 The quantity of any consignment of Product as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving to the contrary.
4.7 Delivery dockets and all related documentation shall be retained by the Company in electronic versions only.
5. Risk/Title
5.1 Risk in the Product shall pass to the Buyer at the time of delivery, or if the Buyer wrongfully fails to take delivery of the Product, the time when the Company has tendered delivery of the Product.
5.2 Ownership of the Product 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 (a) the Product, and (b) all other sums which are or which become due to the Company from the Buyer on any account.
5.3 Unless ownership of the Product has passed to the Buyer, the Buyer shall, to the extent that it is possible to do so, keep the Product insured on the Company’s behalf for its full price against all risks to the reasonable satisfaction of the Company.
5.4 The Buyer’s right to possession of the Product shall terminate immediately if the Buyer goes into liquidation, or a receiver, administrator, or similar officer is appointed over all or substantially all of the assets of the Buyer, or anything analogous to any of the above under the laws of any applicable jurisdiction occurs in relation to the Buyer. The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Product is or may be stored in order to inspect same, or where the Buyer’s right to possession has terminated, to recover them.
6. Price and Payment
6.1 Unless otherwise agreed, the price for the Product shall be the Company’s relevant price as at the date of the order. The price of the Product shall be exclusive of any VAT.
6.2 The Company reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Product to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, material or other costs of manufacture).
6.3 All returns of Product are subject to a handling charge and carriage, if applicable.
6.4 The Company shall be entitled to invoice the Buyer for the price of the Product after delivery of the Product. Some accounts may be subject to a credit charge which will be agreed in advance between the Company and the Buyer.
6.5 Payment of the price for the Product shall be due in Euro and shall be due, unless otherwise agreed, within 30 (thirty days) of the date of the invoice in accordance with the instructions of the Company. Time for payment shall be of the essence. Claims in relation to errors in invoicing must be notified to the Company within 7 (seven) days of the date of the invoice. No payment shall be deemed to have been received until the Company has received cleared funds.
6.6 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
6.7 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Company shall be entitled to cancel the Contract or suspend any further deliveries to the Buyer and charge interest from the due date for payment at the annual rate of 3% above the refinancing base rate from time to time of Bank of Ireland, accruing on a daily basis until payment is made, whether before or after any judgement.
7. Warranties
7.1 The Company warrants that the Product will comply with the Product specifications at the time of delivery. The Company can only accept liability for breach of this warranty where, (a) the Buyer has notified the Company within 7 days of the delivery of the Product of its failure to comply with the specification and, (b) the Company has been given the opportunity of investigating any alleged defect and of making representations as to any remedial action to be taken.
7.2 The Company does not guarantee uniform colour and texture consistency in Product supplied, as variances in material are inevitable. The Company will not accept responsibility for the naturally occurring phenomenon of efflorescence, which may affect the Product supplied.
7.3 Without prejudice to Clause 7.1 and except where the Product is sold to a person dealing as a consumer, all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8. Limitation of Liability
8.1 The Buyer has been provided with access to the Company’s health and safety and product information guidelines, and acknowledged and agrees that it has read and understood all matters set out therein. The Company shall not be liable to the Buyer for any failure on the part of the Buyer to adhere to such guidelines, and the Buyer hereby agrees to indemnify and hold harmless the Company, its directors, officers, employees, shareholders, successors and assigns against all loss, damage, costs and expenses awarded against or incurred by the Company in connection with a failure by the Buyer to adhere to such guidelines.
8.2 Nothing in these conditions excludes or limits the liability of the Company for any matter for which it would be illegal for the Company to exclude or attempt to exclude its liability.
8.3 The Company’s liability in respect of a failure of the Product to comply with the specifications is limited to the cost of removal and replacement of the Product, which shall be in all circumstances limited to the cost of removing and replacing the Product as laid and shall exclude any additional costs arising from the Buyer having carried out any operation on or over the laid Product. Because of such limitation the Buyer intending to carry out operations which would prevent the removal and replacement of the defective Product or add to the cost of doing so is advised to check that the Product meets the specifications before commencing such operations.
8.4 Subject to Conditions 8.1 and 8.2 and without prejudice to Condition 4.4 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), or otherwise, arising in connection with the performance or contemplated performance of the Contract, or the use or resale of the Product by the Buyer shall be limited to the Contract price. The Company shall not be liable to the Buyer for economic loss, loss of profit, loss of business, or depletion of goodwill 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, or the use or resale of the Product.
9. General
9.1 The Company may assign the Contract or any part of it to any person, firm or company and shall not be entitled to assign the Contract or any part of it without prior written consent.
9.2 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Product ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company.
9.3 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under Contract or not.
9.4 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.
9.5 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be constituted as a waiver of any of its rights under the Contract.
9.6 This Contract and any dispute or claim arising out of or in connection with or its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland and the parties submit to the exclusive jurisdiction of the Irish Courts.
10. Concrete
10.1 In respect of quotations and sales of concrete, the following additional conditions and variations shall apply. The price per cubic metre is based on full loads delivered. A full load is a load of 5 cubic metres or more. For loads less than 5 cubic metres, a small load charge will apply as detailed in the quotation. One small load without surcharge shall be allowed to complete any pour, provided that the day’s delivery to the site is ten cubic metres or more.
10.2 The Buyer must take delivery of concrete at the nearest accessible point to the job site, subject to compliance with applicable safety standards, as determined by the Company.
10.3 The Company will supply concrete in accordance with the delivery docket. All sampling, testing, curing and making must be carried out in accordance with relevant European standards. The Company is not liable for the placing of the concrete. If the concrete does not comply with the agreed requirements or standards, the Company will supply free of charge quantity of concrete equal to the quantity which is shown to be below standard. This shall be the Buyer’s sole right or remedy in such circumstances. The compressive strength shall be the average of tests taken in accordance with the relevant European standards.
10.4 The Company shall not be responsible for the strength, slump or quality of concrete to which additional water, additives or any other material has been added by the Buyer or at his request. All drivers have been instructed not to make alterations to the concrete mix without specific signed authorisation by the Buyer.
11. Blocks & Bricks
11.1 In respect of the delivery of blocks and bricks, the normal delivery load is eighteen tonnes or equivalent. Part loads may be subject to a small load charge or despatched with other deliveries to the vicinity of the job site as and when they arise.
12. Errors and Omissions Expected