Terms & Conditions Of Sale

1.     Interpretation

1.1  In these conditions the following words have the following meanings:-

“Buyers” – the person(s), firm or company who purchases Goods from the Sellers.

“Sellers” – Richard Baker Harrison Limited

“Contract” – any contract between Sellers and Buyers for the Sale & Purchase of Goods,

incorporating these Terms & Conditions.

“Conditions” – these Terms and Conditions.

“Goods” – any Goods (including any part or parts of them) agreed in the Contract to be  supplied to Buyers by Sellers.

1.2  In these Conditions references (a) to any statute or statutory provision shall, unless the

context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced, (b) to the masculine include the feminine and the neuter and (c) to the singular include the plural and vice versa as the context admits or requires.

1.3 In these Conditions headings will not affect the construction of these conditions.

2.     Application of Terms

2.1  Subject to any variation under Condition 2.2 the Contract will be on these Conditions to the

exclusion of all other Terms and/or Conditions (including any terms and/or conditions which the Buyers purport to apply under any Purchase Order, Confirmation of Order, Specification or other document, none of which terms and/or conditions shall be incorporated into the contract simply as a result of such document being referred to in the Contract).

2.2  These Conditions apply to all Sellers’ sales and any variation to these Conditions and any

Representations (whether oral or written) about Goods shall have no effect unless expressly agreed in writing and signed by a Director of Sellers.  Nothing in these Conditions will exclude or limit Sellers’ liability for fraudulent misrepresentation.

2.3  Each order for Goods by Buyers from Sellers shall be deemed to be an offer by Buyers to

purchase Goods subject to these Conditions.

2.4  No order placed by Buyers shall be deemed to be accepted by Sellers until a written

Acknowledgement of Order is issued by Sellers or (if earlier) Sellers deliver Goods to Buyers.

2.5  Buyers must ensure that the terms of their order and any applicable specification are

complete and accurate.

2.6  Any quotation is given on the basis that no contract will come into existence until Sellers

despatch a written Acknowledgement of Order to Buyers; neither packaging nor labelling shall form part of the description of Goods, for which Sellers shall have no liability whatsoever.  Any quotation is valid for a period of 28 days only from its date, provided Sellers have not previously withdrawn it.

3.     Description

3.1The description of Goods shall be set out in Sellers’ quotation.

3.2 All descriptive matter, specifications and advertising issued by Sellers (whether in

catalogues, brochures or otherwise) is issued or published for the sole purpose of giving an approximate idea of Goods described in them and they will not form part of this Contract.

4.     Delivery

4.1  Except in the case of sales ex-warehouse, Delivery shall take place at the Buyers’ premises or such other premises nominated by Buyers.

4.2  Each delivery of Goods shall be deemed to be a separate contract and the failure to make delivery of any one instalment shall not invalidate the contract nor entitle Buyers to be discharged.

4.3  In view of possible dependence upon availability of raw materials and/or possible late deliveries by suppliers, any dates specified by Sellers for delivery of Goods are intended to be estimates only but Sellers will use their best endeavours to meet such dates.

4.4  If Sellers deliver to Buyers a quantity of Goods of up to 5% more or less than the quantity accepted by Sellers, Buyers shall not be entitled to object or to reject Goods or any of them by reason of a surplus or shortfall and shall pay for such Goods at the pro-rata Contract rate.

4.5  If for any reason Buyers will not accept and/or fail to take prompt delivery of any Goods after Buyers are aware of readiness for Delivery or Sellers are unable to deliver Goods on time because Buyers have not timeously provided or lodged appropriate instructions, documents, licences, authorisations or delivery orders.

4.5 (i)  Risk in Goods will pass to Buyers (including for loss or damage caused by Sellers’

negligence);

4.5 (ii) Goods will be deemed to have been delivered

4.5 (iii) Sellers may store Goods until physical delivery whereupon Buyers will be liable

for all related costs and expenses (including, without limitation, storage and  insurance) or Sellers may re-sell goods and Buyers shall forthwith upon receiving notice thereof re-pay to Sellers any loss which Sellers thereby suffer.

4.6  Where necessary Buyers will provide at their own expense at the Delivery Point adequate and appropriate equipment and labour for loading/unloading Goods.

4.7  Subject to any provisions to the contrary in these Conditions Sellers will not be liable for any

direct, indirect or consequential loss (all three of which terms include, without limitation, loss or profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by a delay in delivery of Goods (even if caused by  Sellers’ negligence.

5.     Non-Delivery

5.1  All claims in respect of short or non-delivered Goods must be notified in writing to Sellers and

carriers (where loss has occurred in transit) within 3 working days of the receipt of the delivery in question or when in the ordinary course of events Goods would have been received, failing which Sellers have no liability whatsoever (even for its own negligence) for such claims.  Furthermore,  Sellers cannot accept responsibility (even for its own negligence) for such goods unless the carrier’s receipt note is appropriately and unambiguously endorsed at the time of delivery.

5.2  The quantity of any consignment recorded as despatched to Buyers shall be conclusive evidence of the quantity received by Buyers on delivery, unless Buyers can provide conclusive evidence proving the contrary.

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

6.     Risk/Title

6.1  Goods are at the risk of Buyers from the time of delivery.

6.2 Legal and beneficial ownership of Goods shall not pass to Buyers until Sellers have received

in full (in cash or cleared funds) all sums due to it in respect of:

6.2 (i)  Goods; and

6.2  (ii) All other sums which are or which become due to Sellers from Buyers on any

account.

6.3  If payments received from Buyers are not stated to refer to a particular invoice the Seller may

appropriate such payments to any outstanding invoice.  In the case of Goods of similar description, Goods on-sold or used in manufacture shall be deemed to be on-sold or used in manufacture in sequential order of payment.

6.4 Until ownership of Goods has passed to Buyers, Buyers must :

6.4 (i)  hold Goods on a fiduciary basis as Sellers’ Bailee;

6.4 (ii)  store Goods (at no cost to Sellers) separately from all other goods of

Buyers or any third party in such a way that they remain readily identifiable as Sellers’ property;

Sellers shall be entitled to enter Buyers’ premises on reasonable notice to verify Buyers’ compliance with this clause:

6.4 (iii) not destroy, deface or obscure any identifying mark or packaging on or

relating to the Goods;

6.4 (iv)  maintain Goods in a satisfactory condition and keep them insured on

Sellers’ behalf for their full price against all risks to the reasonable satisfaction of Sellers; on request Buyers shall produce the policy of insurance to Sellers; and

6.4 (v) hold the proceeds of the insurance referred to in condition 6.2 (iv) on trust

for Sellers and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

6.5  Buyers right to possession of the Goods shall terminate immediately and Sellers shall have

the right to cancel any Contract with Buyers if:

6.5(i)    buyers have a bankruptcy order made against them or make an

arrangement or composition with its creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convene a meeting with creditors (whether formal or informal), or enter into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purposes only of reconstruction or amalgamation, or have a receiver and/or manager, administrator or administrative receiver appointed of their undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of Buyers, or for the granting of an administration order in respect of Buyers or any proceedings are commenced relating to the insolvency or possible insolvency of Buyers or Sellers have reasonable cause to believe that any such event is likely to occur; or

6.5 (ii)  Buyers suffer or allow any execution, whether legal or equitable, to be

levied on its property or obtained against it, or fail to observe/perform any of their obligations under the Contract or any other Contract between Sellers and Buyers, or are unable to pay their debts within the meaning of section 123 of the Insolvency Act 1986 or Buyers cease to trade or;

6.5 (iii) Buyers encumber or in any way change any Goods.

6.6       Sellers shall be entitled to recover payment for Goods notwithstanding that ownership of

Goods is not passed from Sellers.

6.7       Buyers grant Sellers, 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 Buyers rights to possession have terminated, to recover and/or dispose of them to discharge any sums owed to Sellers under this or any other Contract.

7.     Price

7.1           Unless otherwise specifically agreed in writing the price for Goods shall be set out in

Sellers’ invoice and Sellers sell on condition that payment shall be made by Buyers not later than 20th day of the month following invoicing and delivery – or in the case of sales ex-warehouse the date of transfer of Goods to Buyers.

7.2       The price for Goods shall be exclusive of any Value Added Tax and is based upon the stated limitation of liability herein.

8.     Payment

8.1           Time for payment shall be of the essence and all payments due under the Contract shall

be made without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless Buyers have a valid court order requiring an amount equal to such deduction to be paid by Seller to Buyers.

8.2       All payments payable to Sellers under the Contract shall become due immediately upon termination of this Contract despite any other provision.

8.3       No payment is deemed received until Sellers have received cash or cleared funds.

8.4           If Buyers fail to pay Sellers any sum due pursuant to the Contract Buyers will be liable to

pay interest to Sellers on such sum from the due date for payment at the annual rate of 1% above the base lending rate from time to time of National Westminster Bank (or successor) accruing on a daily basis until payment is made, whether before or after any judgment.  Sellers reserve the alternative right to claim interest under The Late Payment of Commercial Debts (Interest) Act 1998.

9.     Lien

9.1       Sellers reserve their lien and right of disposal upon all Goods whilst in ship, store, or in transit to Buyers’ destination whether previously transferred or not to Buyers’ account.

9.2           In addition to any right of lien to which Sellers may by law be entitled Sellers shall be

entitled to a general lien on all Goods of Buyers or any associated company in Sellers’ possession (including Goods sold by Sellers to Buyers and paid for in full by Buyers) for the unpaid price of any other Goods sold and delivered to Buyers by Sellers under the same or any other Contract and shall be entitled to such lien on such Goods until all Sellers’ claims arising out of its business relations with  Buyers shall have been completely fulfilled or settled.

9.3           Sellers shall have in respect of any Goods over which they have a lien the right to (i) put

any such goods into a saleable state (ii) sell such Goods on such terms as Sellers see fit (iii) retain from the sale proceeds sufficient to pay all monies due from Buyers or any associated company to Sellers (including any costs incurred in putting the Goods into a saleable state and expenses of the sale).

10.     Quality

10.1        Reasonable care is taken by Sellers to ensure that all Goods supplied are of

merchantable quality.  Nevertheless, Sellers draw attention to the fact that the specification and condition of natural mineral products cannot be guaranteed and defects of quality can and do exist. It is, therefore, stressed that all deliveries must be thoroughly examined and tested prior to use.  Sellers do not accept liability for consequential (including financial) or any other loss or damage (direct or indirect) whatsoever or howsoever arising out of, from, or in connection with the failure of Buyers to carry out such an examination or from Buyers using Goods discovered to be of doubtful quality or not following good practice in any respect whatsoever or altering Goods without written consent of Sellers.

10.2        Any claim for alleged unsatisfactory Goods must be notified in writing to Sellers/and

carriers (where the defect is as a result of damage in transit) within 3 working days of the time when  Buyers discover or ought to have discovered any defect, and the Sellers must be given reasonable opportunity after receiving the Notice of examining such Goods and Buyers (if asked to do so by Sellers) shall return such Goods to Sellers place of business at Sellers expense for examination to take place there, failing which Sellers shall have no liability for consequential (including financial) or any other loss (direct or indirect) whatsoever or howsoever arising for any express or implied warranty or condition of quality.

10.3        In any event, Sellers specifically restrict their liability for unsatisfactory Goods to

accepting the return of any such Goods at Sellers’ expense in which case they will, at their option replace Goods or alternatively credit the value involved (at pro rata contract rate) plus 10% upon compliance with this Condition.  Upon compliance with this Condition Sellers shall have no further liability whatsoever or howsoever arising even for its own negligence.

10.4        Sellers are selling materials which can be used for a diversity of purposes, and give no

guarantee as to the fitness of the materials for any particular purpose.  Sellers do not hold themselves out as having any special skill or judgment in connection with the uses to which any Buyer may put such materials and Buyers agree that it is unreasonable for them to rely on Sellers’ skill or judgment as to any matter connected with the purpose to which the materials supplied my be put.

11.     Limitation of Liability

11.1        Subject to Condition 10 (except as indicated in Condition 11.3) and with the exception of

liability for death or personal injury caused by Sellers’ negligence or fraudulent misrepresentation, the following provisions set out the entire financial liability of Sellers (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Buyers in respect of:-

Any breach of these Conditions; and

Any representation, statement or tortuous act or omission, including negligence arising under, out of, or in connection with the contract.

11.2        Sellers total liability in Contract, tort (including negligence or breach or statutory duty),

misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price of the Goods; and

11.3        Sellers shall not in any circumstances (including any circumstances falling under

Condition 10) whatsoever or howsoever arising be liable to Buyers for any indirect or consequential loss or damage (whether for loss or profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

11.4        All warranties, conditions, and other terms implied by statute or common law (save for the

Condition implied by Section 12 of The Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

11.5     In the event any sale is concluded with a consumer, the consumer’s statutory rights are not affected.

12.     Force Majeure

12.1        Sellers shall not be responsible for any loss or damage whatsoever or howsoever arising

out of or in connection with delay caused by strikes, lock-outs or other labour disputes, war, fire, floods, government actions, acts of terrorism, protests, riot, civil commotion, explosion, epidemics, restraints, delays or disturbances affecting carriers or inability or delay in obtaining supplies of adequate materials, accidents, Acts of God, interferences, or any other event whatsoever beyond Sellers’ control and deliveries may be suspended for the duration of any such event and or such period as Sellers may deem reasonable thereafter.  Any delivery suspended shall be taken by Buyers at the rate specified in the Contract, as soon as it is possible to resume, but resumed deliveries shall be liable to suspension on the same grounds as the deliveries originally stipulated in the Contract.  Sellers reserve the right to cancel or terminate the Contract by notice in writing to Buyers if the event in question continues for a continuous period in excess of 30 days.

13.     International Contracts

In the case of Goods sold under an International Supply Contract as defined in the Unfair Contract Terms Act 1977 S.26) the relevant Incoterms 2000 shall apply insofar as they do not conflict with these Conditions.

14.     Assignment

14        Buyers shall not be entitled to assign the Contract or any part of it without the prior written consent of Sellers.  Sellers may assign the Contract, or any part of it, to any person firm or company.

15.     General

15.1     Each right or remedy of Sellers under the contract is without prejudice to any other right or remedy of Sellers whether under the Contract or not.

15.2     If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partially 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 provisions shall continue in full force and effect.

15.3     Failure or delay by Sellers in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

15.4     Any waiver by Sellers of any breach of, or any default under, any provision of the Contract by Buyers will not be deemed a waiver of any subsequent breach or default and will, in no way, affect the other terms of the Contract.

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

15.6     The formulation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and Buyers submit to the exclusive jurisdiction of the English Courts.

16.     Communications

16.1     All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission.

16.1 (i) (in case of communications to the Sellers) to their registered office or such

changed address as shall be notified to Buyers  by Sellers; or

16.1 (ii) (in the case of the communications to Buyers) to the registered office of the

addressee (if it is a company) or (in any other case) to any address of Buyers set out in any document which forms part of this Contract or such other address as shall be notified to the Sellers by Buyers.

16.2     Communications shall be deemed to have been received :

16.2 (i) If sent by pre-paid first class post, 2 days (excluding Saturdays, Sunday and bank and public holidays) after posting (exclusive of the day of posting);

16.2 (ii) If delivered by hand, on the day of delivery;

16.2. (iii) If sent by facsimile transmission on a working day prior to 4.00 p.m., at the time

of transmission and otherwise on the next working day.

16.3     Communications addressed to Sellers shall be marked for the attention of the Managing Director.