Specialist Building Products Limited
(T/A Swish Building Products) Terms and Conditions of Sale

CONDITIONS OF CONTRACT

Governing all contracts for the sale or supply of goods by Specialist Building Products Limited (“the Company”) in these conditions :-

“Buyer” means any person at whose request goods are supplied by the Company, and “goods” means any goods or replacements therefore together with (in the case of contracts for the provision of services) any services/workmanship supplied to the Buyer under the contract. 

These conditions shall apply to every contract entered into with the Company except as varied by express agreement in writing signed by a director or authorised person on behalf of the Company. The headings are for convenience only and shall not affect construction of these Conditions.

1. FORMATION AND PARTIES

(a) The Buyer’s order to the Company is an offer to enter into a contract upon these Conditions. Acceptance occurs and the contract is formed only upon the Company despatching to the Buyer its Acknowledgement of Order or the delivery of the goods whichever is the sooner. Any items or conditions proffered at any time by the Buyer are hereby excluded. A quotation by the Company does not constitute an offer.

(b) The Buyer shall not assign the benefit of the contract without the Company’s prior written consent.

(c) The contract is not cancellable by the Buyer without express written consent of a director or other authorised
person on behalf of the Company.

(d) If the Company agrees cancellation by the Buyer, the Buyer shall indemnify the Company in full against all
expenses incurred up to the time of cancellation together with a reasonable amount by way of liquidated
damages for breach of contract as specified by the Company, such sum being acknowledged by the Buyer as
representing a genuine pre-estimate of the Company’s loss of profit and not in any event to exceed 15% of the
contract price.

2. PRICE

(a) Prices quoted are in accordance with the Company’s current price list and exclusive of Value Added Tax.

(b) The Company reserves the right to vary the price of goods by any amount attributable to a change in or insufficiency of Buyer’s instructions or to any variation in the cost of materials labour transport duties taxes exchange rates or any costs of whatsoever nature between the date of the contract and the date of delivery or completion of payment.

3. DELIVERY

(a) Delivery dates are estimates only. Time of delivery is not of the essence of all the contract. Unless otherwise stated, delivery periods commence from date of Acknowledgement of Order or delivery of the goods whichever is the sooner. The Company shall use it’s reasonable endeavours to deliver the goods by the stated delivery date, but may suspend or delay delivery and shall not be liable for any loss whatsoever in the event of late delivery or non-delivery of goods or any instalment owing to any occurrence whatsoever beyond its control. The Buyer shall not be entitled to refuse to accept later delivery of treat late delivery as a breach of contract.

(b) The Company may at its option deliver by instalments; each instalment shall constitute a separate contract on these Conditions.

(c) Delivery shall take place and risk shall pass upon the earliest of the following

(i) the Company handling the goods to the Buyer or its agent at the Company’s premises, or

(ii) the goods leaving the Company’s premises, or

(iii) on the eighth day following notification that the goods are ready for despatch.

4. LOSS OR DAMAGE IN TRANSIT

(a) The Company shall not be liable for loss or damage to goods in transit unless :-

(i) the Company has agreed to effect delivery to a place other than the Company’s premises, and

(ii) the loss or damage occurs prior to arrival at delivery point, and either

(iii) damage or shortage is reported within 7 days of arrival at delivery point, or

(iv) in the case of total loss, non-arrival is notified to the Company within 7 days after despatch of advice note.

5. STILLAGES

(a) Risk of loss or damage to the Stillage shall pass to the customer at time of delivery.

(b) All Stillages remain the property of the Company and the Buyer shall keep in good condition (fair wear and tear excepted) and store FOC until collected by the Company. The Buyer shall pay to the Company full replacement value of loss or damages whilst in the Buyers possession if not returned to the Company within 30 days and authorises the Company to invoice accordingly.

6. INSPECTION

(a) The Buyer shall inspect the goods immediately upon receipt and shall (unless such inspection cannot be carried out and the delivery note is marked “not examined) subject to paragraph (b) below be deemed to have accepted the goods as delivered.

(b) The Company shall not be liable for defects or shortages discoverable on reasonable inspection unless the Buyer notifies the Company before the expiry of 7 days after receipt and prior to their installation, of any alleged defect or lack of conformity with the contract.

(c) The Company shall make good shortages notified to it under para (b) as soon as reasonably practicable but shall not be liable for any other loss whatsoever arising from such shortage.

(d) The Company’s liability for goods lost or damaged in transit shall in all circumstances be limited to (at the Company’s option) the repair or replacement or crediting the Buyer with the invoice value of the goods in question.

7. WARRANTY

(a) If within 7 days after delivery and prior to their installation a material defect in the goods shall be discovered and :-

(i) The Buyer notifies the Company as soon as practicable after discovery giving particulars and either at its own expense and risk returns the goods to the Company, or (at the Company’s sole option) permits the Company to inspect the same and

(ii) Such defect has arisen from faulty materials employed or workmanship carried out by the Company existing but not discoverable upon inspection at time of receipt, then the Company shall supply replacements or, at its option, credit the Buyer’s account with the Company or refund to the Buyer the purchase price paid for the defective goods.

(b) The Company’s liability for defective goods is limited in all circumstances to (at the Company’s option) delivery of replacements or crediting or refunding of the invoice value to the Buyer and the Buyer shall accept such of the aforementioned remedies as the Company shall proffer as being fulfilment of the Company’s obligations under the contract.

(c) The Company’s liability under this Condition applies only to defects appearing before the Buyer makes any modification or alteration to the goods and whilst the goods are being properly used or stored and in particular (but without limitation) the Company shall not be liable in the case of defects arising from normal deterioration or improper or faulty handling or processing by the Buyer.

(d) The above warranty does not extend to parts, materials or components forming part of the Goods which are not of the Company’s manufacture. In respect of such items, the Buyer shall be entitled only to the benefit of any manufacturer’s warranty or guarantee, the benefit of which the Company is able to obtain.

8. ITEMS SUPPLIED BY BUYER

The Buyer shall be liable for all drawings, specifications and instructions issued to the Company with orders pursuant to the contract and shall indemnify and keep indemnified the Company against all loss directly or indirectly arising out of any error or omission from such drawings, specifications and instructions, and against all costs, claims demands and expenses whatsoever in respect of the infringement or potential infringement of any patent, copyright, registered design or other third party right arising out of the Company’s use of such drawings, specifications or instructions.

9. LIMITS OF LIABILITY

(a) The goods are supplied strictly on the terms that the Buyer has satisfied itself of their suitability for its purposes. The Buyer acknowledges that all specifications and details in catalogues, quotations and acknowledgements of order or similar documents or by word of mouth and all forecasts of performances, howsoever given, are approximate only and do not form part of the contract and that in respect of such specifications, details and forecasts the Company shall be under no liability nor shall the Buyer be entitled to any remedy under the provisions of the Misrepresentation act 1967.

(b) The Company’s liability under Conditions 5 & 6 shall be accepted by the Buyer in lieu of any warranty or condition, whether express or implied by law, as to the quality or fitness for any particular purpose of their goods and, save as provided in these Conditions, the Company shall not be under any liability to the Buyer (whether in contract, tort or otherwise) for any defects in the goods, materials supplied or workmanship performed by the

Company or for any damage, loss, death or injury resulting from such defects and the Buyer shall indemnify the Company against any claims in respect thereof. For the purposes of this paragraph the Company contracts on its own behalf of and as trustee for its sub-contractors, servants and agents.

(c) The company shall not be liable, whether by way of indemnity or by reason of breach of contract, fort or breach of statutory duty or in any other manner for consequential or indirect loss of whatever nature suffered by the Buyer or for special damages, loss of use, (whether complete or partial) of the goods, or loss of profit of any contract.

(d) Nothing in this Condition shall be construed as limiting or excluding the Company’s liability under Part 1 of the Consumer Protection Act 1987 or for death or personal injury resulting from its negligence (as defined in Section 1 of the Unfair Contract terms Act 1977).

Indemnity

(e) The buyer shall indemnify and keep indemnified the Company against all actions, claims, costs, damages, demands and expenses or other loss arising out of a defect in the goods (including without limitation, all liabilities incurred under the Consumer Protection Act 1987) to the extent occasioned or contributed to by any act or omission of the Buyer its servants, agents or persons under its control.

10. RETENTION OF TITLE

(1) Until the Company has received payment In full of all sums owed to it on any account by the Buyer, whether arising out of this or any other contract, legal and beneficial title to the goods shall remain in the Company: such goods are referred to in this condition as “retained goods”.

(1) Retained Goods :-

(a) Shall be at the Buyer’s risk, insured by the Buyer from the date of delivery at its own expense for their full replacement value against all usual risks, and kept safe in good condition and stored separately and clearly identifiable as the Company’s property and with all identifying marks intact and legible: and

(b) may, subject to (2) below be used or sold by the Buyer in the ordinary course of its business on the basis that the proceeds of sale shall be held in trust by the Buyer for the Company absolutely.

(2) The Buyer’s powers of use and sale of retained goods shall terminate:-

(a) forthwith on notice from the Company if the Buyer is in default of any of its obligations under this or any other contract with the Company or if the Company has reasonable doubts as to the ability or willingness of the Buyer to pay any sum to it on the due date.

(b) automatically upon the occurrence of any of the following :-

(i) if the Buyer causes a meeting of or makes any arrangement or composition with its creditors

or

(ii) If the Buyer becomes insolvent or appears to be unable to pay a debt or to have no reasonable prospect of paying a debit (within the meaning of Section 268 of the Insolvency Act 1986), or being a company, appears unable to pay its debts (within the meaning of Section 123 of that Act):

(iii) if there is presented a petition for the winding up of the Buyer or for the appointment of an Administrator of its undertaking or

(iv) if the Buyer has an Administrator or Administrative Receiver appointed over any of its assets or undertaking or a winding up order made against it or it goes into voluntary liquidation (otherwise than for the purposes of bona fide reconstruction or amalgamation of a solvent company)

(3) The Company may, at any time on giving prior notice; enter the Buyer’s premises for the purpose of inspecting retained goods and identifying them as the Company’s property and the Buyer irrevocably authorises the Company to enter upon its premises for that purpose, and

(4) Upon suspension and revocation or determination of the Buyer’s power of sale and use under this Condition the Buyer shall place all the retained goods in its possession or under its control at the Company’s disposal and shall be deemed irrevocably to authorise the Company to enter upon any of the Buyer’s Premises, with or without vehicles, for the purpose of removing such goods.

(5) The repossession of retained goods by the Company in accordance with this Condition shall be without prejudice to all or any of the Company’s other rights against the Buyer under the contract

11. PAYMENT

(a) Subject to satisfactory trade, bankers and other requisite references, and where no other terms of payment have been specifically agreed in writing, the Company's terms are cash payment in full to be made within 28 days of the month-end in which the invoice is dated. Unless otherwise specifically agreed in writing, payment for export orders shall be by irrevocable letter of credit confirmed by a London Clearing Bank and issued under the Incoterms then in force. No discount or allowance will be made unless specifically stated by the Company in writing. Interest will be charged on all sums due under or by way of damages for breach of the contract at the rate of 8% per annum above the base rate of Barclays Bank PLC from time to time in force and shall be calculated and accrued on a day to day basis from the date on which payment fell due until payment (whether made before or after judgement has been obtained the Company against the Buyer).

(b) Time for making payment shall be of the essence of the contract.

(c) The Company may at any time, in its absolute discretion, appropriate any payment made by the Buyer in respect of goods to such outstanding debt as the Company thinks fit, notwithstanding any purported appropriation to the contrary by the Buyer.

(d) The Company shall be entitled to cancel the contract or to postpone any delivery until payment has been received, in the event that the Company has reasonable doubts about the Buyer’s ability or willingness to pay on the due date.

(e) The Company reserves the right at any time at its discretion to demand security for payment before continuing with an order or delivering goods or any instalment.

(f) VAT will be charged at the rate ruling at the time of despatch of the goods or, (if different, the basic tax point (as defined in regulations governing VAT from time to time in force).

12. SPECIFICATION OF WEIGHT AND MEASUREMENT

All weights and measurements are approximate only and any deviation shall not be deemed to vitiate the contract.

13. SPECIAL TOOLS AND MOULDS

Where it is necessary for the Company to manufacture or purchase special tools and jigs in order to execute the order, the Buyer will be charged with a portion of the cost thereof. Ownership of such special tools shall remain with the Company and only in exceptional circumstances will this arrangement be varied following agreement in writing between the Company and the Buyer.

14. FORCE MAJEURE

(a) The Company shall not be liable to the Buyer if unable to carry out any provision of the contract for any reason beyond its control including (but without limitation) Act of God, legislation, war, civil commotion, fire, flood, drought, failure of power supply, lock out, strike, stoppage or other action by employees or third parties in contemplation or furtherance of any dispute or owing to any inability to procure parts or materials required for the performance of the contract.

(b) The Company shall notify the Buyer as soon as reasonably practicable after circumstances preventing performance arise. During the continuance of such a contingency the Company may, within its absolute discretion, withhold, reduce or suspend performance of its contractual obligations, so far as prevented or hindered by such contingency, without liability to the Buyer for any loss or damage whatsoever suffered directly or indirectly by reason of any such withholding, reduction or suspension.

(c Should such contingency continue for more than three months either party may (subject to the Company repaying to the Buyer any advance payments made for undelivered goods and the Buyer paying for goods delivered) cancel the contract without further liability to the other.

15. NO WAIVER

No waiver of any of the Company’s rights under the contract shall be effective unless in writing signed by a Director or other authorised person on behalf of the Company. A waiver shall apply on to the specific circumstances in which it is given and shall be without prejudice to the enforcement of a Company’s rights in relation to different circumstances or the recurrence of similar circumstances.

16. NOTICES

Any notice under these Conditions shall be properly given if in writing and sent by first class post, telex or facsimile to the address of the intended recipient as stated in the contract or to such address as the Company and the Buyer from time to time notify to each other as their respective addresses for service and shall be deemed served in the case of postal notice, on the expiry of 48 hours from time of posting, in the case of telex on the recording of the “answer back” code on the sender’s machine, and in the case of the facsimile, on the expiry of 15 minutes from completion of transmission by the sender.

17. CONSTRUCTION AND JURISDICTION

English Law shall govern construction and operation of the contract and the Buyer agrees to submit to the nonexclusive jurisdiction of the English Courts.

Each of these Conditions and each paragraph hereof shall be construed as a separate condition. Should any provision hereof be found to be invalid or unenforceable or an unreasonable restriction of the Company’s liability then such provision shall apply with such modification as may be necessary to make it valid and effective.