Terms and Conditions

TITAN CEMENT UK LTD CONDITIONS OF SALE 1 INTERPRETATION 1) In these Conditions: “Titan” means Titan Cement UK Ltd (registered in England under number 2209994) “Customer” means the person firm or company who accepts Titan’s quotation for the sale of the goods or whose order for the Goods is accepted by Titan “Delivery means the place nominated by the customer for “Site” delivery of the Goods in accordance with Clause 7(1) “Goods” means the goods (including any instalment of the goods or any part for them) which Titan is to supply in accordance with these conditions. 2) Any reference in these conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. 3) The headings in these conditions are for convenience only and shall not affect their interpretation. 2 BASIS OF THE SALE 1) Titan shall sell and the Customer shall purchase the Goods in accordance with any written quotation of Titan which is accepted by the Customer, or any order of the customer which is accepted by Titan, subject in either case to these conditions, which shall govern the contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer. 2) No addition or variation to or exclusion of these conditions shall be binding unless it is agreed in writing between the Customer and a Director if Titan and is expressly stated to be made in pursuance of this clause. 3) Titan’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed in writing by a Director of Titan. In entering into the contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representation which is not so confirmed. 4) Any advice or recommendation given by Titan or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by a Director of Titan is followed or acted upon entirely at the Customer’s own risk, and accordingly Titan shall not be liable for any such advice or recommendation which is not so confirmed. 5) Any error or omission in any sales literature, catalogue, quotation, price list, acceptance of offer, invoice or other document or information issued by Titan shall be subject to correction without Titan incurring any liability. 3 ORDERS 1) No order submitted by the Customer shall be deemed to be accepted by Titan unless and until confirmed by Titan whether verbally or in writing. 2) The Customer shall be responsible to Titan for ensuring the accuracy of the terms of any order submitted by the Customer and for giving Titan any necessary information within a sufficient time to enable Titan to perform the contract in accordance with its terms. 3) The quantity quality and description of and any specification for the Goods shall be those set out in Titan’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by Titan). 4 PRICES 1) The price of the Goods shall be Titan’s quoted price or, where no price has been quoted or the quoted price is not valid for any reason, the price shown in Titan’s invoice in respect of the Goods. All prices quoted are valid until the date specified in the quotation or, where no date is specified, 30 days from the date of the quotation, after which date they may be altered by Titan without giving notice to the Customer. 2) Except as otherwise stated under the terms of any quotation and unless otherwise agreed in writing signed by a Director of Titan, all prices are given by Titan on an ex works basis. Where Titan agrees to deliver the Goods otherwise than at Titan’s premises Titan shall deliver or arrange delivery of the Goods on the terms of clause 7 and the Customer shall be liable to pay all costs and charges therefore. 3) Unless otherwise stated, the price of the Goods is exclusive of VAT at the appropriate rate and of any other tax duty or levy which may be imposed from time to time on the sale of the Goods. The Customer shall have an obligation to pay any such items in addition to the price. 4) Where Titan quotes a price for or agrees to give the Customer a discount or rebate on the price of a specified quantity of the Goods to be purchased by the Customer over a specified period of time, the price quoted or the discount or rebate agreed (as the case may be) shall apply only if the Customer purchases not less than the specified quantity over the stated period. If the Customer buys less than the specified quantities Titan shall be entitled to charge its normal price for any quantities purchased. 5) Where Titan quotes a price for the sale of the Goods over a specified period (whether or not in conjunction with a requirement to purchase a specified quantity referred to in clause 4 (4) above) then Titan shall be entitled without notice to the Customer to increase the price for Goods supplied after expiry of that period. 5 PAYMENTS 1) Subject to any special terms agreed in writing by a Director of Titan, payment of the price shall be due upon delivery of the Goods or upon their collection from Titan’s premises as the case may be. 2) Where Titan agrees in writing that the payment need not be made on delivery then payment of the price plus VAT and any delivery or other charges shall be due in full and without any right of set off on the last day of the calendar month following the month in which the goods are delivered to or collected by the customer. 3) Time for payment shall be of the essence of the contract. Receipts for payment will be issued only upon request. 4) If the Customer fails to make any payment on the due date then (without prejudice to any other right to remedy available to Titan) Titan shall be entitled:- (a) to charge interest at the rate of : 2.5% per month on all and any monies remaining due and unpaid to Titan after the due date for payment such interest shall accrue on a day to day basis from the due date until the date of the payment (whether before or after any judgement). If Titan has to instruct solicitors or other agents to recover monies owed by the customer, the customer will indemnify Titan in respect of all fees and costs payable by Titan to its solicitors or agents and (b) at its entire discretion on giving notice in writing to the Customer to suspend any further deliveries or to terminate without any liability whatsoever the contract or any other contract under which further deliveries of goods remain to be made. Failure to pay all sums due on the due date shall be deemed to be repudiation of the contract and any other contract between Titan and the Customer and the Customer shall pay to Titan Titan’s loss of profit and other losses incurred by Titan as a result of each such termination, and (c) To repossess the Goods in accordance with clause 9, and (d) in relation to any future order or balance of order to insist on payment in full on a pro forma invoice basis only, and (e) to appropriate any payment made by the Customer to such of the goods ( or the goods supplied under any other contract between the customer and Titan) as Titan may think fit (notwithstanding any purported appropriation by the Customer). 6 TIME Subject to clause 5(4) above time is not of the essence of any contract between Titan and the Customer. Any dates or times quoted by Titan for supply and/or delivery of the Goods are approximate and quoted for guidance only and Titan shall not be liable for any failure to deliver on the said date or time or any delay in delivery howsoever caused. The Goods may be delivered by Titan in advance of the quoted delivery date or time upon giving reasonable notice to the customer. 7 DELIVERY 1) Delivery of the goods shall be made by the Customer collecting the goods from Titan’s premises at any time after Titan has notified the customer that the goods are available for collection or, if Titan has agreed to deliver or arrange delivery of the Goods to the Delivery Site, by Titan delivering or arranging delivery of the Goods to the Delivery site at the Customer’s expense. Subject to these conditions, where the Goods are sold in bulk Goods shall be deemed to be delivered when they pass from the vehicle receptacle or equipment owned or used by Titan or the carrier into a vehicle receptacle or equipment to be used by the Customer. 2) Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Titan to deliver any one or more of the instalments in accordance with these conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer treat the contract as a whole as repudiated. 3) If the Customer fails to take or accept delivery of the Goods or fails to give Titan adequate delivery instructions by the time specified in clause 7(4) (a) below (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of Titan’s fault) then, without prejudice to any other right or remedy available to Titan, Titan may at its sole discretion: (a) store the Goods until actual delivery and charge the Customer for the costs reasonable incurred by Titan as a result of the Customer’s to accept delivery including the costs of delivery, storage and insurance; or (b) give notice in writing to the Customer requiring it to take delivery of the Goods or give adequate instructions within seven days from the date of Titan’s notice. If the customer fails to take delivery or give adequate delivery instructions as aforesaid the Customer shall be deemed to have repudiated the contract Titan shall be discharged from any further obligation to deliver and Titan may sell the Goods. The Customer will pay Titan Titan’s loss of profit and all costs reasonably incurred by Titan as a result of the Customer’s failure to accept delivery including the costs of delivery storage and insurance and selling expenses. The Customer shall pay the sum due (plus any VAT thereon) to Titan within 30 days of the date of Titan’s invoice. 4) If Titan agrees to deliver or to arrange for delivery of the Goods to the Delivery Site, such delivery shall be on terms that:- (a) the Customer will provide to Titan instructions for delivery not less than 24 hours before the time at which the delivery vehicle is to leave Titan’s premises and will comply with all the obligations of the Customer set out in clause 7 (5); and (b) the Goods will be delivered by lorry only to hard and safe draw-in sites capable of withstanding the full laden weight of the delivery vehicle; and (c) where deliveries are made by bulk pressure vehicles or by similar means Titan shall have no responsibility for the connection from such vehicle to the vehicle tank or other receptacle to be used by the Customer for the storage of the Goods; and (d) it shall be the responsibility of the Customer to procure the unloading of the Goods from the delivery vehicle and the Customer shall ensure that sufficient personnel and equipment is available for such unloading in as efficient a manner as possible and for the purpose of these conditions the Goods shall be deemed to have been delivered when the delivery vehicle has arrived at the Delivery Site or at a place which in the opinion of the driver of the delivery vehicle is the place nearest to the Delivery Site which complies with clause 7(4)(b); and (e) the Customer shall ensure that the delivery vehicle is fully and completely unloaded within the following times:- Type of Vehicle Time allowed for Unloading Bulk Powder Tank 90 Minutes Flat Back 90 Minutes (f) if the Customer fails to accept delivery of the Goods or fails to provide sufficient storage space/capacity or personnel or equipment to allow for the efficient and proper unloading of the Goods or fails to procure that the delivery vehicle is unloaded within the times stated in sub-paragraph 7(4)(e) above then Titan shall be entitled to invoice the Customer for the amount of all costs and expenses suffered or incurred by Titan as a result of such failure including any additional sums payable to any carrier and any extra cost of redelivering the Goods and the Customer shall pay all sums due within 30 days of Titan’s invoice; and (g) Titan does not accept any liability for damage to the Delivery Site or to the Customer’s installations resulting from the delivery or unloading of the Goods and the Customer must satisfy itself as to the suitability of the Delivery Site and its plant to receive such unloading. 5) The Customer shall: (a) perform all the obligations of the Customer set out in clause 7(4); and (b) ensure for the delivery vehicle a safe route from the public highway to position in close proximity to the correct location silo hopper or pipe into which the material is to be discharged or otherwise delivered; and (c) make available at the Delivery Site a representative who as agent for the Customer shall clearly instruct the driver effecting delivery such safe route and delivery location silo or hopper or pipe. Titan shall not be liable for any losses damages costs or expenses if delivery is made in the wrong location other than through Titan’s negligence; and (d) ensure that there is sufficient storage space/capacity to accept the amount to be delivered; and (e) ensure that the Customer’s delivery location silo or hopper and any equipment used in the delivery or unloading of the Goods is in good repair and working order and safe in all respects to accept delivery; and (f) indemnify Titan and its carrier and their respective servants and agents against all damages loss claims (including any claim for personal injury or death) demands and expenses (including legal and professional expenses) costs and liabilities which Titan may at any time suffer or incur as a result of any breach by the Customer of its obligations contained in this clause 7 (5); and (g) further indemnify Titan against all damages loss claims or expenses suffered or incurred by Titan as a result of the Customer cancelling any delivery after it has been loaded at Titans premises. 6) Where the Goods are to be collected from Titan’s premises by the customer Titan shall be entitled without incurring any liability to the Customer and without giving any reason to refuse admission to any vehicle or driver or other personnel or to require them to leave Titan’s premises. In such circumstances the Customer shall be deemed to have failed to collect the Goods. 8 RISK Notwithstanding the property in the Goods has not passed to the Customer, risk in the Goods shall pass to the Customer upon the delivery of the Goods to the Delivery Site or the collection of the Goods from Titan’s premises as the case may be. Subject to these conditions, where Goods are sold in bulk risk in the Goods shall pass to the Customer when the Goods pass from the vehicle receptacle or equipment owned or used by Titan or the carrier into a vehicle receptacle or equipment to be used by the Customer. 9 PROPERTY 1) All Goods delivered by Titan to or to the order of the Customer shall remain the property of Titan until Titan has received in cleared funds payment in full of all sums due to Titan from the Customer on any account whatsoever. 2) Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as Titan’s fiduciary agent and bailee and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as Titan’s property. Subject to these conditions the Customer is licensed by Titan to agree to sell the Goods subject to the express conditions that such an agreement to sell shall take place as agent and bailee for Titan whether the Customer sells on his own account or not and that the entire proceeds of the sale whether tangible or intangible, including insurance proceeds, are held in trust for Titan and are kept separate from any monies or property of the Customer and third parties and are at all times identifiable as Titan’s money or property and, in the case of tangible proceeds, are properly stored, protected and insured. 3) Until such time as the property in the Goods passes to the Customer Titan shall be entitled at any time to require the Customer to deliver up the Goods to Titan and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored or reasonably believed to be and repossess the Goods and the Customer hereby grants to Titan its servants or agents an irrevocable license to enter such premises. 4) Where the Goods are supplied in bulk to the Customer’s vehicles tanks or other receptacles the Customer warrants that the Goods will not be mixed with any goods belonging to the Customer or to any third party and Titan’s right to repossess granted by this clause extends to the volume of unpaid-for Goods whether or not mixed with other goods the property of the Customer. 10 SHORTAGES OR ERRORS 1) Titan’s delivery ticket shall be conclusive evidence of the net weight of the Goods delivered to the Customer and Titan shall be entitled to invoice the Customer for and the Customer shall pay to Titan the price for the net weight shown on the delivery ticket plus VAT at the appropriate rate and any delivery or other charges. 2) The Customer shall examine and check all Goods supplied by Titan immediately upon receipt. In the event that the Customer claim any alleged shortages or errors in such consignment or any damage to the packaging of such Goods or any defective packaging the Customer shall notify the driver of the vehicle immediately upon receipt of the goods and make a suitable endorsement upon the copy of the delivery note retained by such driver and within three days of the receipt of the Goods confirm such notification in writing to Titan at the address set out in the delivery ticket. Time of notification shall be of the essence in all cases. Titan shall not accept any claim in respect of any alleged shortages or erroneous goods or defects occasioned by damage or defective packaging which is not notified to Titan in accordance with this clause and Titan will not be liable to replace or make good the same in any circumstances whatsoever or be under any liability whatsoever to the Customer in respect of shortages or errors or defects howsoever caused. 11 PRODUCT LIABILITY Titan has prepared and supplied to the Customer copies of a Health and Safety Data Sheet for the Goods containing information as to the physical composition of the Goods and precautions to be taken with regard to their handling and use. The Customer acknowledges that copies of the Data Sheet have been provided and undertakes:- 1) to make copies of the Data Sheet available to the Customer’s employees and to any person firm or company to whom the Customer sells the Goods, and 2) to instruct all the Customer’s employees and others who handle or use or otherwise come into contact with the Goods in the contents of the Data Sheet with particular reference to the precautions recommended by Titan to be taken with regard to the handling or use of the Goods. 12 WARRANTY AND LIABILITY 1) Titan gives no warranty whatsoever that the Goods are fit for the Customer’s purpose unless the Customer shall have specifically disclosed the purpose for which he requires the Goods and Titan shall have given a specific warranty in writing and signed by a Director of Titan that the Goods are fit for such purpose. 2) Subject to Clause 10 Titan warrants that the Goods will comply with Titan’s specification and (where applicable) have been manufactured in accordance with the relevant British Standards Specification PROVIDED THAT whilst every reasonable effort is made to maintain consistency in the characteristics of the Goods some variation may occur and Titan shall not be liable in respect thereof. In the event that the Goods or any part thereof are found on delivery not to have been manufactured as any part thereof are found on delivery not to have been manufactured as aforesaid Titan may in its absolute discretion replace such Goods free of charge or refund to the Customer the price of the Goods in question or a proportionate part thereof. Titan shall have no further or other liability in respect thereof. The Customer shall not be entitled to set off against any sums due to Titan the value of any claim the Customer may have or purport to have against Titan. 3) If a dispute arises concerning the quality of the Goods or part thereof a representative sample shall be drawn from the Goods in question in the presence of Titan or its representative in the manner prescribed by the relevant British Standards Specification and packed in an air-tight container. Such sample shall be referred without delay for examination in accordance with any relevant British Standard Specification or otherwise to a recognised expert appointed by agreement between the parties or failing such agreement appointed by the President of the Royal Institution of Chartered Surveyors on the application of either party. Unless there is agreement to the contrary, only the concrete method of test as specified in British Standard Specification 12 shall be used for the purpose of testing compressive strength. The report of such expert shall be final and binding on the parties. Any fees or expenses payable to such expert shall be paid by the Customer. 4) Titan liability to replace or refund the price of defective Goods as set out in Clause 12(2) shall represent the total liability of Titan to the Customer in respect of defects in the Goods whether arising as the result of Titan’s default or otherwise. Except in respect of death or personal injury caused by Titan’s negligence. Titan shall not be liable to the Customer by reason of any representation or any implied warranty condition or other term or any duty at common law or under the express terms of the contract for any consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of Titan its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Customer, except as expressly provided in these conditions. 13 INSOLVENCY This clause applies:- (a) if (the Customer being an individual) any application is made to the Court pursuant to either or both of sections 253 or 267 of the insolvency Act 1986 (“1986 Act”) or if a statutory demand (as the same is defined in section 268(1)(a) of the 1986 Act) is served upon the Customer or if a petition for a bankruptcy order against the Customer is presented to the Court by any of the persons specified in paragraphs (a) - (d) inclusive of sub-section (1) of Section 264 of the 1986 Act or if the Customer shall call a meeting of or enter into any composition with creditors or suffer any distress to be levied on the goods of the Customer; or (b) if the Customer (being a company) shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the 1986 Act or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of ) its creditors or if the Customer shall be unable to pay its debts within the meaning of section 123 of the 1986 Act or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Customer or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Customer or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction); or (c) if any party takes or threatens any action including but without limitation the commencement of legal proceedings to enforce or foreclose any lien or mortgage over or in respect of any property of the Customer; or (d) an encumbrance takes possession of the whole or any part of the property of the Customer; or (e) if the Customer stops or threatens to stop payment of its debts or ceases or threatens to cease carrying on its business. 2) If this clause 13 applies the Customer shall give notice in writing to Titan immediately of the occurrence of any such event and without prejudice to any other right or remedy available to Titan shall be entitled to cancel the contract or suspend any further deliveries under the contract without incurring any liability to the Customer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. 14 FORCE MAJEURE Titan shall not be liable to the Customer or be deemed to be in breach of the contract by reason of any delay in performing or any failure to perform any of Titan’s obligations in relation to the Goods if the delay or failure were due to any cause beyond Titan’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Titan’s reasonable control: (a) Act of God explosion flood storm tempest fire or accident; (b) war or threat of war sabotage insurrection civil disturbance or requisition; (c) acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority; (d) import or export regulations or embargoes; (e) strikes lock-outs or other industrial actions or trade disputes (whether involving employees of Titan or of a third party); (f) difficulties in obtaining raw materials labour fuel parts or machinery; or (g) power failure or breakdown in machinery. If such a delay or failure persists for more than one month Titan may terminate the contract by notice in writing to the Customer. Termination under this clause shall not affect Titan’s right to recover payment for Goods already delivered. 15 INDEMNITY The Customer shall at all times keep Titan its servants and agents effectively indemnified against all actions proceedings costs charges claims expense and demands whatsoever which may be made or brought against Titan its servants or agents by any third party in respect of any alleged injury loss damage or expenses arising out of or in connection with the Goods supplied by Titan to the Customer PROVIDED THAT his indemnity shall not extend to any claims etc. In respect of death or personal injury caused by the negligence of Titan, its servants or agents. 16 NOTICES 1) Any notice or other information to be given by either party to the other may be given by hand or sent (by first class pre-paid post, telex, facsimile transmission or comparable means of communication) as the case may be to Titan at the address shown on the delivery ticket or to the Customer at the address notified to Titan by the Customer as the address to which correspondence should be sent. 2) Any notice or other information given by post under clause 16 (1) which is not returned to the sender as undelivered shall be deemed to have been given on the fifth day after the envelope containing the same was so posted; and proof that the envelope containing any such notice or information was properly addressed and sent by first class, pre-paid post and that it has not been so returned to the sender, shall be sufficient evidence that such notice or information has been duly given. 3) Any notice or other information sent by telex, facsimile transmission or comparable means of communication shall be deemed to have been duly sent on the date of transmission, provided that a confirming copy thereof is sent by first class pre-paid post to the other party at the address referred to in clause 16(1) within 24 hours after transmission. 17 ENGLISH LAW AND JURISDICTION This contract and these conditions shall be governed and interpreted by English law and the parties hereby irrevocably submit to the jurisdiction of the English Courts.