The Buyer’s attention is particularly drawn to Clause 9 (Limitation of Liability).
1.1 Definitions
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Buyer: the person, firm, or company who purchases the Goods from the Company.
Company: Canova Clay Limited (trading as Hepworth Clay), a company incorporated and registered in England and Wales with company number 16060076, whose registered office is at Crow Edge, Sheffield, England, S36 4HG.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with Clause 12.4.
Consumer: an individual acting for purposes wholly or mainly outside their trade, business, craft, or profession, as defined under the Consumer Rights Act 2015.
Contract: the contract between the Company and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Delivery Point: the location at which the Goods are to be delivered by the Company or collected by the Buyer, as specified under Clause 4.1.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 Interpretation
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Buyer waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.2 The Buyer’s order for the Goods as set out in the Buyer’s purchase order form or the Buyer’s acceptance of the Company’s quotation for the Goods constitutes an order by the Buyer (“Order“). The Order shall be deemed to be an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer must ensure that the terms of the Order and any applicable specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order or, if earlier, upon delivery of the Goods by the Company to the Buyer, at which point and on which date the Contract shall come into existence.
2.4 Any quotation for the Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue, provided the Company has not previously withdrawn it or agreed in writing to extend the period.
2.5 For Consumers, these Terms do not affect statutory rights under the Consumer Rights Act 2015 or the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
3.1 The description of the Goods are as described in the Company’s quotation.
3.2 Delivery up to 5% above or below the quantities ordered shall be permissible. Colour shall be subject to reasonable variation. The Buyer shall accept delivery of Goods within such limits without objection, but invoices will be adjusted to actual quantities. The Company may, at its discretion, effect delivery of the quantities ordered within such limits in standard pack quantities as used by the Company from time to time. The quantity of any consignment of Goods recorded by the Company on despatch shall be conclusive evidence of the quantity received unless the Buyer provides conclusive contrary evidence.
3.3 Any samples, drawings, descriptive matter, or advertising produced by or on behalf of the Company, and any descriptions or illustrations contained in the Company’s quotations, catalogues, brochures, or other materials (in any form), are provided solely to give an approximate idea of the Goods described in them. They do not form part of the Contract and have no contractual force. The Buyer acknowledges that it was not induced to enter into the Contract by any representation contained in such materials. This is not a sale by sample.
3.4 The Company may, at the Buyer’s request, provide technical advice concerning the use of the Goods. Such advice is given at the Buyer’s sole risk. The Company shall not be liable for any loss, damage, or claims arising therefrom.
3.5 The Company accepts no liability for any work carried out or materials supplied by the Company in accordance with the Buyer’s own drawings, designs, or specifications.
3.6 The Company’s submission of a quotation or acceptance of an order does not imply that the Goods or their use will comply with any by-laws, planning permissions, or other approvals required by the Buyer. Compliance with such requirements is the sole responsibility of the Buyer.
4.1 Delivery is completed:
(a) on the completion of unloading of the Goods where the Company delivers the Goods to the location set out in the Order or such other location as the parties may agree in writing; or
(b) on the completion of loading of the Goods where the Buyer collects the Goods from Crow Edge, Sheffield, S36 4HG or such other location as may be advised by the Company in writing prior to delivery.
4.2 Where the Company delivers the Goods under Clause 4.1(a), any dates specified for delivery are estimates only, and time for delivery shall not be of the essence unless expressly agreed in writing by the Company. If no dates are specified, delivery shall take place within a reasonable time.
4.3 Where the Buyer is collecting the Goods under Clause 4.1(b), the Buyer shall take delivery within 7 days of the Company giving notice to the Buyer that the Goods are ready for collection.
4.4 The Company shall ensure that each delivery of the Goods is accompanied by a delivery note which includes:
(a) the type and quantity of the Goods (including any relevant product code numbers);
(b) any special requests and instructions;
(c) if the Goods are to be delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.5 Signature of the delivery note referred to in Clause 4.4 by any agent, employee, nominee, or representative of the Buyer, or by any independent carrier acting on the Buyer’s behalf, shall constitute conclusive proof of delivery.
4.6 At the Delivery Point, the Buyer shall, at its own expense, provide adequate equipment and labour for all necessary handling of the Goods, including loading or offloading, as applicable.
4.7 Where the Company delivers the Goods under Clause 4.1(a) to a site of works, the Buyer shall ensure that delivery can be made at a point on good hard ground nearest to the site. The Company reserves the right to refuse delivery to any site that the delivery driver reasonably deems unsuitable.
4.8 Where the Company delivers the Goods under Clause 4.1(a) to a location other than the Buyer’s own premises, the Buyer shall:
(a) ensure compliance with all applicable laws and regulations relating to such delivery;
(b) take all necessary steps to protect persons and property in connection with the delivery, unloading, or deposit of the Goods; and
(c) indemnify the Company against all claims, losses, damages, costs, and expenses arising from or in connection with such delivery, unloading, or deposit, except to the extent caused by the Company’s negligence.
4.9 Subject to other provisions, the Company shall not be liable for any direct, indirect, or consequential loss caused by any delay in delivery nor shall any delay entitle the Buyer to terminate or rescind the Contract unless:
(a) such delay exceeds 180 days beyond the agreed delivery date; or
(b) after the agreed delivery date, the Buyer has served written notice requiring delivery within a period of not less than 30 days and the Company has failed to deliver within that period.
For Consumers, statutory rights under the Consumer Rights Act 2015 apply.
4.10 If the Buyer fails to take or make arrangements to accept delivery, delivery shall be deemed (“Deemed Delivery“) and the risk in the Goods shall pass to the Buyer. In the event of a Deemed Delivery, the Company may:
(a) make additional charges for failed delivery;
(b) allocate new delivery dates;
(c) store the Goods at the Buyer’s risk and the Buyer shall be liable for all related costs including storage and insurance;
(d) invoice the Buyer for the Goods;
(e) terminate the Contract without liability; and/or
(f) recover all costs and losses incurred.
4.11 For Consumers, delivery terms comply with the Consumer Contracts Regulations 2013, including clear delivery timelines and cancellation rights.
4.12 Subject to Clauses 4.13 and 4.14, the Company shall not be liable for non-delivery unless the Buyer gives written notice of the non-delivery within 7 days (or 14 days if the Buyer is a Consumer) of the date on which the Goods would, in the ordinary course of business, have been received.
4.13 The Company’s liability for non-delivery shall be limited, at its sole discretion, to either:
(a) replacing the Goods within a reasonable time; or
(b) issuing a credit note for the Goods not delivered, at the pro rata Contract rate.
4.14 The Company shall not be liable for any failure to deliver the Goods to the extent such failure is caused by:
(a) a Force Majeure Event; or
(b) the Buyer’s failure to provide adequate delivery instructions or any other instructions or information relevant to the supply of the Goods.
5.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
5.2 Title to the Goods shall not pass to the Buyer until the Company has received full payment (in cash or cleared funds) for:
(a) the Goods; and
(b) all other sums due to the Company from the Buyer.
5.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods separately from other goods held by the Buyer so that they remain readily identifiable as the Company’s property, at no cost to the Company;
(c) not remove, destroy, deface, or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured for their full price against all risks from the date of delivery.
5.4 Subject to Clause 5.5, the Buyer may resell or use the Goods before title passes, provided:
(a) the sale is in the ordinary course of the Buyer’s business at full market value;
(b) the Buyer does so as principal and not as the Company’s agent; and
(c) the Buyer assigns to the Company, at the Company’s request and expense, all rights and claims the Buyer may have against the Buyer’s customers arising from such resale.
5.5 At any time before title to the Goods passes to the Buyer, the Company may:
(a) by notice in writing to the Buyer, terminate the Buyer’s right to possession, use, or sell the Goods;
(b) require the Buyer to deliver up all Goods in its possession and control that have not been resold or irrevocably incorporated into another product; and
(c) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored to inspect or recover them. The Buyer grants the Company, its agents, and employees an irrevocable licence to do so.
5.6 The Buyer’s right to possession, use, or sell the Goods shall terminate if:
(a) the Buyer becomes insolvent, enters liquidation, administration, or similar proceedings under the Insolvency Act 1986, or is unable to pay debts under section 123 of the Insolvency Act 1986;
(b) the Buyer suffers execution on its property, fails to perform Contract obligations, or ceases to trade; or
(c) the Buyer encumbers or charges the Goods.
5.7 The Company may recover payment for the Goods notwithstanding that title to the Goods has not yet passed to the Buyer.
5.8 If the Company is unable to identify whether any particular Goods in the Buyer’s possession are those in respect of which title has not yet passed, the Buyer shall be deemed to have used, sold, or otherwise dealt with goods in the order they were invoiced.
5.9 On termination of the Contract, the Company’s rights under this Clause 5 remain in effect.
6.1 Unless otherwise agreed in writing, the price of the Goods shall be as set out in the Company’s quotation or acknowledgment of order (“Price“).
6.2 The Price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) unless otherwise agreed in writing, excludes the costs and charges of packaging, loading, unloading, insurance and transport of the Goods, which shall be invoiced to the Buyer.
6.3 The Company may, at its discretion, discount the Price by up to 2% for payments received in cleared funds before the due date.
6.4 The Company may, by giving notice in writing to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any request by the Buyer to change the delivery date(s) or the quantities, types or specification of the Goods ordered; or
(b) any delay caused by any instructions of the Buyer or failure of the Buyer to give or delay by the Buyer in giving the Company adequate or accurate information or instructions.
6.5 For Consumers, all costs will be clearly communicated before the Contract is formed, per the Consumer Rights Act 2015.
7.1 The Company shall issue an invoice for the Goods in advance of delivery. The Buyer shall pay the Price in the invoiced currency no later than the last working day of the month preceding the month in which the Goods are delivered or deemed delivered (“Due Date“). Time for payment shall be of the essence.
7.2 No payment is deemed received until the Company has cleared funds.
7.3 The Buyer shall make payments due to the Company in full without any deduction, set-off, counterclaim, or discount unless required by law or pursuant to a valid court order. For Consumers, deductions permitted by the Consumer Rights Act 2015 apply.
7.4 Without prejudice to the Company’s statutory rights under the Late Payment of Commercial Debts (Interest) Act 1988, the Company may charge interest on overdue payments at a rate of 4% per annum above the Bank of England base rate accruing daily until payment and claim fixed-sum compensation where applicable.
8.1 The Buyer shall inspect the Goods at the place and time of delivery but is not required to break packaging or unpack Goods intended for storage.
8.2 Where the Company is not the manufacturer of the Goods:
(a) the Company shall, where reasonably practicable, make reasonable endeavours to transfer to the Buyer any warranty or guarantee provided by the original manufacturer; and
(b) to the extent permitted by law, the Company shall not be liable for any defect in such Goods arising from any act, omission, or default of the original manufacturer.
8.3 The Company warrants that on delivery and for a period of 12 months from the date of delivery (“Warranty Period“), the Goods shall:
(a) be of satisfactory quality under the Sale of Goods Act 1979 (or, for Consumers, the Consumer Rights Act 2015);
(b) conform in all material respects with their specification in the Company’s price list; and
(c) be reasonably fit for any purpose expressly made known in writing by the Buyer and confirmed in writing by the Company as reasonable to rely on.
8.4 Subject to Clause 8.5, if:
(a) during the Warranty Period, the Buyer gives written notice of the Goods not complying with the warranty set out in Clause 8.3 within 7 days (or 14 days for Consumers) of discovery;
(b) the Company is given a reasonable opportunity to examine such Goods; and
(c) the Buyer (if requested by the Company) returns such Goods to the Company’s place of business at the Company’s cost,
the Company, at its option, shall repair or replace the defective Goods or refund the price of the defective Goods at the pro rata Contract rate.
8.5 The Company shall not be liable for the Goods’ failure to comply with the warranty if:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with Clause 8.4;
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods;
(c) the Buyer alters or repairs such Goods without the Company’s written consent;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.6 Except as provided in this Clause 8, the Company shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in Clause 8.3.
8.7 Replaced Goods shall belong to the Company. Any repaired or replacement Goods shall be warranted for the unexpired portion of the 12-month Warranty Period.
8.8 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
8.9 For Consumers, statutory remedies under the Consumer Rights Act 2015 apply.
9.1 References to liability in this Clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
9.2 All warranties, conditions, and terms implied by statute or common law (except those under section 12 of the Sale of Goods Act 1979 or, for Consumers, the Consumer Rights Act 2015) are excluded to the fullest extent permitted by law.
9.3 Nothing in this Contract limits liability for:
(a) death or personal injury caused by the Company’s negligence;
(b) defective products under the Consumer Protection Act 1987;
(c) fraud or fraudulent misrepresentation; or
(d) any liability that cannot legally be limited.
9.4 Subject to Clauses 9.2 and 9.3:
(a) the Company’s total liability to the Buyer shall be limited to the contract price; and
(b) the following types of loss are wholly excluded:
(i) loss of profits (including loss of anticipated savings);
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of use or corruption of software, data or information;
(v) loss of or damage to goodwill; and
(vi) indirect or consequential loss.
9.5 For Consumers, unfair terms or limitations are not binding under the Consumer Rights Act 2015.
9.6 This Clause 9 shall survive termination of the Contract.
10.1 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if:
(a) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of it being notified in writing to do so;
(b) the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors, obtaining a moratorium, being wound up, having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Buyer’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.
10.2 Without limiting its other rights or remedies, the Company may suspend supply of the Goods under the Contract if the Buyer becomes subject to any of the events listed in Clause 10.1(b) to Clause 10.1(d), or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
10.3 Without limiting its other rights or remedies, 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.
10.4 All sums owed by the Buyer to the Company shall become immediately due and payable upon termination of the Contract for any reason.
10.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination.
10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 60 days, the party not affected may terminate the Contract by giving not less than 14 days’ written notice to the affected party.
12.1 Assignment and other dealings
(a) The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Buyer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company.
12.2 Confidentiality
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 12.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party may use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12.3 Entire agreement
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty that is not set out in the Contract.
12.4 Variation
No variation of this Contract shall be effective unless it is in writing and signed by the parties or their authorised representatives.
12.5 Waiver
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
12.6 Severance
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of the Contract is deemed deleted, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.7 Notices
(a) Any notice given to a party under or in connection with this Contract shall be in writing, in the English language, and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the following addresses:
Company: canovaqueries@hepworth.co.uk
Buyer: the email address recorded on the Buyer’s trade account or the email address of the Buyer’s representative who placed the order.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.8 Third party rights
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.9 Data Protection
The Company processes personal data in accordance with the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018. Personal data collected will be used to fulfil the Contract and may be used to send information about the Company’s products or services. The Buyer may opt out by contacting the Company. Personal data will not be sold to third parties.
12.10 Governing law
This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
12.11 Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
