1. Definitions

In these Conditions: “the Company” shall mean Associated Asphalt Materials Ltd (company number 15092885) who’s registered office is at 2nd Floor 168 Shoreditch High Street, London, United Kingdom, E1 6RA and its agents. “the Customer” shall mean the party who purchases the Goods from the Company. “Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. “the Goods” shall mean the goods or where the context permits the services to be supplied by the Company. “the Conditions” shall mean the terms set out in this document and any special terms agreed in writing between the Company and the Customer. “the Contract” means the contract for the supply of Goods comprising these Conditions and the Order Confirmation. “a Consumer” means a consumer as defined by the Unfair Contract Terms Act 1977 or the Unfair Terms on Consumer Contracts Regulations 1994. THESE TERMS DO NOT APPLY IF YOU ARE A CONSUMER. For this purpose, a consumer means any natural person acting for purposes outside its trade business or profession. “Order Confirmation” has the meaning given in Clause 2.2. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. 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. A reference to writing or written excludes fax but includes email.

2. Basis of Sale

2.1 The Goods are sold by the Company only under these Conditions, which may not be altered without the written agreement of a Company Director. Any contrary or additional terms unless so agreed are excluded.

2.2 The Contract for supply of Goods and/or services by the Company shall be created only upon the issuance by the Company of a written confirmation of the Customer’s order and incorporating these Conditions (the “Order Confirmation”). Each Order Confirmation should confirm:

    2.2.1 the quantity of Goods ordered;

    2.2.2 the purchase price to be paid (the “Price”);

    2.2.3 the specification of Goods ordered (the “Specification”);

    2.2.4 whether the Goods are to be collected or delivered;

    2.2.5 where Goods are to be collected, the agreed collection point (the “Collection Point”) and, where the Goods are to be delivered, the agreed delivery point (the “Delivery Point”); and

     2.2.6  the scheduled date for collection or delivery (as applicable).

2.3 Any quotations and estimates provided by the Company shall not be deemed to be offers capable of acceptance by the Customer and in any case shall be valid only for 30 days from their date and thereafter shall be automatically deemed invalid unless otherwise agreed by a Company Director. The Customer is responsible for ensuring that the terms of its order, and any applicable Specification submitted by the Customer, are complete and accurately set out in the Order Confirmation. The Company will not be responsible for any discrepancies between the Customer’s order and the details set out in the Order Confirmation.

2.4 Cancellation of the Contract by the Customer once created will only be accepted at the discretion of the Company and in any case on condition that any costs or expenses incurred by the Company up to the moment of cancellation and all loss or damage resulting to the Company by reason of such cancellation will be paid by the Customer to the Company immediately upon the Customer’s receipt of the Company’s invoice for the same. The Company may cancel the Contract at any time prior to delivery or collection of the Goods (as applicable), and without any liability to the Customer.

2.5 A charge will be made for any costs incurred by the Company due to any delay in the performance of the Contract by the Customer or in the event that the Customer defaults in collecting or giving instructions for the delivery of any Goods including but not limited to:

      2.5.1 where the Goods are to be collected by the Customer, any failure of the Customer to collect the Goods within the date and/or time window specified therefore by the Company or any delays or disruption caused at the Collection Point by the Customer, including as a result of any breach by it of its obligations under Clause 6.2; and

      2.5.2 where the Goods are to be delivered by the Company, any circumstances affecting the delivery location which prevents or delays delivery of the Goods by or on behalf of the Company within the date and/or time window specified therefore by the Company, including as a result of any breach by the Customer of its obligations under Clause 6.1.

Details of the Company’s standard demurrage rates are available on request.

2.6 Health and Safety information relating to the Goods is available on request. The Customer warrants that it will pass on to all third parties to whom it may supply the Goods all information to the use and safe handling of the Goods as may have been passed on to the Customer by the Company.

2.7 The Company reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Company shall notify the Customer in any such event.

2.8 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing and the Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

3. Representations

3.1 The Company shall not be liable in respect of any misrepresentation made by the Company, its servants or agents to the Customer, its servants or agents as to the condition of the Goods, their fitness for any purpose or their quantity or measurements unless the representation is:

    3.1.1 made or confirmed in writing by a Company Director; and/or

    3.1.2 fraudulent.

3.2 Without prejudice to Clause 3.1 of these Conditions, while the Company takes every precaution in the preparation of its catalogues, technical, circulars, price lists and other literature these documents are for the Customer’s general guidance only and statements made therein (in the absence of fraud on the part of the Company) shall not constitute representations by the Company, they shall not form part of the Contract, and the Company shall not be bound by them. If the Customer requires advice in relation to the Goods, then a specific request for advice should be made in writing. In any event, no advice given by the Company (whether or not confirmed in writing) shall amount to any representation by the Company for which it may be liable.

3. 3 The Company’s liability for damages for misrepresentation (other than fraudulent) is excluded or limited by Clause 9 of these Conditions.

4. Price

4.1 Quoted prices are based on costs prevailing at the time when they are given or agreed and are exclusive of VAT which the Customer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice. The Company shall be entitled to adjust the price of the Goods as at the time of delivery of the Goods or each instalment of Goods as the case may be:

     4.1.1 to take account of any direct or indirect price increases sustained by the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); and/or

    4.1.2 if there is any change in the delivery date, quantities or specifications for the Goods requested by the Customer or any failure by the Customer to give the Company adequate information or instructions.

5.  Payment

5.1  The Price of the Goods shall be as set out in the Order Confirmation or, if no price is quoted, the price set out in the Company’s price list as then in effect between the Company and the Customer. Any additional charges associated with transportation/delivery and/or delays shall be itemised in the invoice at cost or, where applicable, the Company’s standard rates (which are available on request).

5.2 The Company may invoice the Customer for the Goods on or at any time after the completion of collection or delivery (as applicable).

5.3 Payment of the Price shall be made by the Customer in full:

      5.3.1 where paid in cash, at the time of collection or delivery (as applicable); or otherwise

      5.3.2 in cleared funds to a bank account nominated in writing by the Company, by not later than the last day of the month following the date of invoice, notwithstanding that the property in the Goods may not have passed to the Customer at that time,

in each case without any set-off, counterclaim, deduction or withholding.

5.4 Time for payment shall be of the essence of the Contract.

5.5 Without prejudice to its other rights or remedies, the Company reserves the right, without incurring any liability whatsoever, to suspend performance or otherwise refuse to execute the Contract or any part thereof if:

      5.5.1 the Customer refuses to accept a Price variation under Clause 4;

      5.5.2 the arrangements for payments are, or the Customer’s credit status is, in the Company’s opinion insufficient or not satisfactory;

      5.5.3 if the Customer’s account, or any part thereof, becomes overdue for payment, or the Customer otherwise fails to pay any amount due under this Contract on the due date for payment; or

      5.5.4 if the Customer becomes Insolvent, or the Company reasonably believes that the Customer is about to become Insolvent.

5.6 The Customer shall not be entitled to withhold payment of any amount payable under the Contract by reason of any dispute or claim by the Customer in connection with the Contract or any other ground whatsoever nor shall the Customer be entitled to off-set against any amounts payable to the Company under the Contract any amount which is not then due and payable by the Company to the Customer.

5.7 The Company shall be entitled at all times to off-set any debt or claim of whatsoever nature which the Company may have against the Customer against sums due by the Company to the Customer.

6. Delivery

6.1 Where the Goods are to be delivered by the Company:

      6.1.1  The Company shall deliver the Goods to the Delivery Point at any time after the Company notifies the Customer that the Goods are ready.

      6.1.2 Delivery dates and times are given in good faith but are estimates only.

      6.1.3 Time for delivery shall not be of the essence of the Contract.

      6.1.4 The Company reserves the right to make delivery by instalments and tender a separate invoice for each instalment. Each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the

    6.1.5 Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.

    6.1.5 The price of the Goods is based on delivery being made in whole loads of sixteen tonnes and any orders which require delivery in one or more loads containing a quantity less than sixteen tonnes shall be subject to a premium on haulage. Details of such premium are available upon request.

    6.1.6 It is a condition of the Contract that proper assistance is given by the Customer to the driver of the delivery lorry in unloading the Goods. Any period of time where the vehicle is required to wait to deliver the Goods will be charged as waiting time to the Customer at the rate determined by the Company and such rate is available from the Company upon request.

    6.1.7 Delivery by the Company’s road vehicles shall be made on the nearest good hard road to the site with adequate turning space at the Delivery Point. The truck driver is empowered to refuse delivery if, in his opinion, the point of unloading is unsafe or is likely to prove dangerous to a vehicle. If the delivery vehicle is required to deliver at any point off a public road, the Customer will be responsible for any damage to vehicles, pipes, manholes or any other property of any sort resulting there-from and hereby indemnifies the Company against any loss, damage, claims, costs, including legal costs on an indemnity basis or demands which the Company may incur as a result of such delivery.

    6.1.8 In the event that the Customer requests that any Goods be deposited on a street or public highway the Customer shall be responsible for compliance with all regulations and for all steps which need to be taken for the protection at all times of persons or property and shall indemnify the Company in respect of all costs, claims, losses or expenses including legal costs on an indemnity basis which the Company may incur as a result of such delivery.

    6.1.9 Delivery is completed on the completion of unloading of the Goods at the Delivery Point.

6.2 Where the Goods are to be collected by the Customer:

    6.2.1 the Customer shall collect the Goods from the Collection Point within three Business Days of the Company notifying the Customer that the Goods are ready. The Customer shall be responsible for the loading of the Goods on to its collection vehicle and the Company shall not be required to provide labour of facilities in respect of such loading activity.

    6.2.2 Collection is completed on the completion of loading of the Goods at the Collection Point by the Customer.

    6.2.3 The Customer shall ensure that it undertakes collections only in vehicles which are suitable specification and size to collect the tonnages ordered in accordance with industry standards, and the Company reserves the right, in its sole discretion, to refuse (with no liability to the Customer) entry to the Collection Point to any vehicle or driver which it considers unsuitable.

6.3 The price of the Goods is based on the Customer requiring delivery or collection during the Company’s normal working hours or days (such hours or days are available on request). If the Customer requires delivery or collection at any other time, then the Customer shall give at least seven working days’ notice in writing to the Company and, if the Company agrees to such delivery or collection time (as applicable), the Customer shall pay all additional expenses as determined by the Company occasioned by such delivery or collection (as applicable).

6.4 For the avoidance of doubt and without derogation from any other provision of these Conditions the Company shall not be liable for any damages whatsoever whether direct or indirect (including for the avoidance of doubt any liability to any third party) resulting from any delay in delivery of the Goods or failure to deliver the Goods within a reasonable time, or any failure by the Company to make the Goods available to collect (within a reasonable time or otherwise) whether such delay or failure is caused by the Company’s negligence or otherwise howsoever.

6.5 If the Customer fails to collect, or accept delivery of, the Goods (as applicable) within three Business Days of the Company notifying the Customer that the Goods are ready, then, except where such failure or delay is due to the Company’s failure to comply with its obligations under the Contract in respect of the Goods:

    6.5.1  collection or delivery (as applicable) of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Company notified the Customer that the Goods were ready; and

    6.5.2 subject to Clause 6.6, the Company shall store the Goods until actual collection or delivery (as applicable) takes place, and charge the Customer for all related costs and expenses (including insurance).

6.6 If ten Business Days after the day on which the Company notified the Customer that the Goods were ready for collection or delivery (as applicable) the Customer has not collected the Goods, or accepted delivery of the Goods (as applicable), the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shorfall below the price of the Goods (if any).

7. Inspection and Shortages

7.1 The Customer shall inspect the Goods:

    7.1.1 where the Goods are collected by the Customer, at the time of loading at the Collection Point; and

    7.1.2 where the Goods are delivered by the Company, at the time of unloading at the Delivery Point.

7.2 The Customer must inform the Company by telephone as soon as reasonably practicable and in any event must give the Company written notice within two working days of loading or unloading (as applicable) of any claim of it having received a lesser quantity of Goods than as set out in the Order Confirmation (a “Short Delivery”) such notice to be accompanied by evidence reasonably satisfactory to the Company of such shorfall.

7.3 If the Customer does not give the Company the written notice and evidence required under Clause 7.2, within the timeframe specified under Clause 7.2, the Goods will be deemed to have been collected, or delivered (as applicable) in the quantities shown in the delivery documents.

7.4 The Customer shall not be entitled to and irrevocably and unconditionally waives any right to reject the Goods or claim any damages whatsoever for Short Delivery howsoever caused.

7.5 The Company’s liability for Short Delivery is limited to making good the shortage.

8. Risk and Title

8.1 The risk in the Goods shall pass to the Customer upon delivery to the Delivery Point or collection at the Collection Point (as applicable).

8.2 Until the Company has received in cash or cleared funds payment of all sums owed by the Customer to the Company on any account whatsoever, title to the Goods shall remain with the Company.

8.3 Until such time as title to the Goods passes to the Customer, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee and shall keep the Goods separately stored, protected, insured and identified as the Company’s property. Until that time the Customer shall be entitled to re-sell or use the Goods in the ordinary course of his business but at the direction of the Company shall account to the Company for the proceeds of the sale or insurance proceeds related to the Goods.

8.4 The Company shall be entitled at any time to recover any or all of the Goods in the Customer’s possession to which the Company has title and for that purpose the Company, its servants or agents may with transport as is necessary, enter any premises occupied by the Customer or to which the Customer has access and where the Goods may be or are believed to be situated.

9. Liabilities

9.1 In these Conditions “Defect” shall mean the condition and/or any attribute of the Goods not being in accordance with the Specification in any material respect.

9.2 Nothing in these Conditions shall exclude or restrict the Company’s liability for death or personal injury resulting from its negligence or the Company’s liability for fraudulent misrepresentation.

9.3 Subject to Clause 9.2 of these Conditions, the Company shall not be liable by reason of any misrepresentation (unless fraudulent) or of any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any damages whatsoever. Instead of liability for any of the matters set out in this clause 9.3 the Company undertakes liability under Clause 9.4 below.

9.4 Subject to the conditions set out in Clauses 9.5 and 9.6, in the event of any Defect in the Goods, the Company shall in its sole discretion either (a) repair the Goods at its own expense; (b) supply replacement Goods free of charge or (c) refund all (or where appropriate part) of the price for the relevant Goods.

9.5 The Company will not be liable under Clause 9.4:

       9.5.1 if the Defect arises from fair wear and tear, and/or the Customer’s wilful damage or negligence;

      9.5.2 where the Defect arises as a result of any Customer-provided instructions or directions;

      9.5.3 if the Defect arises from wilful damage, negligence, abnormal working conditions, misuse, alteration or repair of the Goods, or any failure to follow British Standard, or industry standards, or the Company’s instructions (whether oral or in writing) relevant to the Goods, or the storage of the Goods in unsuitable conditions (provided that this sub-Clause shall not apply to any act or omission of the Company); and/or

     9.5.4 unless after discovery of the Defect the Company is given a reasonable opportunity to inspect the Goods before they are used or in any way interfered with.

For the avoidance of doubt the Company acknowledges that the costs of suspending works are relevant to the determination of what is a reasonable opportunity and this sub-Clause shall not apply to any works affecting the Goods which it may be reasonably necessary to carry out in the interests of safety and/or as emergency measures.

9.6 Subject to Clause 9.2 of these Conditions, the Company’s obligations under Clause 9.4 shall be the Customer’s sole remedy in the event of any Defect in the Goods and the Company shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence or for any damages however so arising (if notwithstanding Clause 9.4 of these Conditions the Customer is entitled to recover any) nor shall the Company be liable under Clause 9.4 of these Conditions unless:

      9.6.1 where the Defect would have been apparent on a reasonable inspection under Clause 7.1 of these Conditions at the time of loading (where the Goods were collected by the Customer) or unloading (where the Goods are delivered by the Customer), the Defect was identified at the time of loading or unloading (as applicable); or in any other case

      9.6.2 the Defect is discovered within 2 months from the date of collection or delivery (as applicable) and the Company is given written notice of the Defect within 7 working days of it being discovered.

9.7 The Customer will unconditionally fully and effectively indemnify the Company against all loss, damages and costs on an indemnity basis and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patents, copyright, design, trademark or any other industrial or intellectual property rights of any other person.

9.8 The Customer will further unconditionally fully and effectively indemnify the Company against all loss damage costs on an indemnity basis and expenses awarded or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any other claim arising from any such manufacturing processing or mixing including but not limited to any Defect in the Goods. This indemnity will be reduced in proportion to the extent that such loss, damages, costs and expenses are due to the negligence of the Company.

9.9 If the Goods are not manufactured by the Company or have been processed by a third party whether or not at the request of the Company or the Customer the Company’s liability in respect of any Defect will be limited to such rights against the manufacturer or the third party as the Company may have in respect of those Goods. The Company will on written request provide details of its rights against the manufacturer or third party and any other terms and conditions imposed by the manufacturer or the third party and so far as possible will on request assign to the Customer any such rights.

9.10 The Customer will unconditionally fully and effectively indemnify the Company against all loss, damages and costs on an indemnity basis and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim by any third party arising from the supply or use of the Goods including loss arising from the Company’s negligence.

9.11 Subject to Clause 9.2 of these Conditions, the Company shall not be liable for misrepresentation (unless fraudulent) or in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever arising and whatever the cause for:

       9.11.1 any financial loss or any liability the Customer may have to a third party or any loss of profit, sales, business, contracts, revenues, anticipated savings or loss of or damage to goodwill or reputation; and/or

       9.11.2 any special, indirect or consequential damage or loss of any nature whatsoever.

9.12 Without prejudice to any other provisions in these Conditions the Company’s total liability for any one claim or for the total of all claims arising from any one act of the default of the Company (whether arising from the Company’s negligence or otherwise) shall not exceed the Price paid by the Customer for the Goods that are the subject matter of such claim.

10. Default

10.1  “Insolvent” shall mean the Customer becoming unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; the levying or the threat of execution or distress on any property of the Customer; the appointment of a receiver or administrative receiver over all or any part of the Customer’s property; a proposal for a voluntary arrangement or compromise between the Customer and its creditors whether pursuant to the Insolvency Act 1986 or otherwise; the passing of a resolution for voluntary winding up or summoning a meeting to pass such a resolution otherwise than for the purposes of a bona fide amalgamation or reconstruction; the presentation of a petition for winding up of the Customer or for an administration order in relation to the Customer; the Customer ceasing or threatening to cease to carry on its business; or the Customer’s financial position otherwise deteriorates so far as to reasonably justify the Company’s opinion that the Customer’s ability to perform its obligations under this Contract is in jeopardy.

10.2 Without prejudice to its rights under Clause 5.5, or otherwise limiting any of its other rights or remedies, if:

        10.2.1 the Customer fails to pay the Company for any goods on the due date; or

        10.2.2 the Customer becomes Insolvent; or

        10.2.3 the Customer is in breach of any condition of this Contract and fails to remedy such breach after being so requested to do so, the full balance outstanding under this Contract (including interest), and on any other account between the Company and the Customer, shall become immediately payable and the Company shall be entitled to do one or more of the following remedies (without prejudice to any other rights or remedy it may have):

                    10.2.3.1 require payment in cash or cleared funds in advance of delivery of any undelivered Goods;

                    10.2.3.2 cancel or suspend any further delivery to the Customer under the Contract or any other contract with the Customer;

                    10.2.3.3 sell or otherwise dispose of any Goods which are the subject of the Contract or any other contract with the Customer;

                    10.2.3.4 charge the Customer interest on the balance of monies overdue, such interest to accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; and/or

                   10.2.3.5 without prejudice to the generality of Clause 8 of these Conditions exercise the powers set out in Clause 8.4.

10.3 The Customer shall reimburse the Company’s costs including legal costs on an indemnity basis which the Company incurs in enforcing its rights under this Contract including but not limited to recovery of any sums due. Such sums shall be paid in addition to the statutory compensation payable by the Customer under the Late Payment of Commercial Debts (Interest) Act 1998, as amended.

10.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

11. Data Protection

11.1 If the Customer is an individual or group of individuals the Customer agrees that the Company may process the Customer’s personal data in accordance with the Company’s Data Protection Policy – copy available on request.

11.2 The Company reserves the right to make credit reference agency checks against the Customer and its principals and, if the Customer is a limited company, against its directors and may keep a record of that enquiry and share that information with other businesses. The Company reserves the right to monitor and record information relating to the Customer’s trade credit performance and to make available such records to other organisations to assess applications for credit.

12. Call Recording

12.1 The Company reserves the right to record or monitor telephone calls for training or security.

13. General

13.1 The 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 law of England and Wales.

13.2 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 the Contract or its subject matter or formation.

13.3 The headings of these Conditions are for convenience only and shall have no effect on interpretation.

13.4 The Company shall not be liable for any delay or failure to perform any of its obligations in relation to the Goods due to any event, circumstance or cause beyond its reasonable control, including industrial action.

13.5 If any Clause or sub-Clause of these Conditions is held by any court or other competent authority to be void or unenforceable, it shall be deemed deleted, but the validity of the other Clauses or sub-Clauses of these Conditions shall not be affected and they shall remain in full force and effect.

13.6 The waiver by the Company of any breach or default of these Conditions shall not be construed as a continued waiver of that breach nor as a waiver of any subsequent breach of the same or any other provision.

13.7 Nothing in these Conditions or this Contract is intended to or will create any benefit for or right to enforce any of these Conditions on a third party.