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Dainton Portable Buildings - Terms and Conditions of Sales

Terms and Conditions Relating to Sales

The Customer’s attention is drawn in particular to clause 9

1 Definition of terms:

  • 1.1 In these Conditions: "Company" means Dainton Group Services Ltd
    "Conditions" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company
    "Contract" means the contract for the purchase and sale of the Goods
    "Customer" means the person who accepts a quotation of the Company for the sale of the Goods or whose order for the Goods is accepted by the Company
    "Force Majeure Event" means an event as defined in clause 9.10
    "Goods" means any units containers materials equipment plant or services (including any installment of the same or any parts for them) which the Company is to supply in accordance with these Conditions
    "Writing" includes email telex cable facsimile transmission and comparable means of communication.
  • 1.2 Any reference in these Conditions to any provision of a statute shall be construed as reference to that provision as amended re-enacted or extended at the relevant time.
  • 1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2 Basis of the sale

  • 2.1 The Company shall sell the Goods as sold as seen (unless otherwise stated) and the Customer shall purchase the Goods in accordance with any written quotation of the Company which is accepted by the Customer or any written order of the Customer which is accepted by the Company subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of
  • 2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Company.
  • 2.3 The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed
  • 2.4 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed
  • 2.5 Any typographical clerical or other error or omission in any sales literature quotation price list acceptance or offer invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company. This includes the website.

3 Orders and specifications

  • 3.1 No order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company’s authorised representative.
  • 3.2 Acceptance of an order is subject to the receipt of satisfactory references.
  • 3.3 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
  • 3.4 The quantity, quality and description of and any specification for the Goods shall be those set out in the Company’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Company)
  • 3.5 Any descriptive matter specifications drawings particulars dimensions and advertising matter submitted in connection with the Company’s quotations and brochures are approximate only. All drawings calculations and descriptive matter furnished by the Company to the Customer in connection with quotations remain the property of the Company and must not be copied and/or shown to any third party without the Company’s consent in writing.
  • 3.6 If the Goods are to be manufactured or any process to be applied to the Goods by the Company in accordance with a specification submitted by the Customer, then the Customer shall indemnify the Company against all liabilities, loss, damages, costs, 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 the intellectual property rights of any other person which results from the Company’s use of the Customer’s specification
  • 3.7 The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or where the Goods are to be supplied to the Company’s specification which do not materially affect their quality or performance or when the components or materials stipulated are not readily available
  • 3.8 No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit) costs (including the cost of all labor and materials used) damages charges and expenses incurred by the Company as a result of cancellation

4 Price of the goods

  • 4.1 The price of the Goods shall be the Company’s quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in the Company’s published price list current at the date of acceptance of the order. All prices quoted exclusive of VAT, are valid for 7 days only or until earlier acceptance by the Customer after which time they may be altered by the Company without giving notice to the Customer
  • 4.2 The Company reserves the right by giving notice to the Customer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as without limitation any foreign exchange fluctuation currency regulation insurance overhead charges alteration of duties significant increase in the costs of labor materials or other costs of manufacture) any change in delivery dates quantities or specifications for the Goods which is requested by the Customer or any delay caused by any act omission or instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
  • 4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Company and unless otherwise agreed in writing between the Customer and the Company all prices are given by the Company on an ex-works basis and where the Company agrees to deliver the Goods otherwise than at the Company’s premises the Customer shall be liable to pay the Company’s charges for transport packaging installation and insurance.

5 Terms of payment

  • 5.1 Subject to any special terms agreed in writing between the Customer and the Company, the Company shall be entitled to invoice the Customer and receive payment/cleared funds including VAT if applicable, from the customer for the price of the Goods prior to delivery of the Goods unless the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods in which event the Company shall be entitled to invoice the Customer for the price at any time after the Company has notified the Customer that the Goods are ready for collection or (as the case may be) the Company has tendered delivery of the Goods.
  • 5.2 The Customer shall pay the price of the Goods in advance of receipt of goods, the Company’s invoice or the issue of interim valuations notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
  • 5.3 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company the Company shall be entitled to:
  • 5.3.1 Cancel the Contract or suspend any current and further deliveries to the Customer
  • 5.3.2 Appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer) and
  • 5.3.3 charge the Customer interest (both before and after any judgment) on the amount unpaid at the rate of 8 per cent per annum above Barclays Bank base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest)

6 Delivery

  • 6.1 Delivery of the Goods shall be made by the Customer collecting the Goods, at the Company’s premises, before the expiry of 3 days after the Company has notified the Customer that the Goods are ready for collection or if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place. All unloading facilities required for delivery including any special equipment shall be provided by the Customer and at his/her own expense unless otherwise previously agreed in writing between the Customer and the Company.
  • 6.2 Any dates quoted for delivery of the Goods are approximate dates only and the Company shall not be liable for any delay in delivery of the Goods caused by a Force Majeure Event or the Customer's instructions. Time for delivery shall not be of the essence unless previously agreed by the Company in writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer
  • 6.3 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's instructions.
  • 6.4 If the Customer fails to take delivery of the Goods within three business days of the Company notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by the Company's failure to comply with its obligations under the Contract: (a) delivery 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 (b) the Company shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
  • 6.5 If 10 business days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Company may resell or otherwise dispose or part with 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 shortfall below the price of the Goods.

7 Risk and property

  • 7.1 Risk of damage to or loss of the Goods shall pass to the Customer:
  • 7.1.1 in the case of Goods collected by the Customer from the Company’s premises, when the Goods are loaded at the Company’s premises.
  • 7.1.2 in the case of Goods to be delivered, other than at the Company’s premises, at the time of the delivery or
  • 7.1.3 if the Customer wrongfully fails to take delivery of the Goods at the time when the Company has tendered delivery of the Goods.
  • 7.2 Notwithstanding delivery and the passing of the risk in the Goods in any other provision of these Conditions the property in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Company to the Customer for which payment is then due.
  • 7.3 Until such time as the property in 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 separate from those of the Customer and third parties and properly stored protected and insured and identified as the Company’s property. Until that time the Customer shall not be entitled to resell or use the Goods in the ordinary course of its business but shall account to the Company for the proceeds of sale or otherwise of the Goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any moneys or property of the Customer and third parties and in the case of tangible proceeds properly stored protected and insured.
  • 7.4 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company 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 and repossess the Goods
  • 7.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company but if the Customer does so all moneys owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable

8 Erections of Goods

The Company’s quotation assumes that, where delivery takes place at the Customer’s premises, the site will be easy for access for all vehicles cranes tools materials and tackle necessary to carry out the installation and continuous performance of the work during the normal working hours. Access to site must be suitable for such vehicle transporting the Goods to enter the site. The Customer must provide suitable hard standing for off-loading the Goods adjacent to the foundations. The Company is not responsible for any supporting structure or foundation work not designed and constructed by the Company and accepts no responsibility for any direct or indirect loss which may be incurred due to any insufficient or unsuitable structure or foundation. Where foundations are installed by the Customer, the Customer must accept responsibility for the accuracy of the setting out, dimensions, levels and where applicable, pockets and sole plate.

9 Limitations of liability

  • 9.1 The Company shall be under no liability in respect of any defect in the Goods arising from any drawing design or specification supplied by the Customer.
  • 9. 2 The Company shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing) misuse or alteration, modification adjustments or repair of the Goods or the use of the Goods without the Company’s written approval
  • 9.3 Where the Goods are used second hand or reconditioned they are sold as seen and approved by the Customer and the Company does not in any way warrant such goods to be fit for any particular purpose express or implied.
  • 9.4 Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
  • 9.5 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions Restrictions on Statements order 1976) the statutory rights of the Customer are not affected by these Conditions.
  • 9.6 Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Company immediately upon delivery or (where the defect or failure was not apparent on inspection or upon delivery) immediately upon discovery of the defect or failure. If delivery is not refused and the Customer does not notify the Company accordingly the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
  • 9.7 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions the Company shall be entitled to replace the Goods (or the part in question) free of charge or at the Company’s sole discretion refund to the Customer the price of the Goods (or a proportionate part of the price) but the Company shall have no further liability to the Customer.
  • 9.8 Except in respect of death or personal injury caused by the Company’s negligence the Company 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 (and whether caused by the negligence of the Company 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.
  • 9.9 Except in respect of death or personal injury caused by the Company’s negligence, the Company's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods payable by the Customer.
  • 9.10 The Company 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 the Company's obligations in relation to the Goods if the delay or failure was due to any cause beyond the Company’s reasonable control ("Force Majeure Event"). Without prejudice to the generality of the foregoing the following shall be regarded as a Force Majeure Event:
  • 9.10.1 Act of God explosion flood tempest fire nuclear fall-out or accident.
  • 9.10.2 War or threat of war sabotage insurrection civil disturbance or requisition.
  • 9.10.3 Acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority.
  • 9.10.4 Strikes lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party).
  • 9.10.5 Difficulties in obtaining supplies of the Goods raw materials labor fuel parts or machinery (whether involving the Company or a third party).
  • 9.10.6 Power failure or breakdown in machinery.

10 Insolvency of Customer

This clause applies if:

  • 10.1 The Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction).
  • 10.2 If this clause applies then without prejudice to any other right or remedy available to the Company the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without 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.

11 Insurance

Immediately upon delivery responsibility for insuring against all loss or damage and third party liability lies with the Customer and is to include all of the Company’s materials on site where the Company undertakes to carry out work to provide services of any kind on premises other than its own. Except for death or personal injury caused by its negligence, the Company shall be under no liability whatsoever for any loss or damage occasioned to the Customer his contractor’s servants employees invitees or otherwise arising from any cause connected in any way with the execution of such works or provision of such services and the Customer shall indemnify the Company against any claim by third parties.

12 Health and Safety

Where the Goods are supplied to the Customer’s specification or design the Customer shall be responsible for ensuring that so far as is reasonably practicable the Goods are so designed as to be safe and without risk to health when properly used that such testing and examination is carried out as may be necessary for ensuring that the Goods are so designed and that adequate information will be available in connection with the use of the Goods at work about the use for which they are designed and have been tested and about any condition necessary to ensure that when put to that use the goods will be safe and without risk to health and the Customer shall indemnify the Company against any claims which may be made against the Company whether under the Health and Safety at Work Act 1974 or the regulations made there under or otherwise arising out of any failure on the part of the Customer to carry out the foregoing responsibilities of the Customer and for all costs and expenses incurred by the Company in dealing with any such claims and rectifying any defects in the goods.

13 Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

 

Dainton Portable Buildings Terms & Conditions Version 3, 18 August 2016

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