• Terms of use

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Clubb Sand and Gravel – Terms and Conditions of Sale

These terms and conditions set out the terms on which we, being either Clubb Sand and Gravel Ltd (Company No. 00442955) or Clubb Concrete Ltd (Company No. 13858031) (as set out in our quotation) of C5 Premier Business Centre, Newgate Lane, Fareham, England, PO14 1TY (“Clubb”), will provide our products (“Goods”) to any person or firm who purchases Goods from Clubb (each a “Customer”).

The Customer’s attention is drawn in particular to the provisions of clause 8.

1. Basis of contract

1.1 These terms and conditions (the “Conditions”) apply to the contract between Clubb and the Customer for the sale and purchase of the Goods (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.

1.2 Each order by the Customer, as set out in the Customer’s written acceptance of Clubb’s quotation or the Customer’s purchase order (as the case may be) (each an “Order”) constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.

1.3 The Order will only be deemed to be accepted when Clubb issues a written acceptance of the Order, at which point the Contract will come into existence.

1.4 Any samples, drawings, descriptive matter or advertising produced by Clubb and any descriptions or illustrations contained in Clubb’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They will not form part of the Contract.

1.5 A quotation for the Goods given by Clubb will not constitute an offer. Clubb reserves the right to change any quotation at any time before the Contract is formed.

2. Goods

2.1 The Goods are described in Clubb’s quotation, as modified by any applicable specification for the Goods as well as any related composition information provided by Clubb from time to time (the “Specification”).

2.2 All offers to supply Goods are made in good faith in accordance with circumstances applying on the date of the quotation and all Orders accepted by Clubb are subject to the Goods ordered being available when required by the Customer in the quantities needed.

2.3 If for any reason any Goods are not available or not available in sufficient quantities, or if Clubb is obliged to close down or reduce output from the plant from which the Goods should be supplied, Clubb shall be entitled to cancel the Customer’s order on written notice to the Customer.

2.4 Clubb reserves the right to amend any Specification from time to time if required by any applicable statutory or regulatory requirement.

3. Delivery

3.1 Clubb shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Clubb reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

3.2 In accordance with the accepted Order or as otherwise agreed in writing by Clubb:

3.2.1 Clubb shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after Clubb notifies the Customer that the Goods are ready; or

3.2.2 the Customer shall collect the Goods from Clubb’s premises or such other location as may be advised by Clubb prior to delivery (“Collection Location”) at the time they are notified to do so by Clubb in writing.

3.3 Delivery is completed on the completion of loading of the Goods at the Delivery Location or Collection Location (as applicable) (“Delivery”).

3.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Clubb shall not be liable for any delay in or failure of delivery of the Goods that is caused by any an event, circumstance or cause beyond a party’s reasonable control (a “Force Majeure Event”) or any failure by the Customer to provide adequate delivery instructions or to follow any instructions given by Clubb in respect of the collection of their Goods.

3.5 When delivering Goods, Clubb will not undertake to deliver any loads over roads or other ground which it reasonably considers to be unsuitable. The Customer shall take delivery of materials at the nearest point of accessibility to the Delivery Location as determined by Clubb’s representative or driver. A safe and proper means of access and adequate manoeuvring space to the points to which delivery is to be made shall be provided at the Customer’s expense.

3.6 Except when due to Clubb’s negligence or default (or that of its employees or authorised representatives), the Customer shall be liable for and shall indemnify Clubb against any loss, damage or expense incurred in respect of:

3.6.1 Clubb’s vehicles and their loads by reason of the unsuitability of the access at any Delivery Location;

3.6.2 roadways, footpaths, manholes, mains, pipes, bridges, weighbridges or any other property whatsoever by reason of the weight or nature of Clubb’s vehicles and their loads; and

3.6.3 any other property belonging to Clubb, the Customer or any third party which may be damaged as a result of the Customer’s failure to provide adequate access for Delivery and/or to collect any Goods in accordance with Clubb’s instructions.

3.7 If the Customer fails to take or accept (as applicable) Delivery of the Goods at the time required by Clubb (in accordance with these Conditions), then, except where such failure or delay is caused by a Force Majeure Event or Clubb’s failure to comply with its obligations under the Contract in respect of the Goods, Clubb 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 shortfall below the price of the Goods.

3.8 If Clubb 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.

3.9 Clubb may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4. Quality and Suitability

4.1 Clubb warrants that on delivery any Goods shall:

4.1.1 in the case of concrete products only, conform in all material respects with BS 8500 (including any subsequent revision or replacement thereof), provided always that the Customer undertakes testing in respect of the same (carried out in accordance with BSEN 12350/12390) and the test results are interpreted in accordance with BS8500;

4.1.2 conform in all material respects with the Specification;

4.1.3 be free from material defects in composition, material and workmanship; and

4.1.4 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

4.2 Save in respect of the warranties given in clause 4.1, the Customer shall be solely responsible for and Clubb shall have no liability in respect of the suitability of the Goods ordered for the Customer’s proposed use of the same.

4.3 Subject to clause 4.4, if:

4.3.1 the Customer gives notice in writing to Clubb within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1;

4.3.2 Clubb is given a reasonable opportunity of examining such Goods; and

4.3.3 the Customer (if asked to do so by Clubb) allows Clubb to collect such Goods,

Clubb shall, at its option, replace the defective Goods or refund the price of the defective Goods in full.

4.4 Clubb shall not be liable for the Goods’ failure to comply with the warranty set out in clause 4.1: 4.4.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 4.3;

4.4.2 the defect arises because the Customer failed to follow Clubb’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same, including (in the case of concrete products) the use of any such concrete Goods in concrete pumps, as they are not designed for this;

4.4.3 the defect arises as a result of Clubb following any specification supplied by the Customer;

4.4.4 the Customer alters such Goods without the written consent of Clubb, including (in the case of concrete products) the slump, strength or quality of any concrete Goods to which additional water or any other material has been added by the Customer or at the Customer’s request;

4.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions, including (in the case of concrete products) any segregation of the concrete which results from the Customer’s failure to take adequate precautions in respect of the same when the concrete is discharged by conveyor; or

4.4.6 the Goods differ from [their description OR the Specification] as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

4.5 Except as provided in this clause 4, Clubb shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 4.1.

4.6 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.

4.7 These Conditions shall apply to any replacement Goods supplied by Clubb.

5. Title and Risk

5.1 The risk in the Goods shall pass to the Customer:

5.1.1 for concrete products, at the moment of their discharge from the delivery truck or from our plant into any container provided by the Customer; and

5.1.2 for aggregate products, on Delivery of the Goods.

5.2 The title to and ownership of the Goods shall pass to the Customer:

5.2.1 for concrete products, at the moment of their discharge from the delivery truck or from our plant into any container provided by the Customer; and

5.2.2 for aggregate products, on the earlier of the date:

(a) when Clubb receives payment in full (in cash or cleared funds) for the Goods and any other goods Clubb has supplied to them in respect of which payment is due (in which case title passes at the time of payment of all such sums); and

(b) when the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 5.4.

5.3 Until title to the Goods has passed to the Customer, the Customer shall:

5.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Clubb’s property;

5.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

5.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

5.3.4 notify Clubb immediately if it becomes subject to any of the events listed in clause 9.2.2 to clause 9.2.5; and

5.3.5 give Clubb such information as Clubb may reasonably require from time to time relating to the Goods and the ongoing financial position of the customer.

5.4 Subject to clause 5.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Clubb receives payment for the Goods. However, if the Customer resells the Goods before that time it does so as principal and not as Clubb’s agent and title to the Goods shall pass from Clubb to the Customer immediately before the time at which resale by the Customer occurs.

5.5 At any time before title to the Goods passes to the Customer, Clubb may:

5.5.1 by notice in writing, terminate the Customer’s right under clause 5.4 to resell the Goods or use them in the ordinary course of its business; and

5.5.2 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

6. Price

6.1 The price for the Goods will be the price stated in our quotation or otherwise agreed by us writing for each Order.

6.2 We reserve the right to amend any price quoted for products immediately on notice to the Customer as a result of:

6.2.1 any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, fuel, haulage, materials and other costs);

6.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered;

6.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give us adequate or accurate information or instructions; or

6.2.4 where the Customer requests delivery on Saturdays, Sundays, public holidays or any other days or times outside our normal working hours.

6.3 Unless otherwise stated all of our prices are based on delivery in full loads:

6.3.1 for all readymixed concrete products, all part loads, other than one required to complete a pour, are liable to an additional charge in relation to the unfilled capacity of the delivery vehicle. In the event that discharge is not completed within the stipulated time, the customer will be charged extra unless otherwise stated on our readymixed concrete quotation; and

6.3.2 for all aggregate products, an extra charge will be made for materials shot to order in small heaps. Sample loads will be charged for as a normal supply. When our goods or materials are delivered by tipping vehicle, fifteen minutes from time of its arrival will be allowed for unloading, after which demurrage will be charged. When collecting excavated or surplus material on a volume basis, fifteen minutes will be allowed for our vehicle to be loaded by the Customer’s machine, after which standing time is chargeable.

6.4 Unless otherwise stated, the price of the Goods:

6.4.1 excludes amounts in respect of value added tax (“VAT”), which the Customer shall additionally be liable to pay to Clubb at the prevailing rate, subject to the receipt of a valid VAT invoice; and

6.4.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

7. Payment and Credit Terms

7.1 We may invoice the Customer for the Goods on or at any time.

7.2 We reserve the right to refuse to execute any order if the arrangements for payment of the Customer’s account are not satisfactory to us and suspend or discontinue delivery of any Goods to any Customer whose account is overdue for payment.

7.3 All of our invoices for Goods on presentation, except where the Customer has been approved for a credit account with Clubb, in which case all invoices are payable in full within 30 days of the end of the month in which Delivery is made. Time of payment is of the essence.

7.4 We reserve the right to withdraw approval of an account and to charge interest on any account which remains unpaid 30 days or more, such interest to be calculated on a daily basis commencing 30 days after the date of any invoice rendered by us, at the rate of 8% per annum above the Bank of England’s Base Rate.

7.5 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Limitation of liability

8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

8.2.1 death or personal injury caused by negligence;

8.2.2 fraud or fraudulent misrepresentation;

8.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

8.2.4 defective products under the Consumer Protection Act 1987.

8.3 Subject to clause 8.2, Clubb’s total liability to the Customer shall not exceed the price paid by the Customer for the Order the liability relates to or arose from.

8.4 Subject to clause 8.2, the following types of loss are wholly excluded:

8.4.1 loss of profits;

8.4.2 loss of sales or business;

8.4.3 loss of agreements or contracts;

8.4.4 loss of anticipated savings;

8.4.5 loss of or damage to goodwill; and

8.4.6 indirect or consequential loss.

8.5 This clause 8 shall survive termination of the Contract.

9. Termination

9.1 The Customer shall not be entitled to cancel any Order once accepted by Clubb without the express prior written consent of Clubb given prior to the batching or loading of the Goods in question. Where any Order is cancelled in accordance with this clause, the Customer shall remain liable to pay all costs incurred by Clubb in respect of that Order prior to cancellation.

9.2 Without limiting its other rights or remedies, Clubb may terminate any Contract with immediate effect by giving written notice to the Customer if:

9.2.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;

9.2.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), being made bankrupt, having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

9.2.3 the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their affairs or becomes a patient under any mental health legislation;

9.2.4 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

9.2.5 the Customer’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.

9.3 Without limiting its other rights or remedies, Clubb may suspend provision of the Goods under the Contract or any other contract between the Customer and Clubb if the Customer becomes subject to any of the events listed in clause 9.2.2 to clause 9.2.5, or Clubb reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

9.4 Without limiting its other rights or remedies, Clubb may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract (or any other Contract between Clubb and the Customer) on the due date for payment.

9.5 On termination of the Contract for any reason the Customer shall immediately pay to Clubb all of Clubb’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Clubb shall submit an invoice, which shall be payable by the Customer immediately on receipt.

9.6 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. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

10. Force majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 14 days’ written notice to the affected party.

11. Notices

11.1 Any notice given to a party under or in connection with the Contract will be in writing and will be 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).

11.2 Any notice will be deemed to have been received, at the time notice is left at the proper address (if delivered by hand) or at 9.00am on the second working day after posting (if sent by pre-paid first class post or any other next working day delivery service).

11.3 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. General

12.1 Assignment and other dealings - Clubb may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Clubb.

12.2 Entire agreement - The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

12.3 Variation - No variation of this Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.4 Waiver - A waiver of any right or remedy is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy will not waive that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.

12.5 Severance - If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 12.5 the parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

12.6 Third party rights - 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.

12.7 Governing law and jurisdiction - The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation, will be governed by and construed in accordance with English law and the English courts will have exclusive jurisdiction to settle any such dispute or claim.

12.8 Interpretation – The following rules of interpretation apply in these Conditions:

12.8.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

12.8.2 A reference to a party includes its personal representatives, successors and permitted assigns.

12.8.3 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.

12.8.4 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.

12.8.5 A reference to writing or written includes email but not fax.

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