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In these Conditions
‘Seller’ means Knauf Insulation Limited (company number 1926842), PO Box 10, Stafford Road, St Helens, Merseyside
WA10 3NS, United Kingdom.
‘Buyer’ means the person whose written order for the Goods is accepted by the Seller.
‘Contract’ means the contract for the sale and purchase of the Goods, incorporating these General Conditions of Sale.
‘Goods’ means any goods agreed in the Contract to be supplied to the Buyer by the Seller (including any part or parts of them).
‘Service Guidelines’ means the service guidelines issued by the Seller from time to time.
‘Writing’ and any similar expression includes facsimile transmission, electronic mail and EDI (‘Electronic Data Interchange’) but shall NOT include SMS or any other forms of electronic communication.
2. Basis of the Sale
2.1 Contracts and orders are accepted only subject to the Seller's General Conditions of Sale (‘the Conditions’) as set out herein to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document). No modification or variation of these Conditions or the particulars contained in the Seller's acceptance shall be binding on the Seller unless expressly accepted by the Seller in Writing. Unless so agreed any qualification thereof or terms stipulated or referred to in the Buyer's own order forms shall be inapplicable.
2.2 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted on entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and Specification
3.1 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Seller's sales literature.
3.2 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
3.3 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
3.4 The Buyer confirms that he relies on his own skill and judgment in determining the suitability of the Goods ordered for any particular purpose. The Seller gives no warranties as to the suitability of its Goods for any particular purpose. Unless agreed by the Seller otherwise in Writing, the Buyer is solely responsible for ensuring suitability of the Goods for his purposes.
3.5 All Goods supplied by the Seller are in accordance with the description stated in the product literature published and are subject to any tolerances stated in that literature. If the Goods are ordered by brand name the Seller reserves the right to substitute similar Goods which perform to the same standard.
3.6 Any quotation is given on the basis that no Contract shall come into existence until the Seller despatches an acknowledgement of order to the Buyer.
Prices quoted refer to the stipulated quantities only and will not necessarily hold good for other quantities. Unless otherwise stated all prices quoted are delivered prices to mainland UK or to mainland Eire as appropriate. VAT not included in the quotation or invoice will be added where and at the rate applicable.
5. Variation of Prices
The Seller reserves the right to alter the quoted prices of all or any of the Goods at any time without notice in the event of any variation in costs incurred by the Seller after acceptance of the Buyer's order. Orders are accepted at the prices current at the time of acceptance and on the understanding that they may be invoiced at prices ruling on the date of despatch irrespective of prices previously quoted. The quoted price is also subject to adjustment if any changes are made by the Buyer in the specification or quantities of the Goods or delivery requirements.
6.1 Unless otherwise specified the Goods or each instalment of the Goods in cases where they are to be delivered by instalments shall be paid within 30 days from the end of the month in which the relevant Seller’s invoice has been issued.
6.2 Time for payment shall be of the essence and no payment shall be deemed to have been received until the Seller has received cleared funds.
6.3 Failure to make payment at the due date shall entitle the Seller to suspend deliveries until payment is made or to cancel the Contract in Writing, or to treat the Contract as repudiated by the Buyer without prejudice to the Seller's rights to damages for breach of contract.
6.4 If there is any delay in making payment the Seller shall be entitled to charge interest on the outstanding amount at 8 per cent above the base rate charged by the Seller’s bankers from time to time from the due date until the date of actual payment.
6.5 All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.
Unless otherwise agreed the Goods shall be delivered in the Seller's or the manufacturer's standard packing. Special packaging specifications to meet the Buyer's requirements must be referred to the Seller for review and acceptance. The Seller shall make a charge for this and the cost will be shown as a separate item on the invoice.
8.1 Every effort will be made to maintain delivery dates but the Seller accepts no liability for delay however occasioned or for the consequences of any delay. Time of delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing.
8.2 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
8.3 If for any reason the Buyer fails to promptly take delivery of any of the Goods when he has been notified that they are ready for delivery, or if the Seller is unable to deliver the Goods on time due to any fault, act or omission by the Buyer, then the Goods shall be deemed to have been delivered and the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including without limitation, storage and insurance).
8.4 The Seller reserves the right to deliver by instalments in which case each delivery shall constitute a separate Contract without prejudice to subsequent deliveries and shall be invoiced accordingly. No cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment. The Seller shall use its reasonable endeavours to deliver on the date stated but no guarantee or warranty as to the date or rate of delivery is given or implied.
8.5 Subject to the other provisions of these Conditions the Seller shall not be liable for any direct, indirect or consequential loss (all these terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence), nor shall any delay entitled the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
8.6 Unloading of the Goods from transport at the place of delivery is the Buyer’s responsibility and takes place at the Buyer’s risk. The Buyer must ensure that facilities are available and that the Goods are unloaded promptly. In the event the Buyer does not complete unloading of the Goods within two (2) hours from the time of delivery (or within such other time for unloading as is agreed by the Seller in Writing), the Seller shall be entitled to charge the Buyer demurrage at the Seller’s standard rates as set out in the Seller’s Service Guidelines for each additional hour or part thereof up to the time at which the Goods have been unloaded.
9. Risk and Property
9.1 Risk of damage to or loss of the Goods shall pass to the Buyer: -
9.1.1 in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
9.1.2 in the case of the Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods. Unloading of the Goods from the transport at the Buyer's premises is at the Buyer's risk.
9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other sums which are or which become due to the Seller from the Buyer on any account.
9.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property, but the Buyer may resell or use the Goods in the ordinary course of its business.
9.4 Until such time as the property of the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to it and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
9.5 The Seller shall be entitled to recover payment for the Goods notwithstanding that the property in any of the Goods has not passed from the Seller.
9.6 The Buyer 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 Seller's property, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
9.7 On termination of the Contract, howsoever caused, the Seller’s rights contained in this condition 9 shall remain in effect.
10. Seller’s Right to Set-off
Notwithstanding anything else provided in these Conditions, the Seller may set off any obligation owed by the Seller to the Buyer under any Contract against any matured obligation due to the Seller from the Buyer on any account.
11. Force Majeure
The Seller shall not be liable to the Buyer 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 Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:
11.1 Act of God, explosion, flood, tempest, fire or accident;
11.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
11.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
11.4 import or export regulations or embargoes;
11.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
11.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
11.7 power failure or breakdown in machinery.
12. Warranty and Liability
12.1 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.
12.2 The Seller warrants the Goods to be free from defects in material and workmanship for a period of 6 months from date of receipt thereof. A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specifications shall (whether or not delivery is refused by the Buyer) be notified to the Seller within seven (7) days from the date of delivery or where the defect or failure was not apparent on reasonable inspection within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
12.3 Where a claim in respect of any of the Goods which is based on defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions and the Seller has accepted such claim following an investigation by the Seller, the Seller may replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.
12.4 Except in respect of death or personal injury caused by the Seller's negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
13. Insolvency of Buyer
13.1 This clause applies if
13.1.1 the Buyer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
13.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property assets of the Buyer; or
13.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
13.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
13.2 If this clause applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
14 . Claims for non-delivery / short delivery / Goods damaged in transit
The Buyer shall inspect the Goods immediately on delivery thereof. If the Buyer fails to give notice or report in accordance with these provisions the Buyer shall be bound to accept and pay for the same at the time or times specified in these conditions unless a written claim is received: -
14.1 by both the Seller and the carrier within three days of delivery in respect of damage, delay or partial loss in transit;
14.2 by both the Seller and the carrier within 28 days of despatch in respect of non-delivery; Goods subject to any claim must be stored free of charge for the Seller's inspection.
15.1 The Seller's rights shall not be affected or restricted by any indulgence or forbearance granted to the Buyer. No waiver by the Seller of any breach shall operate as a waiver of any later breach of the same or any other provision.
15.2 The Seller is a member of a group of companies, and accordingly the Seller may perform any of its obligations or exercise any of its rights under the Contract by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.
15.3 The Seller shall be entitled at any time to assign the Contract or any part of it to any person firm or company. The Buyer may assign the Contract or any part of it only if he has obtained in Writing the prior consent of the Seller to such assignment.
15.4 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
15.5 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
15.6 A notice required or permitted to be given by either party to the other under a Contract shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.