Conditions of Sale
1.
Interpretation
In these Conditions
"Seller" means Knauf Insulation Limited / Knauf Drywall.
"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.
"Writing" and any similar expression, includes facsimile
transmission and comparable means of communication, including
electronic mail.
2.
Basis of the Sale
2.1 Contracts and orders are accepted only
subject to the Seller's General Conditions of Sale as set out
herein and the Seller's Special Conditions of Sale (if any)
endorsed on the reverse hereof and the Buyer shall be bound by such
Conditions. 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 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.
4.
Prices
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. 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.
Payment
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. 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. 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.
7.
Packing
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.
Delivery
(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.
(2) Delivery shall be when the goods are
ready and at the Buyer's nominated place of delivery which shall
be
(a) The Seller's premises if
either the Buyer or the Buyer's carrier or agent collects, or if
written nomination has been received by the time the goods are
ready, or
(b) at the Buyer's own premises if
carriage is effected by the Seller, its carriers or agents.
(3) Following delivery, the goods shall
be at the sole risk of the Buyer. 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. 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 and
the Seller accepts no liability for late delivery or loss of profit
or any consequential damage arising therefrom. No delivery shall be
considered as overdue until the Buyer has made a written request
for delivery and given the Seller reasonable time to comply with
such request.
9. Risk and Property
(1) Risk of damage to or loss of the goods shall
pass to the Buyer: -
(i) 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
(ii) 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 wrongfully 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.
(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 goods agreed to be sold by the Seller to
the Buyer for which payment is then due.
(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.
(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.
(5) 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.
10. 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:
10.1 Act of God, explosion, flood,
tempest, fire or accident;
10.2 war or threat of war, sabotage,
insurrection, civil disturbance or requisition;
10.3 acts, restrictions, regulations,
bye-laws, prohibitions or measures of any kind on the part of any
governmental, parliamentary or local authority;
10.4 import or export regulations or
embargoes;
10.5 strikes, lock-outs or other
industrial actions or trade disputes (whether involving employees
of the Seller or of a third party);
10.6 difficulties in obtaining raw
materials, labour, fuel, parts or machinery;
10.7 power failure or breakdown in
machinery.
11. Warranty and
Liability
11.1 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.
11.2 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.
11.3 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.
11.4 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.
12. Insolvency of
Buyer
12.1 This clause applies if
12.1.1 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
12.1.2 an encumbrancer takes possession, or a
receiver is appointed, of any of the property assets of the Buyer;
or
12.1.3 the Buyer ceases, or threatens to
cease, to carry on business; or
12.1.4 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.
12.2 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.
13. 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: -
(i)
by both the Seller and the carrier within three days of delivery in
respect of damage, delay or partial loss in transit;
(ii)
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.
14. General
14.1 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.
14.2 The Seller is a member of the 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.
14.3 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.
14.4 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.