In these Conditions
"Seller" means Knauf Insulation Limited (company no.01926842) of Stafford Road, St. Helens, Merseyside WA10 3NS.
"Buyer" means the person who accepts the Seller’s Written quotation for the sale of the Goods or whose written order for the Goods is accepted by the Seller.
“Conditions” means the terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and the Seller.
"Contract" means the contract for the sale and purchase of the Goods.
“Goods” means the goods (including any instalment of the goods or any part of them) which the Seller is to supply in accordance with these Conditions.
"Writing" and any similar expression, includes facsimile transmission and comparable means of communication, including electronic mail.
2. Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with the Seller’s Written quotation (if accepted by the Buyer), or the Buyer’s Written order (if accepted by the Seller), subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.. 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.
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 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller‘s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Seller's sales literature.
3.4 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.
3.5 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.
3.6 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.
3.7 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.
3.8 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a drawing, design or specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's drawing, design or specification.
4.1 Prices quoted refer to the stipulated quantities of Goods in an order only and will not necessarily hold good for other quantities. Unless otherwise stated all prices quoted are delivered prices.
4.2 All prices quoted are valid for 14 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.3 Prices are exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5. Variation of Prices
The Seller reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
Unless otherwise agreed in Writing, 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. The time of payment of the price shall be of the essence of the Contract. 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.
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 in Writing. If the Seller accepts the Buyer’s requirements for special packaging specifications, then the Seller shall be entitled to charge the Buyer any additional costs incurred by the Seller in connection with these specifications and such costs will be shown as a separate item on the Seller’s 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 shall have occurred when the Seller has notified the Buyer that the Goods are ready and at the place of delivery, which, unless agreed otherwise in Writing, shall be
(a) the Seller's premises (ex-works), or
(b) the Buyer's own premises if the Contract provides that carriage is to be effected by the Seller, its carriers or agents and the Seller has agreed in the Contract to deliver the Goods to such premises.
8.3 Seller reserves the right to deliver by instalments in which case each delivery shall constitute a separate contract and shall be invoiced accordingly. Failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated
8.4 The Seller shall use its reasonable endeavours to deliver on the date stated in the Contract but no guarantee or warranty as to the date or rate of delivery is given or implied and the Seller shall not be liable for any late delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing. 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.
8.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without limiting any other right or remedy available to the Seller, the Seller may:
(a) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
(b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
9. Risk and Property
9.1 Risk of damage to or loss of the goods shall pass to the Buyer: -
(a) 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
(b) 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 goods agreed to be sold by the Seller to the Buyer for which payment is then due.
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 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. Seller's Right to Set-off
Notwithstanding anything else provided in these Conditions, the Seller may set off any matured payment obligation due to it from the Buyer against an payment obligation owed by the Seller to the Buyer under any contract.
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 customs clearance controls, 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 six (6) months from date of delivery thereof.
12.3 The above warranty is given by the Seller subject to the following conditions:
(a) the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
(b) the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Seller's approval;
(c) the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
12.4 The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
12.5 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. Goods that are subject to any claim under this warranty must be stored by the Buyer for the Seller's inspection free of charge and in appropriate storage conditions so as to ensure that the Goods do not deteriorate.
12.6 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.
12.7 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, or liability under section 12 of the Sale of Goods Act 1979, 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
(a) the Buyer makes a composition or 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 a moratorium comes into force in respect of the Buyer (within the meaning of the Insolvency Act 1986); or
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property assets of the Buyer; or
(c) the Buyer ceases, or threatens to cease, to carry on business; or
(d) 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.
14.1 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.