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.
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.
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.
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.
(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. Seller's Right to Set-off
Notwithstanding anything else provided in these Conditions, the Seller may set off any matured obligation due to it from the Buyer against an 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 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: -
(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.
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.
15.2 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.
15.3 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.
15.4 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.