1

Definitions

1.1

“Buyer” means the person who accepts a quotation from Kingspan for the sale of the Goods or whose order for the Goods is accepted by Kingspan.

1.2

“Conditions” means the terms and conditions of sale of Kingspan set out in this document and includes any special terms and conditions agreed in Writing between the Buyer and Kingspan.

1.3

“Contract” means the contract for the sale of the Goods.

1.4

“Force Majeure” means any cause beyond Kingspan’s reasonable control, including without limitation Act of God, explosion, flood, fire or accident, war, civil disturbance, acts, regulations, or measures of any kind on the part of any governmental, parliamentary or local authority, strikes, or other industrial action, difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.

1.5

“Goods” means manufactured building products, building systems or ancillaries (including any instalment of the Goods or any parts for them) which Kingspan is to supply in accordance with these Conditions.

1.6

“Kingspan” means Kingspan Metl-Con Limited, Sherburn, Malton North Yorkshire YO17 8PQ (registered in England and Wales under number 3263720).

1.7

“Seconds” means Goods that are not premium grade and are accepted by the Buyer in advance as being defective and hence sold at a reduced price.

1.8

“Writing” includes facsimile transmission, electronic mail and post and any other comparable means of communication.

2

Basis for the Sale

2.1

Kingspan shall sell and the Buyer shall purchase the Goods in accordance with (i) any written quotation by Kingspan (“Kingspan’s Quotation Document”) which is accepted by the Buyer, or (ii) any written order of the Buyer (“the Buyer’s Order”) which is accepted by Kingspan, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions unless expressly agreed otherwise.

2.2

No variation to these Conditions shall be binding unless agreed in Writing between authorised representatives of each Party.

2.3

Only an authorised representative of Kingspan may make representations regarding the Goods and such representation must be in Writing.

2.4

Any advice or recommendation given by Kingspan 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 Kingspan is followed or acted upon entirely at the Buyer’s own risk, and accordingly Kingspan shall not be liable for any such advice or recommendation which is not so confirmed.

3

Orders and Specifications

3.1

No order submitted by the Buyer shall be deemed to be accepted by Kingspan unless and until confirmed in Writing by Kingspan’s authorised representative.

3.2

The Buyer shall be responsible to Kingspan for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving Kingspan any necessary information relating to the Goods within a sufficient time to enable Kingspan to perform the Contract in accordance with its terms.

3.3

The specification and design of the Goods (including the copyright, design right or other intellectual property in them) shall be the property of Kingspan. Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of Kingspan then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of goods shall not infringe any of the rights of any third party, and the Buyer shall be liable for and indemnify Kingspan against all loss, damages, costs and expenses awarded against or incurred by Kingspan in connection with or paid or agreed to be paid by Kingspan in settlement of any such claim.

3.4

Kingspan reserves the right to make any changes in the specification of the Goods without notice to the Buyer which are required to conform with any applicable safety or other statutory or EU requirements or, where the Goods are to be supplied to Kingspan’s specification, which do not materially affect their quality or performance.

3.5

No order which has been accepted by Kingspan may be cancelled by the Buyer except with the agreement in Writing of Kingspan and on terms that the Buyer shall indemnify Kingspan 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 Kingspan as a result of cancellation.

4

Price of the Goods

4.1

All prices quoted are valid for 30 days only after which time they may be altered by Kingspan without giving notice to the Buyer. If no price has been quoted (or a quoted price is no longer valid), the price listed in Kingspan’s applicable published price list current at the date of acceptance of the order shall apply.

4.2

Kingspan reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to Kingspan which is due to any factor beyond the control of Kingspan, 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 Kingspan adequate information or instructions.

4.3

Unless otherwise stated all prices given by Kingspan are inclusive of delivery within the UK. Where delivery charges are applicable, the Buyer shall be liable to pay Kingspan’s charges for transport, packaging and insurance.

4.4

The price of the Goods is exclusive of any applicable VAT, which the Buyer shall be additionally liable to pay to Kingspan.

4.5

The cost of any returnable packing material will be charged to the Buyer in addition to the price of the Goods.

5

Terms of Payment

5.1

Kingspan shall be entitled to invoice the Buyer for the price of the Goods at any time after a Contract is entered into for the Goods.

5.2

Unless otherwise agreed, the Buyer shall pay the price of the Goods within 30 days of the end of the month of the date of Kingspan’s invoice, notwithstanding delivery. Time of payment shall be of the essence of the Contract.

5.3

If the Buyer fails to make any payment on the due date, then Kingspan shall be entitled to:

5.3.1

cancel the Contract or suspend any further deliveries to the Buyer; and/or

5.3.2

appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract between the Buyer and Kingspan) as Kingspan may think fit.

6

Delivery

6.1

Delivery of the Goods shall be made by Kingspan to such port or address in the UK as specified in the order document accepted by Kingspan. .

6.2

Dates quoted for delivery of the Goods are approximate only and Kingspan shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence unless previously agreed by Kingspan in Writing. The Goods may be delivered by Kingspan in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.3

Where the Goods are to be delivered in instalments, failure by Kingspan to deliver any one or more of the instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated

6.4

If Kingspan fails to deliver the Goods for any reason other than any cause beyond Kingspan’s reasonable control or the Buyer’s fault, and Kingspan is accordingly liable to the Buyer, Kingspan’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest alternative market) of goods of similar specification to the Goods to replace those not delivered over the price of the Goods.

6.5

If the Buyer fails to take delivery of the Goods or fails to give Kingspan adequate delivery instructions at the time stated for delivery then, Kingspan may (without incurring any liability):

6.5.1

store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

6.5.2

sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.

7

Risk and Property

7.1

Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, at the time when Kingspan has tendered delivery of the Goods in accordance with the quoted delivery date.

7.2

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 Kingspan 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 Kingspan to the Buyer for which payment is then due.

7.3

Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Kingspan’s agent and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Kingspan’s property. The Buyer shall still be entitled to sell or use the Goods in the ordinary course of its business but shall account to Kingspan for the proceeds of sale of the Goods, including any insurance proceeds.

7.4

Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) Kingspan shall be entitled at any time to require the Buyer to deliver up the Goods to Kingspan and to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

7.5

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 property of Kingspan but if the Buyer does so, all monies owing by the Buyer to Kingspan shall (without prejudice to any other right or remedy of Kingspan) forthwith become due and payable.

7.6

The Buyer shall not be entitled to withhold payment of any amount payable under the Contract to Kingspan because of any disputed claim of the Buyer in respect of defective Goods or any other breach of the Contract nor shall the Buyer be entitled to set off against any amount payable under the Contract to Kingspan any monies which are not then presently payable by Kingspan for which Kingspan disputes liability.

8

Warranties and Liability

8.1

Except where the Goods sold are Seconds and subject to the conditions set out below, Kingspan warrants that at the time of delivery the Goods will correspond with their specification and will be free from defects in material workmanship for a period of six months from the date of their initial use or six months from delivery, whichever is the first to expire.

8.2

The above warranty is given by Kingspan subject to the following conditions:

8.2.1

Kingspan shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;

8.2.2

Kingspan 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 Kingspan’s instructions (whether oral or in writing) including as to installation, misuse or alteration or repair of the Goods without Kingspan’s approval;

8.2.3

Kingspan shall be under no liability in respect of any defect arising from the unsuitability of the site or foundations, or defective installation works;

8.2.4

Kingspan 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;

8.2.5

the warranty in Clause 8.1 does not extend to parts, materials or equipment not manufactured by Kingspan 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 Kingspan; and

8.2.6

the warranty in Clause 8.1 does not extend to Goods in respect of which an express guarantee or warranty is issued in Writing and signed by or on behalf of Kingspan, whether or not such express warranty is stated to be in substitution for the provisions of Clause 8.1.

8.3

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.

8.4

Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall be notified to Kingspan within 14 days after discovery of the defect or failure. If delivery is not refused and the Buyer does not notify Kingspan accordingly, the Buyer shall not be entitled to reject the Goods and Kingspan 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.

8.5

Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to Kingspan in accordance with these Conditions, Kingspan shall be entitled to replace the Goods (or the part in question) or at Kingspan’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price) but Kingspan shall have no further liability to the Buyer.

8.6

For the avoidance of doubt, to the fullest extent permitted by law Kingspan shall have no liability to the Buyer whatsoever in relation to any claim in respect of any Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification where the Goods in question were sold as Seconds.

8.7

Except in respect of death or personal injury caused by Kingspan’s negligence, Kingspan 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 under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Kingspan, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or re-sale by the Buyer. Where applicable, the entire liability of Kingspan under or in connection with the Contract shall not in any event exceed the price of the Goods, except as expressly provided in these Conditions.

8.8

Kingspan 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 Kingspan’s obligations in relation to the Goods, if the delay or failure was due to Force Majeure

9

Indemnity

9.1

If any claim is made against the Buyer that the Goods infringe or that their use or sale infringes the patent, copyright, design, trademark or other industrial or intellectual property rights of any other person, then subject always to Clause 3.3, Kingspan shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:

9.1.1

Kingspan is given full control of any proceedings or negotiations in connection with any such claim;

9.1.2

the Buyer shall give Kingspan all reasonable assistance for the purposes of any such proceedings or negotiations;

9.1.3

except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of Kingspan (which shall not be unreasonably withheld);

9.1.4

the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent if the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);

9.1.5

Kingspan shall be entitled to the benefit of, and the Buyer shall accordingly account to Kingspan for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonable withheld) to be paid by any other party in respect of any such claim; and

9.1.6

without prejudice to any duty of a Buyer at common law, Kingspan shall be entitled to require the Buyer to take such steps as Kingspan may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which Kingspan is liable to indemnify the Buyer under this clause.

10

Insolvency of Buyer

10.1

Kingspan shall be entitled to 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 in the event that:

10.1.1

the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

10.1.2

an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or

10.1.3

the Buyer ceases, or threatens to cease, to carry on business; or

10.1.4

Kingspan reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

11

Export Terms

11.1

In these Conditions ‘Incoterms’ means the International Rules for the Interpretation of Trade Terms of The International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions but if there is any conflict between the provisions of Incoterms and these Conditions, these Conditions shall prevail.

11.2

Where the Goods are supplied for export from the United Kingdom the provisions of this clause 11 shall (subject to any special terms agreed in Writing between the Buyer and Kingspan) apply notwithstanding any other provision of these Conditions.

11.3

The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and the exportation from the country of manufacture and for the payment of any duties thereon.

11.4

The Buyer shall be entitled to attend the testing and inspection of the Goods by Kingspan at Kingspan’s premises before export transportation. Kingspan shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

11.5

Unless otherwise agreed in Writing by Kingspan, payment of all amounts due to Kingspan under export orders shall be made by irrevocable letter of credit opened by the Buyer in favour of Kingspan and confirmed by a bank in the United Kingdom acceptable to Kingspan.

12

General

12.1

Any notice required to be given to either party under these Conditions shall be in Writing addressed to that party at its registered office or principal place of business.

12.2

No waiver by Kingspan of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

12.3

If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

12.4

Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration within 21 days of notification in Writing to the other party of such a dispute by a single arbitrator appointed by agreement or in the absence of agreement as nominated, on the application of either party, by the President for the time being of the Chartered Institute of Arbitrators in accordance with the rules of that Institute. The parties shall procure that the arbitrator shall then have 28 days from being appointed to make a decision, acting as arbitrator and not expert, which decision shall be final and binding on the parties.

12.5

The Contract shall be governed by the laws of England and Wales.

12.6

Any person who is not a party to these Conditions has no right under the Contracts (Rights of Third Party) Act 1999 (“the Act”) to enforce any term of these Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.