1.1 “Buyer” means the person who buys or agrees to buy goods from the Company
1.2 “Company” means Alsecco (UK) Limited authorised supplier of “Lithodecor” and “Caparol” products
1.3 “Goods” means the goods which the Buyer buys or agrees to buy from the Company
1.4 “Conditions” means the terms set out in this document which are the Company’s standard conditions of sale
1.5 “Contract” means the contract between the Company and the Buyer for the sale and purchase of the Goods in accordance with these Conditions and shall constitute these Conditions and the written acknowledgement of order
1.6 “Panel” means any facade panel forming the subject matter of any Contract.
1.7 The Conditions shall be deemed to be incorporated into all or any agreements from time to time entered into between the Company and the Buyer which provide in whole or in part for the sale of any Goods by the Company to the Buyer and shall govern relations between the Buyer and the Company to the exclusion of any standard terms and conditions contained in any of the Buyer’s documents (whether or not the Buyer’s standard terms or conditions purport to prevail over these Conditions). Acceptance of any delivery or performance by or on behalf of the Buyer shall in any event be conclusive evidence of the Buyer’s acceptance of these Conditions.
No variation of the Conditions shall be effective unless agreed in writing by a Director of the Company and (for the avoidance of doubt) no representative of the Company other than a Director shall have authority to agree any such variation on behalf of the Company.
Quotations by the Company are not offers capable of immediate acceptance by the Buyer but are invitations to treat only. Quotations remain valid for a period of 30 days (or such other period as may be stated on the quotation) from the date of the quotation. Quotations are valid only for the specific type and quantity of goods as set out in the quotation. No property shall pass to the Buyer in the documents forming or accompanying a quotation or in any of the material contained therein. If no order based on the quotation is accepted by the Company, the Buyer shall return to the Company all documents and other materials concerned free of charge to the Company on request.
4. Description and Information
4.1 The information supplied by the Company (including information contained in advertising, sales and technical literature) are approximate only. All drawings, descriptive and technical specifications, catalogues, particulars of weight and dimensions and all other technical data supplied by the Company are approximate and are provided for general guidance only. No such information or data shall form part of the Contract and the Company reserves the right without notice to the Buyer to make alterations thereto.
4.2 Notwithstanding that any goods may have been exhibited to or inspected by the Buyer no Contract shall constitute a sale by sample.
4.3 Due to the nature of natural and raw materials and the manufacturing process variation in shade, colour, texture or veining may be an inherent characteristic in certain Goods. The Company accepts no liability for such variations nor shall any claim be available in respect of such variations under Paragraph 16 or at all.
4.4 Natural stone products may need to include visible hair joints depending upon the nature of the quarried stone. Where appropriate the quotation includes for hair joints.
4.5 The Company cannot guarantee to match Goods to the shade, colour or texture of goods purchased under any previous contract with the Company.
4.6 Any specifications for Panels or other products to be fixed to the substrate are prepared on the basis that the substrate is suitable for the loads, is structurally and dimensionally sound and is within tolerance to accept Panels or such other products without modification.
4.7 The size, orientation and fixing of Panels are manufactured in accordance with the Deutsches Institut für Bautechnik standard and are supplied as such notwithstanding any requests for anything other from the Buyer.
An order constitutes an offer by the Buyer on (notwithstanding any other terms or conditions referred to by the Buyer) the terms set out in these Conditions. An order shall only be deemed to be accepted when the Company issues a written acknowledgement of order or on the Company doing any act consistent with fulfilling the order at which point, and on which date, the Contract shall come into existence. The Company shall be free to accept or refuse an order for any reason whatsoever. Expressions used by the Buyer such as “previously supplied” or expressions to the similar effect shall be understood to refer only to the quality and not the previous price.
The prices or charges specified in any quotation are related to the Company’s cost of manufacturing, obtaining and paying for Goods, parts or materials prevailing at the date thereof. In the event of there being an increase in such costs caused by any reason, including increases attributable to alterations in tax or duty or in the exchange rates of any currency, the Company shall be entitled to vary its prices or charges from those quoted whether or not such increase was or should have been foreseen by the Company at the date of the quotation. All prices quoted exclude VAT and any costs of freight and insurance for deliveries outside UK mainland unless otherwise specified. The VAT rate applicable shall be the rate prevailing on the date of invoicing.
Delivery is made only in the product containers held in stock at the time the order is processed. All prices quoted for delivery are made on the assumption that the Company’s choice of delivery vehicle will be fully loaded and if requested otherwise by the Buyer additional charges may apply. All prices quoted include packing material unless otherwise specified. Where packing is expressly stated to be in returnable containers or the cost of packaging materials is separately invoiced, the Buyer shall be credited with the full value of those materials as invoiced to him, provided that they are returned within 30 days of delivery carriage free or without any charges to the Company and, in the opinion of the Company, in a satisfactory condition to the despatch points from which they were supplied unless otherwise specified in the Company’s price list, quotation, delivery note or invoice. Failure to return returnable containers within 30 days will result in a hire charge of £50 per container per week (or part thereof) to a maximum of £1,000 per container. Any damage to returnable containers caused by the Buyer or whilst under the Buyer’s control will be recharged to the Buyer at cost. For packaging materials on loan, the conditions as mentioned in the Company’s prevailing price list and or quotation shall apply.
8. Time of Delivery
The Company shall be entitled to deliver Goods supplied pursuant to any order by the Buyer on any week day during normal working hours after the period for delivery has commenced.
9. Period For Delivery
Where a quotation indicates a specific delivery period for any Goods, the period shall be understood to run from the date of confirmation of the relevant Order. Any delivery period is given as an approximate indication only and is subject to the supply of all instructions or other matter required by the Company from the Buyer and where any Goods are to be supplied from stock, to the availability of stocks at the expected date of delivery. Any such periods as may be contained in a quotation are nevertheless estimates only which shall not be of the essence of the Contract. In the event of the Company, for any reason whatsoever, not being ready to make delivery within the period specified it shall not be liable for any loss or damage whatsoever sustained by the Buyer as a result of such delay. Without prejudice to the foregoing, in the event of the Company not being ready to make delivery at the time specified (or if none be specified within a reasonable time) the Buyer shall thereupon be entitled to give one month’s notice in writing calling for delivery and in the event of the Company remaining unable to make delivery within such a period, the Buyer may, at the expiry thereof, by a further notice in writing cancel the Contract in relation to all undelivered Goods. The Buyer shall have no other rights whatsoever in relation to any failure by the Company as aforesaid and it will be a condition precedent to the Buyer’s right to cancel that he shall first have paid all sums due in respect of Goods already delivered under the Contract.
If the Buyer gives the Company not less than seven days notice, the Company is prepared to store Goods. The Company reserves the right to make storage charges for such Goods. If the Buyer has not arranged for removal of the Goods after twelve months storage the Company shall be entitled to give one month’s notice to the Buyer that it intends to dispose of the Goods and unless, within that one month, the Buyer removes the Goods from storage the Company shall be entitled to sell all or any portion of such Goods and without prejudice to the provisions of Paragraph 19 to set off against the proceeds of sale, the costs of sale, storage charges incurred by the Buyer and any other monies due from the Buyer to the Company. The provision of this Paragraph shall apply irrespective of whether the property in the Goods shall have passed to the Buyer. Removal of Goods to storage on behalf of the Buyer under this Paragraph shall be deemed to be a delivery to the Buyer. The Buyer shall be liable to pay the full price pursuant to Paragraph 14 for any Goods so stored by the Company.
If the Buyer enters into multiple Contracts with the Company the Company reserves the right to despatch the Goods as and when the Goods are available, which may not be in the order that the Contracts were entered into. The method of transport of the Goods shall be at the sole discretion of the Company. All necessary unloading facilities shall be provided by the Buyer at his expense and risk at the time the Company is ready to make delivery. The Company reserves the right to deliver the Goods at the nearest point of suitable access. If the Buyer requests delivery to a point which is, in the delivery driver’s opinion, unsuitable for the delivery vehicle then all risk as to the condition of the Goods on delivery is with the Buyer and no claims as to the condition of the Goods will be entertained by the Company.
The Company shall be entitled to deliver the Goods in a single delivery or by instalments as it sees fit. The Buyer shall not be entitled to reject any consignment of Goods delivered by the Company on the grounds that the quantity of Goods delivered is too small or too large. In the event of short delivery then, subject to the Buyer giving written notification of short delivery, the Company shall deliver the balance of undelivered goods or give the Buyer credit for the shortfall. Where the Goods are delivered in instalments and the Buyer shall for any reason have the right to reject any instalment which has been delivered, he shall not by reason thereof have the right to treat the whole Contract as repudiated. All weights or volumes are ascertained at the time of the filling of the containers used and all invoices are calculated thereon.
13. Insurance and Risk
13.1 Unless otherwise agreed in writing between the parties but subject as hereinafter provided, the risk of loss or damage to the Goods shall pass to the Buyer upon delivery or deemed delivery to the Buyer and the Company will insure accordingly.
13.2 Notwithstanding Paragraph13.1 above, in the case of the Goods to be collected by the Buyer or by a carrier engaged by the Buyer, all risk of loss or damage howsoever caused shall pass to the Buyer on whichever of the following events occurs earlier:
13.2:1 collection of the Goods by or on behalf of the Buyer or
13.2:2 seven days from the date of the Company’s written notice that the Goods are ready for collection.
13.3 The Company shall be entitled to charge for storage of the Goods after the expiry of the seven day period referred to in Paragraph 13.2:2 above and the provisions of Paragraph 10 above shall apply to the storage of the Goods.
13.4 Where the risk of loss or damage to the Goods in transit lies with the Company, the Buyer shall carefully examine the Goods upon receipt and shall notify the Company in writing of any loss or damage:
13.4:1 in the case of loss of the Goods or of part thereof within three working days of receipt by the Buyer of a delivery note issued by the Company in respect of the Goods; and
13.4:2 in the case of damage to the Goods or part thereof within three working days of delivery; and in the case of damage to the Goods shall retain all damaged Goods and packaging for inspection by the Company and the carrier.
13.5 The Company shall not be liable in respect of any loss of or damage to the Goods in transit, howsoever caused, other than damage which could not reasonably have been discovered by the Buyer on examination of the Goods in accordance with Paragraph 13.4 unless the requirements of Paragraph 13.4 above have been fully complied with by the Buyer.
14.1 All prices and charges are strictly net and payment shall be made without any discount or other reduction unless otherwise agreed in writing by the Company. Save as is provided by Section 53 of the Sale of Goods Act 1979, the Buyer shall not be entitled to set off against the price of the Goods any debt or cross claim or alleged debt or cross claim of whatever nature claimed or made by the Buyer against the Company.
14.2 Payments, unless otherwise agreed, shall be made thirty days following the date of the Company’s invoice. In the case of delivery by instalments, payment, unless otherwise agreed, shall be made thirty days following the day of the Company’s invoice for the relevant instalments or as otherwise provided in the annexed schedule of works. Where payment for Goods is made by instalments, VAT shall be payable within seven days of issue to the Buyer of the relevant tax invoice. This sub-Paragraph is subject to and governed by the terms of Paragraph 14.5 below.
14.3 Cheques, money and postal orders should be crossed and made payable to Alsecco (UK) Limited.
14.4 The Company may at its discretion require at any time that all or part of the purchase price and other charges be paid in advance or on account and the sums so demanded shall be immediately payable by the Buyer, the balance remaining payable as otherwise provided hereunder and the Company may decline to make delivery of the Goods except upon such payment or upon receipt of other security satisfactory to the Company.
14.5 Should the Buyer default in payment for whatever reason on the due date of any sum, without prejudice to any other right which the Company may have, the Company shall be entitled to claim interest at the rate of 4 percent per annum above National Westminster Bank base rate from time to time (both before and after any judgment) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
14.6 All payments made by the Buyer shall be credited towards the oldest invoice due and its ancillary charges. Prepayments by cheque or Giro shall be deemed to have been made when the amount is at the Company’s disposal unconditionally, payment by bill of exchange when the bill has been cashed. Any bank charges incurred are to be paid by the Buyer. The Company reserves the right to refuse bills of exchange.
15. Reservation of Title
15.1 Notwithstanding that risk in the Goods has already passed (in accordance with Paragraph 13) the ownership of the Goods shall not pass to the Buyer until full payment for those Goods and for all other goods supplied by the Company to the Buyer has been received by the Company.
15.2 The Buyer shall hold the Goods as bailee f or the Company until title has passed to the Buyer and:-
15.2:1 Shall refrain from incumbering them in any way;
15.2:2 Shall store them separately from any other goods on the Buyer’s premises;
15.2:3 Shall clearly mark the Goods as the Company’s property;
15.2:4 Shall insure the Goods.
15.3 The Company may at any time after a default has been made by the Buyer of any payment by the due date and without prejudice to any other rights or remedies available to it, require the Buyer by written notice to place at the Company’s disposal any Goods to which title has been reserved. For the purpose of the Company taking re-possession, the Company may enter upon any premises where the Buyer has stored the Company’s Goods or the Company reasonably believes the Goods to be stored in order to repossess the Goods. The Buyer shall pay to the Company the cost of removal and transport of the Goods or any part thereof.
15.4 The Buyer will be at liberty to incorporate the Goods or part thereof into another product or chattel but if, immediately prior to such incorporation, property in the Goods has not passed to the Buyer, then subject to the rights of any third party, the product or chattel into which the Goods or part thereof is incorporated shall be and remain the absolute property of the Company unless and until full payment for the Goods and for all other Goods supplied by the Company to the Buyer has been received by the Company whereupon property in the said product or chattel shall pass from the Company to the Buyer. The rights and obligations of the Company and the Buyer in relation to the Goods under Paragraph 15 of these Conditions shall apply to the said product or chattel, mutatis mutandis.
15.5 Subject to Paragraphs 15.7 and 15.8 below, the Buyer may, notwithstanding that property in the Goods has not passed to the Buyer under Paragraph 15.1, sell the goods in the ordinary course of its business to a sub-buyer, and upon such sale property in the Goods shall pass from the Company to the sub-buyer.
15.6 The Buyer shall not attempt or purport to pledge or transfer the Goods in any way as security to any third party until property therein has passed to the Buyer in accordance with the conditions hereof.
15.7 If the Buyer has a Receiver or Administrator appointed over all or any of its assets or if a petition is presented or a resolution is passed to wind it up then and in any such event the Buyer shall be deemed to have repudiated the Contract and the Company shall be deemed to have accepted such repudiation and the Company’s permission to the Buyer to sell the Goods shall thereupon terminate automatically.
15.8 Any sale by the Buyer permitted by sub-Paragraph 15.5 shall as between the Buyer and the sub-buyer be made by the Buyer as principal and not as agent but as between the Company and the Buyer the Buyer shall be deemed to sell as the fiduciary agent of the Company and shall account to the Company for the proceeds of sale up to the amount owing to the Company for the Goods and any other Goods supplied by the Company to the Buyer, and pending such accounting, shall hold the proceeds of sale in a separate account unmingled with other monies.
16.1 The Buyer relies on his own skill and judgment as to the sufficiency capacity and performance of the Goods and as to the suitability of the Goods for any purposes for which the same are required by the Buyer.
16.2 The Buyer shall, before using the Goods or any part thereof and before parting with possession of the same, take all reasonable steps to test and examine the same to satisfy himself that the Goods are of the contractual quality and description and are suitable for the purpose for which they are intended to be used.
16.3 The Company shall have no liability for:
16.3:1 any Goods which are not manufactured by the Company and the Company’s liability shall be limited to passing on to the Buyer (if and to the extent possible) the benefit of the manufacturer’s guarantee or warranty;
16.3:2 any defect in the Goods arising from any drawings, design or specification supplied by or on behalf of the Buyer;
16.3:3 any Goods which have been stored, installed, used or maintained otherwise than:
16.3:3:1 by the Company; or
16.3:3:2 in accordance with the Company’s instructions or recommendations (or if there are none in accordance with good industry practice); or
16.3:3:3 in accordance with the recommendations of any supplier of any item with which the Goods are used.
16.3:4 any Goods which have suffered any excessive wear and tear, accident, wilful damage, neglect, abnormal working conditions or misuse;
16.3:5 any Goods which have been modified or altered in any way by the Buyer or on its instructions;
16.3:6 any claims or defects arising from the connection of the Goods to or as a result of connecting the Goods to:
16.3:6:1 any structural system not supplied by the Company; or
16.3:6:2 the substrate.
16.4 The Company shall in no circumstances have any liability for:
16.4:1 any economic loss (whether direct or indirect), including but not limited to wasted time or expenditure, loss of profits, production, business revenue or goodwill;
16.4:2 any indirect, special or consequential loss, damage, costs or expenses;
16.4:3 any claims against the Buyer by any person and the Buyer shall be solely responsible for any such losses or claims.
16.5 Any claim by the Buyer that the Goods are not in accordance with the Contract or are otherwise defective must be notified to the Company in writing:
16.5:1 in the case of any defect other than a defect within the scope of Paragraph 16.5:2 below within seven days of delivery;
16.5:2 in the case of any defect which could not reasonably have been detected by the Buyer by inspection upon delivery, within seven days of the day on which the defect comes to the Buyer’s attention; and the Company shall, subject to Paragraph 16.7 below, be under no liability whatever in respect of any such defect unless such written notice has been duly given by the Buyer.
16.6 If the Buyer establishes that the Goods are not in accordance with the Contract or are defective, the Company’s liability in respect of such non-accordance or defects shall, subject to Paragraph 16.8 below, be limited to, at the Company’s option:-
16.6:1 repairing the Goods;
16.6:2 replacing the Goods on an exchange basis; or
16.6:3 accepting the return of the Goods and allowing the Buyer credit for the price thereof; or
16.6:4 making the Buyer an allowance against the price of the Goods in their condition as delivered and the Contract price
and in any event the Company’s liability in connection with the Goods shall in no circumstances exceed the invoice price payable for them.
16.7 Subject to Paragraph 16.8 below, and without prejudice to Paragraph 16.6 above, the Company’s liability to the Buyer for any breach of contract or for any tort connected with the manufacture or supply of the Goods (whether negligent or otherwise) shall be strictly limited to the price of the Goods.
16.8 Nothing in these Conditions shall exclude or restrict the Company’s liability:
16.8:1 for death or personal injury caused by negligence on the part of the Company or its employees acting in the course of their employment;
16.8:2 fraud or fraudulent misrepresentation on the part of the Company or its employees acting in the course of their employment;
16.8:3 under Section 12 of the Sale of Goods Act 1979;
16.8:4 under any separate written Guarantee issued by the Company in respect of the Goods
16.9 The Buyer shall indemnify the Company against any third party claim of whatever nature (including a claim for negligence) made against the Company which arises directly or indirectly out of the use or condition of the Goods.
The Company shall be entitled to sub-contract all or any of its obligations under any agreement with the Buyer.
18. Force Majeure
Should the performance of the Company of any of its obligations under the Contract be prevented, hindered or delayed whether directly, indirectly or otherwise howsoever by or in consequence of an event of war, an outbreak of hostilities (whether or not involving the United Kingdom and whether war is declared or not) rebellion, riot, acts of providence, strikes, lock outs, trade disputes or other labour difficulties, breakdown, delays in transport, accident, fire, delay in delivery of raw materials or components or any other cause beyond the reasonable control of the Company, or in the event that despite all reasonable efforts having been made the Company is unable to obtain any necessary licences, consents or authorities for the exportation or importation of or payment for any Goods, or in the event of national emergency, if the Company’s works should become either directly or indirectly so engaged on Government contracts or contracts under priority directions so as to prevent, hinder or delay work on other contracts, the Company shall be entitled at any time, on notice to the Buyer, to make partial deliveries only or to determine the Contract without liability and without prejudice in any case to rights which have already accrued to the Company and the Buyer in respect of deliveries already made.
Without prejudice to any other right which the Company may have, the Company shall be entitled to exercise a general lien or right of retention of all goods in the Company’s possession, which are, or are intended to become, the Buyer’s property in regard to all debts, damages or other sums due to the Company under any contract whatsoever between the Company and the Buyer and in the event of the insolvency of the Buyer, and pursuant to such lien or right, the Company shall be entitled without notice to the Buyer to sell all or any portion of such goods and to set off against the proceeds of sale the costs of sale and all debts, damages and other monies due from the Buyer to the Company.
No time or other indulgence granted by the Company to the Buyer shall operate or be deemed to operate as a waiver or suspension of the Company’s rights under these Conditions.
21. Customs, Duties etc
Without prejudice to Paragraph 6 above, all customs or other duties or taxes whatsoever which may be levied on the Goods in any territory shall be borne by the Buyer, provided always that the Company shall be entitled (but shall be under no obligation) to pass to the Buyer the benefit of any arrangements made with Authorities for the release of the Goods under bond in which event the Buyer shall indemnify the Company in respect of its costs and expenses thereof and in regard to all other payments which may fall due including any penalties, fines or forfeiture incurred in connection therewith.
22. Trade Marks
The Buyer undertakes to respect all trade marks of the Company and in particular where there is such a trade mark or trade marks on the Goods it undertakes:
22.1:1 not to alter remove or obliterate such trade marks either partly or wholly;
22.1:2 not to apply any other trade mark to the Goods;
22.1:3 not to apply to the Goods any other matter in writing that is likely to injure the reputation of the trade mark.
Any communications or notices under the Contract between the Company and the Buyer may be made or given by sending the same by ordinary paid first class post, in the case of the Buyer to his last known address, and in the case of the Company, to its registered office and if so sent shall be deemed to have been made or given on the second working day after the date on which it was posted.
24. Law and Jurisdiction
These Conditions and all agreements between the Company and the Buyer shall be governed by English Law and subject to the exclusive jurisdiction of the English Courts.
25.1 If any provision of these Conditions is held by any court or competent authority to be invalid, illegal or unenforceable in whole or in part, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
25.2 If any invalid, illegal or unenforceable provision of these Conditions would be valid, legal and enforceable if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it valid, legal and enforceable.
26. Credit Checks
The Buyer authorises the Company to carry out credit checks (including enquiries relating to directors or the individuals) with credit reference agencies and to keep a record of that search and make available to such agencies information relating to the conduct of the Buyer’s account and the Buyer acknowledges that the agencies concerned may keep and share the information supplied to them with other businesses in assessing applications for credit and/or fraud prevention.
27. Third Parties
A person who is not a party to the Contract shall not have rights under or in connection with it.
28. Entire Agreement
28.1 The Contract constitutes the entire agreement between the Company and the Buyer and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings, whether written or oral, relating to the Goods.
28.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in the Contract.
28.3 No party shall have any claim for innocent or negligent misrepresentation based upon any statement in the Contract.
28.4 Nothing in this Paragraph 28 shall limit or exclude any liability for fraud.