1. DEFINITIONS
In these conditions “the Company” means Lagan Building Solutions Ltd.
“the Buyer” means the person, firm or company with whom the Company contracts.
“Conditions” means the terms and conditions set out in this document.
“the Contract” means the contract made between the Company and the Buyer for the sale and purchase of the Product in accordance with these Conditions.
“Product” means the goods and/or services to be supplied by the Company as referred to and described in an Order which is accepted by the Company.
“Indirect Loss” means any labour costs, scaffold hire costs, replacement of accessories or damage to property caused by a breach of these conditions and includes any other loss which is not a foreseeable loss arising from breach of these conditions.
“Order” means the Buyer’s order for the Product as set out in the Buyer’s purchase order form or in the Buyer’s acceptance of the Company’s quotation as the case may be.
2. QUOTATION
A quotation is for information only and no order placed pursuant thereto shall be binding on the Company unless and until such order is accepted in writing by the Company. All such acceptances by the Company are subject to availability of the necessary materials and to thE same remaining valid. A quotation is valid for a period of 30 days only from its date of issue provided that the Company has not previouslY withdrawn it.
3. CONDITIONS OF CONTRACT
Unless otherwise agreed in writing signed by a Director of the Company, each contract made between the Company and the Buyer for the supply of the Product shall be subject to these Conditions which shall supercede all previous conditions of sale of the Company. Any other conditions stipulated or referred to by the Buyer shall not be incorporated in the Contract. No other statement, written or oral, including without limitation any statements, descriptions or illustrations contained in any brochure or promotional literature of the Company or any manufacturer relating to the Product (other than the manufacturer’s specification of the Product) shall be incorporated into the Contract or have any legal effect whatsoever. A Contract shall come into force between the Parties each time an Order is accepted by the Company, whether by issuing an order confirmation or by delivery but not before. No employee, servant or agent of the Company has any authority to vary the Conditions orally or to make any representation on behalf of the Company as to their effect. No variation to the contract shall be binding on the Company unless the variation is in writing and signed by a director of the Company. Acceptance of delivery of the Product shall be deemed conclusive evidence of the Buyer’s acceptance of the Conditions. The Buyer shall not assign or transfer or purport to assign or transfer the Contract or the benefits thereof to any person without the prior written consent of the Company.
4. PRICE
(A) The price quoted excludes value added tax which will be charged at the rate applicable at the date of invoice.
(B) Notwithstanding this quotation, the company reserves the right to change the price ruling at the date of dispatch unless the Company agrees otherwise in writing.
(C) Any one order of £25. 00 net value or less will be charged at £25.00. The price is quoted on all “Ex works” basis. The Company reserves the right to make additional changes as it deems appropriate for packing, carriage and delivery.
(D) Offloading shall be performed at the sole expense and risk of the Buyer.
(E) The Company reserves the right by giving notice to the Buyer at any time before delivery or after final invoicing to increase the price to reflect any increase in the cost to the Company in supplying the Product which is due to any change of delivery dates, quantities or specifications for the Product which is requested by the Buyer, or any delay caused by any instructions of the Buyer or any failure of the Buyer to provide the Company with adequate information or instructions.
5. PAYMENT
(A) Monthly credit account - the price shall be payable within 30 days of the date of invoice.
(B) Non-credit accounts - payment shall be made in full at the time of the Buyers order.
(C) The Company shall be entitled at any time in its absolute discretion to request payment in full in advance of delivery of the Product. Failure by the Buyer to pay within the period specified by the Company shall entitle the Company to suspend performance of its obligations under the Contract or to terminate the Contract.
(D) The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
(E) The Company shall be entitled to interest on the price or any balance thereof not paid by the due date at the rate of 6% per annum above the base lending rate of Barclays Bank plc from the due date until actual payment.
(F) Delivery of the Product may at any time be suspended and/or cancelled by the Company pending payment of any sum due on any account whatsoever from the Buyer (including but not limited to any other contract between the Company and the Buyer)
(G) Notwithstanding any other condition the Company may at any time in its sole discretion limit or cancel the credit of the Buyer as to time and amount and as a consequence reserves the right to require payment in cash before delivery of any undelivered part of the Product.
6. LIABILITY
(A) (a) Goods not manufactured by the Company.
(i) The Buyer acknowledges that the Company is not a manufacturer but merely a wholesaler and that the Company is not therefore responsible for the process of manufacture.
(ii) The Buyer further acknowledges that in purchasing the goods the Company may have been obliged to contract on terms and conditions of sale of the Company’s Supplier and that there is every likelihood that such items and conditions contain Clauses excluding or restricting the liability of the Supplier.
(iii) Therefore, if within the guarantee period recognised by the Company or its supplier the goods prove defective due to faulty material’s workmanship or design or if the goods fail to accord with the contractual description or specification, the liability of the Company hereunder shall be limited to the repair or replacement or the refund of the price of the goods the choice to be that of the Company in its sole discretion, provided that in any event the Company’s liability shall not exceed the liability to the Company of the Company’s Supplier, the intention being that the Company shall not be liable for any sum or obligation which it has not first recovered orsecure from its supplier. The Company will not be liable for any Indirect Loss.
(iv) Nothing in the Conditions shall exclude or restrict liability for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation or affect the statutory rights of a Buyer dealing as consumer
(v) The Company shall not be liable to the Buyer in any way whatsoever for changes in specification of the Product made by the Company’s suppliers; or the discontinuance by the Company’s suppliers of any particular line of the Product.
7. RISK AND TITLE
(A) All Product shall remain the absolute property of the Company until payment has been made in full. Until such time as ownership of the Product passes from the Company to the Buyer, the Buyer shall upon request, deliver up to the Company all Product in its possession which has not been resold, or irrevocably incorporated into another product.
(B) So long as the Product remains the absolute property of the Company, the Buyer shall hold the goods as bailee only and shall keep them clearly marked as the property of the Company and separate from other goods in the Buyer’s possession. The Company shall as bailor, be at liberty to enter upon the premises of the Buyer for the purpose of repossessing the goods at any time prior to payment in full, without prejudice to any other right which the Company may have against the Buyer under the Contract. The Buyer must not destroy, deface or obscure any identifying mark or packaging on or relating to the Product and maintain the Product in satisfactory condition.
(C) The Buyer is not permitted to re-sell the Product before it has paid for the Product in full unless it is in its ordinary course of business. If the Buyer does re-sell the Product before it is paid for, the Buyer shall hold the proceeds of such re-sale on trust for the Company and such proceeds shall be kept separate from any other monies of the Buyer.
(D) So long as the Products have not been paid for in full they shall remain the absolute property of the Company if affixed to land or any other building thereon and shall not become fixtures. The Company shall have the right at any time prior to payment thereof to sever the Products from the said land or buildings for the purpose of repossessing the same.
(E) Notwithstanding the above provisions relating to title, risk in the goods shall pass to the Buyer upon delivery.
8. DELIVERY
(A) The Company will make every effort to comply with any delivery date as stated in the Contract but such date shall constitute a statement of expectation only and shall not be binding. To the extent that the Buyer is not a consumer as defined in the Consumer Rights Act 2015 if notwithstanding that the Company has made every effort (and irrespective of whether the date for dispatch is expressed to be of the essence of the Contract) the Company fails to comply with the delivery date such failure shall not constitute a breach of the contract and the Buyer shall not be entitled to treat the Contract as thereby repudiated nor to rescind it or any related contract in whole or in part nor claim compensation for any such failure or for any Indirect Loss or damage resulting therefrom.
(B) The Company shall not be liable to the Buyer for any direct or Indirect Loss or damage suffered by the Buyer in the event that the Company is prevented or hindered from supplying the Product by any circumstances beyond its control. If the Buyer requests postponement of delivery or fails to accept delivery of the Product the company shall be entitled:
(i) To invoice such Product forthwith and the Buyer shall be liable to pay the full price therefor.
(ii) To appropriate any payment made by the Buyer to such of the Product (or any Product supplied under any other contract with the Buyer) as the Company may in its sole discretion think fit
(iii) To pay all costs and expenses occasioned thereby (including a charge decided upon by the Company in its absolute discretion for storage of the goods and any additional charges for handling) and the goods shall be held at the Buyer’s risk as from time of postponement.
(iv) To suspend or cancel any further consignments of the Product.
(C) If the Contract provides for delivery by installments, delays in delivery or non-delivery of any installment shall not entitle the Buyer to treat the Contract as thereby repudiated nor to reject any other installments.
(D) Any complaint of short delivery or damage of Product in transit must be notified to the Company in writing otherwise than upon a consignment note or delivery document within 48 hours of receipt of the goods and any complaint of failure to deliver goods invoiced must be notified within 7 days of the date of the invoice.
(E) Save as expressly provided in these conditions the Company shall not be liable in any manner whatsoever for or in connection with any damage to or loss of the goods in transit.
(F) Unless otherwise agreed, delivery will take place at the Company’s premises. Where the Company agrees that delivery shall be made otherwise than by the Buyer collecting the Product from the Company’s premises then delivery shall be effected once the Product arrives at the place for delivery agreed in writing by the Company but prior to unloading. The Buyer shall be liable to the Company for any demurrage costs incurred in the event of vehicles being unduly delayed at the point of delivery
(G) Loss, shortages or damage in a delivery or any instalment delivery shall not be a ground for termination of the contract or the remainder of the contract (as the case may be)
(H) Save where otherwise agreed in writing, returns of the Product are only allowed where the goods are defective by reference to the relevant standard, as laid out in these Conditions. Where the Company provides its written consent for return of a Product, the Company may impose a handling charge which may be satisfied by a deduction of the Buyer’s credit or shall be paid to the Company by the Buyer on demand. In cases where Product not normally stocked by the Company has been ordered for the Buyer, the Company will not be in a position to accept return and shall not be obliged to do so.
9. THE PRODUCT
The Buyer acknowledges that the Product is a natural product and accordingly there may be minor variations in colour and to both the thickness and dimensions of the Product from any quoted Product size and no liability or responsibility will attach to the Company in respect thereof.
The Buyer acknowledges that the Product may in certain circumstances contain pyrites which may oxidize, and the Company shall not be liable for any change which might occur to the Product due to the presence of these minerals provided the Product remains otherwise fit for purpose.
The definition of ‘fit for purpose’ is that the Product is functional and does the job it is designed to do. In the example of roofing slates or tiles, they are fit for purpose if they are able to keep the roof watertight. Roofing Product will only be deemed defective if they do not meet the relevant standard (BSEN12326 for natural roofing slate and BSEN1304 for clay roofing tiles). In the example of cladding, the Product is deemed fit for purpose if it is structurally intact. No liability is accepted by the Company regarding failures arising from incorrect fitting instructions or from the Buyer using adhesives not recommended by the Company or by not using the recommended adhesive in the recommended way. It is understood that natural products are, by nature, imperfect and slight variations in dimensions, colour and other characteristics will occur. Where there is a dispute about whether or not the Product is defective, an independent expert (appointed by the head of the British Research Establishment (BRE)) will be appointed to inspect the Product and give an opinion as to whether the Product is fit for purpose, as defined in these Conditions.
Individual Product may not be uniform in terms of colour and the Product may change colour through exposure to natural light, weathering, general aging and wear. The Company shall therefore not be liable for and shall not accept any return of Product where the reason for return is due to variation of colour caused by exposure to natural light, weathering, general aging and wear. The Company provides no warranty in respect of specification unless a specification has been expressly agreed between the Buyer and the Company, or has been published by the Company in respect of the Product. Accordingly, the Buyer is responsible for satisfying itself that the Product will meet its requirements. Also the Buyer shall be responsible for giving the Company any necessary information and instructions relating to the Product within a sufficient time to enable the Company to perform the Contract in accordance with its terms. Samples are provided solely to enable the Buyer to judge the quality, colour, thickness, texture and other characteristics of the Product and shall not render any sale to be a sale by reference to a sample.
Information regarding weights, measurements, powers, capacities, performances and other data generally relating to the Company's products contained in advertisements, catalogues, price lists, illustrations or other similar matter submitted to the Buyer by the Company, whilst given in good faith, must be regarded only as approximate and intended to present to the Buyer a general guide, the accuracy of which the Buyer must test for himself. The Buyer shall be deemed to rely upon his own judgment as to the nature and quality of the Company's products and their suitability for this purpose and not upon any representation made by the Company its servants and agents either orally or in writing.
Product invoiced or supplied is not sold as fit for any particular purpose and any term, warranty or condition, express, implied or statutory to the contrary is excluded. In no circumstances whatsoever shall the Company's liability (in contract, tort or otherwise) to the Buyer arising under, out of or in connection with this contract or the Product supplied hereunder, exceed the replacement cost of the particular Product or section of Product concerned.
No warranties implied by law shall apply unless the Product is utilised in accordance with the Company's recommendations and is used under normal and reasonable conditions.
The Buyer acknowledges that it shall be responsible for measuring the amount of Product it requires and the Company does not guarantee that the amount of Product supplied will be sufficient for the job for which it is required. The Company shall not be held liable for any shortages, provided that the Company delivered the amount of Product ordered by the Buyer. The Buyer acknowledges that the Company is only the supplier of the Product and installation or fitting of the Product does not form part of the Contract. The Company may on request provide the Buyer with a list of fitters who have completed the Z Stone Recommended Installers Training with the Company but the Company provides such information solely on the basis that the Buyer engages any such installer at its own risk. The Buyer shall not be entitled to rely on any provision of such information by the Company in respect of the fitters and the Company will have no liability in respect of the fitters. The Buyer acknowledges that any installer should follow the relevant Code of Practice for fitting and handling of the Product as in force at the date of fitting and as amended from time to time. The Buyer acknowledges that any contract for installation of the Product will be between the Buyer and the installer only. The Company takes no responsibility for the adequacy or otherwise of the fitting of the Product and accepts no liability for any loss caused by incorrect fitting of the product by any installer, whether or not their details were provided to the Buyer by the Company and whether or not they followed the relevant Code of Practice.
10. SPECIAL GOODS
Special goods are goods which are not usually held in stock and are specially requested from a manufacturer. Where goods are made to the Buyers specification by any third party contracted by the Company for the Buyer, the Buyer undertakes full responsibility for the suitability and accuracy of the specification instructions or design which it may supply and undertakes to indemnify the Company against any infringement of the patent registered design trade mark, name copyright or like and any loss, damage or expense which it may incur by reason of such infringement in any country. Any order of special products cannot be revised downwards by the Buyer and cannot be returned.
11. LIEN
Without prejudice to any other remedies which the Company may have the Company shall in respect of all debts due and payable by the Buyer to the Company have a general lien on all goods and property belonging to the Buyer in its possession (whether worked on or not) and shall be entitled upon the expiration of 14 days’ notice to the Buyer to dispose of such goods or property as it thinks fit at any price in its absolute discretion and to apply any proceeds of sale thereof towards the payment of such debts.
12. INSOLVENCY
In the event that:
(A) The Buyer shall commit any breach of any Contract between the Buyer and the Company and shall fail to remedy such breach (if capable of remedy) within a period of 7 days from receipt of notice in writing from the Company requesting such remedy or
(B) Any distress or execution is levied upon any goods or property of the Buyer or
(C) The Buyer offers to make any arrangement with or for the benefit of its creditors or commits any act of bankruptcy or being a limited company has a Receiver appointed of the whole or any part of it undertaking property or assets or an order is made or a resolution is passed or analogous proceedings are taken for the winding up of the Buyer, (save for the purpose of reconstruction or amalgamation without insolvency and previously approved in writing by the Company.
The Company shall thereupon be entitled without prejudice to its other rights hereunder forthwith to suspend all further deliveries until the default has been made good or to determine the Contract or any unfulfilled part thereof or at the Company’s option to make partial deliveries. Notwithstanding any such termination the Buyer shall have no claim whatsoever against the Company arising out of the termination or suspension of the Contract.
13. TESTS
If the Buyer requests specific tests and inspection of the goods, such tests are to be at the Company’s premises unless otherwise agreed. If requested in writing arrangements will be made for the Buyer’s representative to observe such test and inspection in which case the Buyer will be deemed to have accepted the goods as satisfactory after the satisfactory completion of such test and inspection.
14. STATEMENTS AND REPRESENTATIONS
To the extent that the Buyer is not a consumer as defined by the Consumer Rights Act 2015 the Buyer acknowledges that in entering into the Contract with the Company, the Buyer is not relying upon any representation or statement made by the Company, its servants or agents and that these terms represent the entire terms of the Contract between the Buyer and the Company.
Any error, omission, misrepresentation or mis-statement in the Contract or in the course of negotiations leading thereto shall not entitle the Buyer to rescind the Contract nor shall the Buyer be entitled to any damages or compensation in respect thereof.
15. WAIVERS
The Company’s right and remedies shall not be prejudiced by any indulgence or forbearance to the Buyer and no waiver by the Company of any breach by the Buyer shall operate as a waiver of any subsequent breach.
16. SEVERANCE
If at any time any one or more of the provisions of these conditions becomes invalid, illegal or unenforceable in any respect under any law, the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
17. FORCE MAJEURE
The Company reserves the right to defer the Delivery Date or to cancel the Contract or reduce the volume of the Product ordered by the Buyer (without liability to the Customer) if it is prevented from or delayed in the carrying on its business due to circumstances beyond the reasonable control of the company including, without limitation, Acts of God, governmental actions or restrictions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock -outs, strikes or industrial disputes (whether involving its own employees or those of any other person), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. Provided that, if the event in question continues for a continuous period in excess of 30 days, the Company shall be entitled to give notice in writing to the Buyer to terminate the Contract.
18. DATA PROTECTION
(A) The Company may from time to time need to make searches about the Buyer at credit reference agencies. It may use credit-scoring methods to assess the Credit Account application and to verify the identity of the Buyer. Credit searches and other information which is provided to the Company and/or the credit reference agencies may also be used for identification purposes, debt tracing and the prevention of money laundering as well as the management of any credit account.
(B) Information about the Buyer and the conduct of the any credit account may be put onto the Company’s database to provide the Buyer with the service applied for, for the purpose of fraud prevention, audit and debt collection. The Company may give credit reference agencies details of any non-payment following default and where no satisfactory proposal for payment is received.
(C) By ordering the Product the Buyer acknowledges and agrees that the Company will be using and holding data for the purposes set out above.
19. NOTICES
Any notice required to be given hereunder in writing shall be deemed to have been given by either party to the other if sent by first class post, telex, e-mail or facsimile copies addressed to the other party at its principal place of business of last known address, in the case of first class post, the notice shall be deemed to have been duly received the next postal delivery day and in the case of telex or facsimile copier or e- mail the notice shall be deemed to have been received immediately at the conclusion of the transmission.
20. LAW
The Contract shall be governed and interpreted exclusively according to the Laws of Northern Ireland. The parties hereby agree to submit to the exclusive jurisdiction of the courts of Northern Ireland provided that the Company may at its option take proceedings in the courts of the state in which the Buyer is domiciled including action to obtain any remedy (including injunctive relief).