Terms and Conditions

Terms and Conditions – June 2020.
For specific information on Purchase, Delivery and Returns please refer this.

Standard Terms and Conditions of Trading (Commercial)©

  1. DEFINITIONS

1.1           ‘the Company’ means ‘The Keystone Company UK Limited’ trading as ‘Kinorigo’

1.2     ‘the Customer’ means the Customer named on the Company’s acknowledgement of order or order confirmation

1.3.    ‘The Contract’ means the contract for the sale of goods by the Company to the   Customer and any other agree works.

1.4.          ‘the Goods’ means any goods forming the subject of this Contract including parts   and components or materials incorporated in them.

1.5.    The ‘Company’s Conditions’ means these Standard Terms and Conditions of Trading (Commercial) together with any other conditions referred to in the Company’s written acknowledgement of order. If any of the conditions conflict, then specific conditions in the written acknowledgement of order take precedence over these standard conditions.

1.6.    ‘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.

 

  1. ESTIMATE/TENDER VALIDITY AND EXISTENCE OF CONTRACT

2.1.    Estimates/tenders given in writing by the Company (verbal communications do not constitute an estimate/tender nor form part of The Contract) shall unless otherwise stated be open for acceptance for 3 months from the date thereof, after which is shall lapse and no longer be capable of acceptance. The Company may at any time after the 3 months provide an estimate/tender which is either identical or different to the previous. The Company may withdraw an estimate/tender at any time prior to it being accepted. Acceptance of any estimate/tender is conditional on acceptance being effectively communicated to Kinorigo and the Company’s Conditions being accepted.

2.2.    The Company will provide a written acknowledgement of the acceptance of the estimate/tender. It is the Customer’s responsibility to notify the Company of any discrepancies in the acknowledgement, in writing within 7 days of receipt. If the Customer fails to do so, they shall be deemed to have waived their right to claim any loss or damages which are the result of the discrepancy, save for death or personal injury.

2.3.    The Company is under no obligation to procure or supply the goods or take any other steps in providing the Goods to the Customer unless the necessary deposit is paid, or satisfactory credit insurance is produced.

2.4.    The Company’s Conditions and those terms stipulated on the estimate/tender by the Company shall form the entire agreement between the parties and supersede all previous agreements whether written or oral. Common terms in JCT, NEC3 or other common construction contracts shall not be implied into the Contract purely by the nature they are common terms used in the construction industry.

2.5.    Variations or amendments to the Contract, or any terms thereof, shall not be binding or valid unless agreed and confirmed by the Company and Customer in writing, by their respective authorised representative save as may be provided in the Company’s Conditions.

2.6.    All estimates/tenders are supply only unless specifically noted otherwise.

2.7.    No order may be cancelled  without the written agreement of the Company and,  the Customer shall indemnify the Company in full against all loss, including but not limited to loss of profit, costs, (including loss of all materials used and labour) charges and expenses incurred by the Company as a result of cancellation.

 

  1. CANCELLATIONS/SUSPENSION OF MANUFACTURE AND DELIVERIES.

3.1.          The Customer will in the event of agreed cancellation indemnify the Company       fully as per condition 2.7.

3.2.          The Company may, without prejudice to its other rights in law, suspend or cancel further manufacture, deliveries or services under this or any other contract         between the parties hereto and debit the Customer with any losses incurred if: –

  1. a) The Customer fails to make payment in full of any sum owing by the date due,
  2. b) The Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or becomes bankrupt or goes into liquidation or an encumbrance takes possession, or a receiver or administrative receiver is appointed.
  3. c) The Customer ceases or threatens to cease to carry on business.
  4. d) The Customer has any distress or execution levied on its goods.
  5. e) The Company reasonably apprehends that any of the events mentions in (b) to (d) above is about to occur in relation to the Customer and notifies the Customer in writing accordingly.
  6. f) The value of goods delivered but not yet paid for exceeds or if delivered would exceed the Customer’s credit limit with the Company.

3.3.    If the Customer refuses, is unable to, or fails to take delivery of goods or services by the date specified in the Contract or by any date for delivery subsequently advised in writing by the Company a minimum of one week prior to the actual delivery date, or where no date is specified, within a reasonable period, the Company may, without prejudice to its other rights submit an invoice for payment as though the goods or services had been delivered or carried out. The invoice to include storage charges if appropriate. The Company may, having given written notice of its intention to do so, sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses, account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.

 

  1. PRICES AND FLUCTUATIONS

4.1.    All rates and prices are strictly Nett and exclude VAT, 2.5% contractor’s discount, retention and future or promulgated increases and or any other tax or levy which shall be charged in addition at the rate in force of any payment required.

4.2.    All rates and prices, unless specifically stated in writing by the Company, are exclusive of packaging, carriage, and any other additional costs such as tests, inspection, samples, insurances, bonds, warranties, duties or other impositions which will be charged to the Customer/Contract, in    addition to the price of the Goods.

4.3.    The rates and prices in the estimate/tender are dependent on and are subject to acceptance by the Customer of the entire estimate/tender.

4.4.    The Company has the right to correct any errors and/or omissions in the price and may do so free of any liability that may have or will have arisen as the result of the mistake or omission. Where the Company corrects and error or omission, the Company shall inform the Customer of the correction, and the Customer will be given 7 days from this to either accept the change or cancel the Contract. If the change is accepted the Contract shall continue as if the change were the original document, if the change is rejected, the Contract shall be automatically terminated with neither party having any further obligations or liability to the other and neither.

4.5.    The Company’s rates and prices are based on the specification, quantities and programme provided at the date of estimate/tender, as qualified by these Conditions and the estimate/tender. The Customer will be invoiced for the actual quantities, design details and programme required by the Customer. In the event of significant variation to either specification, quantities, details or programme the Company reserves the right to amend the rates accordingly, which need not necessarily be on a

pro rata basis, but may at the Company’s discretion, be in accordance with the latest issue of the Company’s Standard Price List and Catalogue of Stone Working Times.

4.6.    The Customer shall be liable in full for all loss including but not limited to: loss of profit, costs, abortive costs, charges and expenses incurred by the Company as a result of the Customer’s failure to comply with these Conditions and in particular, but not limited to, failure to provide manufacture details in good time and variations to works which have already been scheduled/manufactured.

4.7.    The Company has the right to give written notice to the Customer before the estimate/tender is accepted , to increase the price of the Goods to reflect any increase in the cost to the Company of 5% or more which is due to any factor given by clause 7.

4.8     Unless otherwise stated, the Customer has no right to make a deduction from any invoice or claim for payment as retention.

 

  1. TERMS OF PAYMENT

5.1.    Payment for goods and services is required in full prior to commencement of manufacture, except where the Company at its discretion offers the Customer a credit facility. The Company may withdraw the Customer’s credit facility at any time during the Contract if the Company is no longer able to secure sufficient credit insurance for the Customer, if the Customer fails to comply with these Conditions or if the Company has reasonable cause to believe the Customer will not make future payments due under the Contract.

5.2.    The price for goods or services shall be payable not later than 30 days after the date of the invoice. Goods will be invoiced when they are ready for dispatch and in instalments where appropriate. The Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer.

5.3.    Time for payment shall be of the essence. Without prejudice to any other rights of the Company if the Customer fails to pay the invoice price by the due date, the Customer shall not be allowed any discount given in that invoice. The Company shall also have the right to claim interest and late payment penalties in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, and in addition to the 1998 act, be entitled to all of its legal costs and expense incurred in collecting the debt regardless of the reason for any sum becoming overdue.

5.4.    Where the Customer fails to pay the invoice by the due date, all deliveries will be suspended on this and all other Contracts with the company, until the invoice and any additional costs incurred under clause 5.3 have been paid. The Company reserves the right, after such a failure, to cancel the Customer’s credit facility, at any time during the Contract. The Contract will henceforth operate on a cash account basis, whereby payment will be required based on proforma invoices prior to manufacture and/or despatch of goods, at the Company’s discretion. The Customer’s credit facility can be reinstated at any time at the Company’s discretion.

5.5.    If the Customer’s status changes, as defined in Condition 3.2(b) to (e) the price of all Goods and Services for the Contract less all cleared payments already received, including the full price of all part scheduled or part manufactured Goods and all finished Goods whether or not delivered, shall become due immediately, and payable notwithstanding any agreement to the contrary.

5.6.    Clause 5 is without prejudice to the Company’s rights to rescind the Contract either under another term of the Contract or at common law.

 

  1. DELIVERY

6.1     The Company shall deliver the Goods to the address given by the Customer in their acceptance of the estimate/quote.

6.2     Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods however caused. Time shall not be of the essence for delivery. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.

6.3     Deliveries are, unless stated otherwise, based on full consignments, with vehicles provided with unrestricted access and a suitable hardstanding, should these conditions not be met, through no fault of the Company, additional charges may apply.

6.4     The Company reserves the right to make deliveries by instalments.

6.5     Any offloading period in excess of 2 hours, will at the Company’s discretion, be subject to an additional charge.

6.6     The Goods shall be unloaded by the Customer and at their expense unless otherwise agreed with the Company in writing. Risk in the Goods shall pass upon commencement of unloading, except where the Contract is F.O.B. where risk passes once loading commences.

6.7     Where the Goods are to be delivered in instalments, each delivery shall constitute a severable part of the Contract and failure by the Company to deliver any one or more of the instalments in accordance with these conditions  shall not entitle the Customer to  repudiate the Contract as a whole.

6.8     If the Company fails to deliver the Goods (or any instalment) for any reason other than a cause given by Clause 7  or the Customer is at fault, the Company’s liability shall be limited to the excess (if any) of the cost (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

6.9     If the customer fails to take delivery of the Goods or fails to give adequate delivery instructions (otherwise than  by a cause given by clause 7  or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to us, the Company may:-

  1. Store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) or storage; or
  2. b) Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.

 

  1. PERFORMANCE AND LIABILITY

7.1     The Company will manufacture Goods in accordance with the Company’s programme. The Company’s programme takes precedence over all other programmes. The Company will advise the Customer in writing of the programme and any amendments thereto.

7.2     It is the Customer’s duty to allow a tolerance of 5-10% for cutting and waste in any order the Customer places.

7.3     It is the Customer’s duty to place orders in good time in order that production slots can be allocated to achieve the programme. It is the Customer’s duty to provide all necessary stone schedules, quantities, templates and relevant information a minimum of 2 weeks prior to manufacture, to facilitate the Company’s pre-manufacture scheduling and preparations and to provide all the aforementioned information in a

sequence to facilitate economic production and in particular production of all like stones together. Failure by the Customer to meet the requirements

of this Condition may result in deferment of the programme and re-pricing of the Contract in accordance with Conditions 4.5 and 4.6.

7.4     Where the Company is prevented from delivering the Goods or preforming the Contract as the result of a force majeure, which includes but is not limited to: war or hostilities, government legislation, government intervention, strike lockout or labour disturbance, civil commotion, domestic or international epidemic and/or pandemic, fire, accident, shortage of materials (those of the Company or its supplier), geology of the stone, power failure, breakdown of machinery, police or local authority restrictions, delays in issue approval or clearance of working drawings, stone schedules, templates or other relevant information, lack of instruction from the Customer or suspension of the Customer’s credit facility, or any other cause outside the Companies control; the Company shall not be liable for any loss, consequential loss, penalty, liquidated damages, general damages, or any other expense which arises from non-deliver or performance.

7.5     Where the Customer requests the whole or part of the Goods are to obtained from a specific source (including but not limited to, specific countries, suppliers, or quarries), and the Goods are unavailable from that specific source either prior to or after the Company has attempted to obtain it, the Company shall not be liable for any loss or damage which is the result of either not procuring the Goods from the specific source or late delivery of the Goods. None of the above will entitle the Customer to cancel the Contract with the Company.

7.6     Any claim that the Goods have been delivered damaged, collected by the Customer in a damaged condition, are  incorrect quantity, or otherwise do not comply with their description, shall be notified by the Customer to the Company within 7 days of delivery or collection and be in writing, otherwise the Goods are deemed acceptable.

7.7     Where a defect would not reasonably apparent at the time of inspection and becomes apparent later, the Customer shall have 7 days to notify the Company in writing of the defect, the 7 days beginning on the day the defect comes to the Customer’s attention, otherwise the Customer is deemed to accepted the defect and waived all rights in relation to thereof. The Customer installing the Goods is deemed acceptance of the quality of the Goods.

7.8     The Company shall not be liable for any defect which arises from any design or specification supplied or made by the Customer, or if adjustments or alteration works have been carried out to the Goods by a third party without the Company’s consent.

7.9     Any claim under Clause 7 must be accompanied by photographs, fully quantified and contain reference numbers and other details to support the claim including details of any alleged defects.

7.10   The Company shall be afforded reasonable opportunity and facilities to investigate any claim made under this condition.

7.11   Where the Company agrees the Goods are defective, the Company shall be permitted reasonable time to rectify any defect or supply replacement goods, whichever the Company deems appropriate, at the Company’s expense.

7.12   If the Company agrees that recompense is due to the Customer for defects in accordance with Clause 7, a credit note will be issued against the relevant invoice. The Customer shall not set off against payments due on this or any other order/contract with the Company. The Company’s liability shall not exceed the invoiced price of the particular defective Goods.

7.13   Where the Company is liable under Clause 7 in respect of just part of the Goods, then the Contract shall remain in full force and effect in respect of the other part or parts of the Goods and no set off or other claim shall be made by the Customer against or in respect of such other part or parts of the Goods.

7.14   All other liabilities including, but not limited to, consequential loss, carriage or loss of profit are expressly excluded from any claim against the Company.

7.15   The Company shall not be liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, misuse, alteration or repair of the Goods without the Company’s approval in writing.

7.16   The Company shall have no liability where the Customer has not made a claim in accordance with Clause 7.

7.17   No term of this Contract or the Company’s Conditions shall be considered as restricting the Company’s liability for personal injury or death.

 

  1. RISK AND RETENTION OF TITLE

8.1     Risk in goods shall pass to the Customer when the Goods are delivered or collected by the Customer or its agent, except where the contract is F.O.B.

8.2     Title and Property in the Goods shall remain with the Company and not pass the too Customer until the Goods are paid for in full.

8.3     The Customer shall hold the Goods as bailee for the Company, and shall insure the Goods against all reasonably insurable perils, and shall store and clearly mark the Goods so that they can at all times be identified as property of the Company.

8.4     If the Customer fails to comply with the payment conditions, the Company shall be entitled at any time,  to require the Customer to deliver up the Goods to the Company, and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.

8.5     The Customer shall not be entitled to  charge or otherwise encumber the Goods by way of security for and indebtedness any of the Goods (which remain the Company’s property), but if the Customer does so all monies owing by the Customer to the Company shall (without prejudice to any of the Company’s other rights and remedies)  become due and payable immediately.

 

  1. SPECIFICATION

9.1     The Company’s ability to provide specified sizes will be subject to availability of suitable material at the date of manufacture or supply.

9.2     Tolerances for unrectified porcelain are approximately +/- 6%.

9.3     All goods are supplied on the clear understanding that natural stone materials and finished masonry products will be subject to natural formation characteristics, variation in colour, markings, texture, grain, bed and moisture content. 5%-10% is expected to be used for cutting and waste.

9.4     The Company reserves the right to supply a similar alternative where, for reasons outside its control, it is unable to supply the stone originally specified.

9.5     Any samples supplied are indicative of the type of the material. The Company cannot guarantee nor represents that the final product will be identical to any sample supplied and that variations in colour, marking etc over larger areas of stonework are unavoidable unless the Customer first inspected the quarry.  All characteristics as shown by the range panels at source shall be considered typical of the stone and not as flaws and they shall not be a reason for rejection.

9.6     All site dimensions, sizes, cutting lists, moulds templates required for the execution of the works, unless otherwise agreed and confirmed in writing by the Company, are to be provided by the Customer.

9.7     Unless specifically provided for in the estimate/tender, no drawing or design work has been, or will be provided by the Company.

 

9.8     Any specifications, literature or particulars supplied by the Company are submitted in confidence for use and information of the Customer only. Any copyright and other intellectual property rights therein shall remain the property of the Company.

9.9     The Company shall have no responsibility for the design of the Goods unless specifically agreed in writing; the Company shall not be responsible for the suitability or fitness of purpose of the Goods supplied.

9.10    If the Goods are to be manufactured or any process is to be applied by the Company in accordance with a drawing design or specification submitted by the Customer, the

Customer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in settlement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Customer’s drawing, design or specification.

9.11    The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory, E.U. requirements or, where the Goods are to be supplied to the Company’s specification which do not affect their quality or performance.

9.12    The Customer warrants that the intellectual property in any drawing, design or specification provided to the Company vests in the Customer and agrees to indemnify the Company for any claims brought by a third party against the Company relating to the infringement of intellectual property rights in the drawing, design or specification.

9.13    Where the Company undertakes any design, the Company retains is the ownership of all intellectual property rights existing in any drawing, design or specification created by the Company once completed.

 

  1. SUB-CONTRACTING

10.1.   The Company reserves the right to sub-let the whole or any part of the Contract.

 

  1. LAW AND CONSTRUCTION

11.1    The Contract shall be governed by the law of England and Wales and the English Welsh Courts shall have exclusive jurisdiction to decide all matters under this contract.

11.2    The headings and conditions are for convenience of reference only and shall not affect their interpretation.

11.3    No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other condition.

11.4    If any provision of the Company’s Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, it shall be severed without affecting the remaining terms of the Company’s Conditions.

11.6    Any notice required or permitted under the Contract shall be in writing addressed to other party’s registered office unless otherwise notified previously that another address is to be used.

11.7    Where the Company undertakes installation or design works in relation to the Goods, both parties have the right to refer any dispute under the contract to adjudication in accordance with the Scheme for Construction Contracts (England and Wales) Regulations 1998.

 

  1. INTERNATIONAL AGREEMENTS

12.1    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 the Company’s Conditions, but if there is any conflict between the provisions of Incoterms and these terms, the latter shall prevail.

12.2    Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 12 shall (subject to any special terms agree in writing between the Customer and the Company) apply notwithstanding any other provision of these Terms.

12.3    The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.

12.4    Unless otherwise agreed in writing between the Customer and the Company, the Goods shall be delivered f.o.b. the air or seaport shipment and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

12.5    The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company’s premises before shipment. The Company 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.

12.6    Unless otherwise required by the Company, payment of all amounts due to the Company shall be made by irrevocable letter of credit, in a form acceptable to the Company, to be opened by the Customer in favour of the Company and confirmed by a bank in the United Kingdom acceptable to the Company within 14 days after the Contract is concluded.

 

  1. INSOLVENCY IF CUSTOMER

13.1    The clause applies if: –

  1. a) The Customer 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 purpose of amalgamation or reconstruction); or
  2. b) An incumbrancer takes possession, or a receiver is appointed, or any of the property or assets of the Customer; or
  3. c) The Customer ceases, or threatens to cease, to carry on business; or
  4. d) The Company reasonably apprehends that any of the events mentioned above are about to occur in relation to the Customer and notifies the Customer accordingly.

13.2    If this clause applies, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, 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.

 

Standard Terms and Conditions of Trading (Consumer)

  1. DEFINITIONS

1.1     ‘the Company’ means ‘The Keystone Company UK Limited’ trading as ‘Kinorigo’

1.2     ‘the Customer’ means the Customer named on the Company’s acknowledgement of order or order confirmation

1.3.    ‘the Contract’ means the contract for the sale of goods by the Company to the   Customer.

1.4.    ‘the Goods’ means any goods forming the subject of this Contract including parts and components or materials incorporated in them.

1.5.    the ‘Company’s Conditions’ means these Standard Terms and Conditions of Trading (Consumer) together with any other conditions referred to in the Company’s quote. If any of the conditions conflict, then specific conditions in the written acknowledgement of order take precedence over these Standard Terms and Conditions of Trading (Consumer).

1.6.    ‘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.

  1. ESTIMATE/TENDER VALIDITY AND EXISTENCE OF CONTRACT

2.1.    Estimates/tenders given in writing by the Company (verbal communications do not constitute an estimate/tender nor form part of the contract) shall unless otherwise stated be open for acceptance for 3 months from the date thereof, after which it shall lapse and no longer be capable of acceptance. The Company may at any time after the 3 months provide an estimate/tender which is either identical or different to the previous. The Company may withdraw the estimate/tender at any time prior to it being accepted. Acceptance of any estimate or tender is dependant effectively communicated to Kinorigo and the Company’s Conditions being accepted.

2.2.    The Company will provide an acknowledgement of acceptance of the estimate/tender.  It is the Customer’s responsibility to notify the Company of any discrepancies in the acknowledgement, in writing within 7 days of receipt.

2.3.    The Company is under no obligation to procure or supply the Goods or take any other steps in providing the Goods to the Customer unless the necessary deposit is paid, or satisfactory credit insurance is produced.

2.4.    These Terms and Conditions of Trading (Commercial) and those terms stipulated on the estimate/tender by The Company shall form the entire agreement between the parties and supersede all previous agreements whether written or oral. Common terms in JCT, NEC3 or other common construction contracts shall not be implied into The Contract purely by the nature they are common terms used in the construction industry.

2.5.    Variations or amendments to the contract, or any terms thereof, shall not be binding or valid unless agreed and confirmed by the Company and the Customer in writing, by their respective authorised representative save as may be provided in the Company’s Conditions.

2.6.    All estimates/tenders are supply only unless specifically noted otherwise

2.7.    No order that has been acknowledged in writing by The Company may be cancelled by the Customer except with the written agreement of the Company and on the terms that the Customer shall indemnify the Company in full against all loss, including but not limited to loss of profit, costs, (including loss of all materials used and labour) charges and expenses incurred by the Company as a result of cancellation.

2.8     Nothing in clause 2.7 shall prejudice the Customers right to cancel the contract under clause 3.

  1. CANCELLATIONS/SUSPENSION OF MANUFACTURE AND DELIVERIES.

3.1.    The Customer will in the event of agreed cancellation indemnify the Company fully as per condition 2.7.

3.2.    The Company may, without prejudice to its other rights in law, suspend or cancel further manufacture, deliveries or services under this or any other contract between the parties hereto and debit the Customer with any losses incurred if: –

  1. a) The Customer fails to make payment in full of any sum owing by the date due.
  2. b) The Customer makes any voluntary arrangement with their creditors or becomes subject to an administration order or becomes bankrupt or goes into liquidation or an encumbrance takes possession, or a receiver or administrative receiver is appointed.
  3. c) The Customer ceases or threatens to cease to carry on their business.
  4. d) The Customer has any distress or execution levied on their property.
  5. e) The Company reasonably apprehends that any of the events mentions in (b) to (d) above is about to occur in relation to the Customer and notifies the Customer in writing accordingly.
  6. f) The value of goods delivered but not yet paid for exceeds or if delivered would exceed the Customer’s credit limit with the Company.

3.3.    If the Customer refuses, is unable to, or fails to take delivery of goods or services by the date specified in the Contract or by any date for delivery subsequently advised in writing by the Company a minimum of one week prior to the actual delivery date, or where no date is specified, within a reasonable period, the Company may, without prejudice to its other rights submit an invoice for payment as though the goods or services had been delivered or carried out. The invoice to include storage charges if appropriate. The Company may having given written notice of its intention to do so, sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses, account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.

3.4.    The Customer shall have the following rights:

  1. The Customer has the right to cancel the Contract at any time up to the end of fourteen working days after it receives the Goods. A working day is any day other than weekends and bank or other public holidays.
  2. To exercise its right of cancellation, the Customer must give written notice to the Company by hand or post, fax or email, at the address, fax number or email address shown below, giving details of the Goods ordered and (where appropriate) their delivery. This may be done of the using the Company’s Cancellation Form.
  3. If the Customer exercises its right of cancellation after the goods have been delivered to them the Company may deduct or charge a sum equal to the cost of delivering the goods to the Customer in the first instance. The Customer must return the Goods to the Company at their cost (to be advised), take reasonable care to ensure the Goods are not damaged in the meantime or in transit.
  4. Once the Customer has notified the Company that it is cancelling the Contract, the Company will refund or re-credit the Customer within 14 days for any sum that has been paid by it or debited from its credit card for the Goods.
  5. The Customer does not have the right to cancel the Contract for Goods which have been made to the Customer’s specification, the Goods are clearly personalised or the Goods by their nature cannot be returned or are liable to deteriorate or expire rapidly. The Company will notify Customer at the time the order is accepted if this applies.
  6. PRICES AND FLUCTUATIONS

4.1.          All rates and prices are strictly Nett and exclude VAT, 2.5% contractor’s discount, retention and future or promulgated increases and or any other tax or levy which    shall be charged in addition at the rate in force of any payment required.

 

4.2.    All rates and prices, unless specifically stated in writing by the Company, are exclusive of packaging, carriage, and any other additional costs such as tests, inspection, samples, insurances, bonds, warranties, duties or other impositions which will be charged to the Customer/Contract, in addition to the price of the Goods.

4.3.    The rates and prices in the estimate/tender are dependent on and are subject to acceptance by the Customer of the entire estimate/tender.

4.4.    The Company has the right to correct any errors and/or omissions in the price and may do so free of any liability that may have or will have arisen as the result of the mistake or omission. Where the Company corrects and error or omission, The Company shall inform The Customer of the correction, and the Customer will be given 14 days from this to either accept the change or cancel The Contract. If the change is accepted The Contract shall continue as if the change were the original document, if the change is rejected, the contract shall be automatically terminated with neither party having any further obligations or liability to the other.

4.5.    The Company’s rates and prices are based on the specification, quantities and programme provided at the date of estimate/tender, as qualified by these Conditions and the estimate/tender. The Customer will be invoiced for the actual quantities, design details and programme required by the Customer.          In the event of significant variation to either specification, quantities, details or programme the Company reserves the right to amend the rates accordingly, which need not necessarily be on a pro rata basis, but may at the Company’s discretion, be in accordance with the latest issue of the Company’s Standard Price List and Catalogue of Stone Working Times.

4.6.    The Customer shall be liable in full for all loss (including but not limited to loss of profit), costs, abortive costs, charges and expenses incurred by the Company as a result of the Customer’s failure to comply with these Conditions and in particular, but not limited to, failure to provide manufacture details in good time and variations to works which have already been scheduled/manufactured.

4.7.    The Company has  the right to  give written notice to the Customer before the estimate/tender is accepted , to increase the price of the Goods to reflect any increase in the cost to the Company of 5% or more which is due to any factor given by clause 7.

4.8     Unless otherwise stated, the Customer has no right to make a deduction from any invoice or claim for payment as retention.

  1. TERMS OF PAYMENT

5.1.    Payment for goods and services is required in full prior to commencement of              manufacture, except where the Company at its discretion offers the Customer               a credit facility. The Company may withdraw the Customer’s credit facility at         any time during the contract if the Company is no longer able to secure     sufficient credit insurance for the Customer, if the Customer fails to comply   with these Conditions or if the Company has reasonable cause to believe the         Customer will not make future payments due under the contract.

5.2.    The price for goods or services shall be payable not later than 30 days after                the date of the invoice. Goods will be invoiced when they are ready for    dispatch and in instalments where appropriate. The Seller shall be entitled to        recover the price, notwithstanding that delivery may not have taken place and              the property in the Goods has not passed to the Buyer.

5.3.    Time for payment shall be of the essence. Without prejudice to any other rights of the Company if the Customer fails to pay the invoice price by the due date, the Customer shall not be allowed any discount given in that invoice. The Company shall also have the rights afforded by the Late Payment of Commercial Debts (Interest) Act 1998 as if it had been dealing with a commercial customer, and in addition to the act, be entitled to all of its legal costs and expense incurred in collecting the debt regardless of the reason for the debt becoming overdue.

5.4.    Where the Customer fails to pay the invoice by the due date, all deliveries will be suspended on this and all other Contracts with the company, until the invoice and any additional costs incurred under clause 5.3 have been paid. The Company reserves the right, after such a failure, to cancel the Customer’s credit facility, at any time during the contract. The contract will henceforth operate on a cash account basis, whereby payment will be required based on proforma invoices prior to manufacture and/or despatch of goods, at the Company’s discretion. The Customer’s credit facility can be reinstated at any time at the Company’s discretion.

5.5.    If the Customer’s status changes, as defined in Condition 3.2(b) to (e) the price of all Goods and Services for the contract less all cleared payments already received, including the full price of all part scheduled or part manufactured Goods and all finished Goods whether or not delivered, shall become due immediately, and payable notwithstanding any agreement to the contrary.

5.6.    Clause 5 is without prejudice to the Company’s rights to rescind the contract either under another term of the contract or at common law.

  1. DELIVERY

6.1     The Company shall deliver the Goods to the address given by the Customer in their acceptance of the estimate/quote.

6.2     Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods however caused. Time shall not be of the essence for delivery. For delivery shall not be of the essence. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer

6.3     Deliveries are, unless stated otherwise, based on full consignments, with vehicles provided with unrestricted access and a suitable hardstanding, should these conditions not be met, through no fault of the Company, additional charges may apply.

6.4     The Company and Customer may agree in writing for delivery to be by instalments.

6.5     Any offloading period in excess of 2 hours, will at the Company’s discretion, be subject to an additional charge.

6.6     The Goods shall be unloaded by the Customer and at their expense unless otherwise agreed with the Company in writing. Risk in the Goods shall pass upon commencement of unloading.

6.7     Where the Goods are to be delivered in instalments, each delivery shall constitute a severable part of the Contract and failure by the Company to deliver any one or more of the instalments in accordance with these conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the contract as a whole as repudiated.

6.8     If the Company fails to deliver the Goods (or any instalment)    for any reason other than a cause given by Clause 7  or the Customer’s fault, and the Company is accordingly liable to the Customer, the Company’s liability shall be limited to the excess (if any) of the cost (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

 

6.9     If the customer fails to take delivery of the Goods or fails to give adequate delivery instructions (otherwise than  by a cause given by clause 7 or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to us, the Company may:-

  1. Store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) or storage; or
  2. b) Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the contract or charge the Customer for any shortfall below the price under the contract.
  3. PERFORMANCE AND LIABILITY

7.1     The Company will manufacture Goods in accordance with the Company’s programme. The Company’s programme takes precedence over all other programmes. The Company will advise the Customer in writing of the programme and any amendments thereto.

7.2     It is the Customer’s duty to allow a tolerance of 5-10% for cutting and waste in any order the Customer places.

7.3     It is the Customer’s duty to place orders in good time in order that production slots can be allocated to achieve the programme. It is the Customer’s duty to provide all necessary stone schedules, quantities, templates and relevant information a minimum of 2 weeks prior to manufacture, to facilitate the Company’s pre-manufacture scheduling and preparations and to provide all the aforementioned information in a sequence to facilitate economic production and in particular production of all like stones together. Failure by the Customer to meet the requirements of this Condition may result in deferment of the programme and re-pricing of the contract in accordance with Conditions 4.5 and 4.6.

7.4     Where the Company is prevented from delivering the Goods or preforming the Contract as the result of a force majeure, which includes but is not limited to: war or hostilities, government legislation, government intervention, strike lockout or labour disturbance, civil commotion, domestic or international epidemic and/or pandemic, fire, accident, shortage of materials (those of the Company or its supplier), geology of the stone, power failure, breakdown of machinery, police or local authority restrictions, delays in issue approval or clearance of working drawings, stone schedules, templates or other relevant information, lack of instruction from the customer or suspension of the Customers credit facility, or any other cause outside the Companies control; the Company shall not be liable for any loss, consequential loss, penalty, liquidated damages, general damages, or any other expense which arises from non-deliver or performance.

7.5     Where the Customer requests the whole or part of the Goods are to obtained from a specific source (including but not limited to, specific countries, suppliers,

to or after the Company has attempted to obtain it, the Company shall not be liable for any loss or damage which is the result of either not procuring the Goods from the specific source or late delivery of the Goods. None of the above will entitle the Customer to cancel the Contract with the Company.

7.6     Any claim that the Goods have been delivered damaged, collected by the Customer in a damaged condition, are  incorrect quantity or otherwise do not comply with their description, shall be notified by the Customer to the Company within 21 days of delivery or collection, and be in writing, otherwise the goods will be deemed acceptable.

7.7     Where a defect would not reasonably apparent at the time of inspection and becomes apparent later, the Customer shall have 7 days to notify the Company in writing of the defect, the 7 days beginning on the day the defect comes to the Customers attention, otherwise the Customer is deemed to accepted the defect and waived all rights in relation to thereof.

7.8     The Company shall not be liable for any defect which arises from any design or specification supplied or made by the Customer, or if adjustments or alteration works have been carried out to the Goods by a third party without the Company’s consent.

7.9     Any claim under Clause 7 must be in writing, accompanied by photographs, fully quantified and contain reference numbers and other details to support the claim including details of any alleged defects.

7.10   The Company shall be afforded reasonable opportunity and facilities to investigate any claim made under this condition.

7.11   Where the Company agrees the Goods are defective, the Company shall be permitted a reasonable time to rectify any defect or supply replacement goods, whichever the Company deems appropriate, at the Company’s expense.

7.12   If the Company agrees that recompense is due to the Customer for defects in accordance with this Clause 7, a credit note will be issued against the relevant invoice. The Customer shall not set off against payments due on this or any other order/contract with the Company.

7.13   Where the Company is liable under clause 7 in respect of just part of the Goods, then the contract shall remain in full force and effect in respect of the other part or parts of the goods and no set off or other claim shall be made by the Customer against or in respect of such other part or parts of the goods.

7.14   The Company shall not be liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, misuse, alteration or repair of the Goods without the Company’s approval in writing.

7.15   No term of the Company’s Conditions shall be considered as restricting any liability which the Company is not able to restrict against a consumer as a matter of law, and the Customer is reminded Goods must match the Contract descriptio.

  1. RISK AND RETENTION OF TITLE

8.1     Risk in goods shall pass to the Customer when the goods are in their physical possession or, delivered to the Customers carrier, or collected by the Customer or its agent.

8.2     Title and Property in the Goods shall remain with the Company and not pass the too Customer until the Goods are paid for in full.

8.3     The Customer shall hold the Goods as bailee for the Company, and shall insure the Goods against all reasonably insurable perils and shall          store and clearly mark the Goods so they can at all times be identified as property of the Company.

8.4     If the Customer fails to comply with the payment conditions, the Company shall be entitled at any time, to require the Customer to deliver up the Goods to the Company, and if the Customer fails to do so, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.

8.5     The Customer shall not be entitled to  way charge or otherwise encumber the Goods by way of security for and indebtedness any of the Goods which remain the Company’s property, but if the Customer does so all monies owing by the Customer to the Company shall (without prejudice to any of the Company’s other rights and remedies)  become due and payable immediately.

  1. SPECIFICATION

9.1     The Company’s ability to provide specified sizes will be subject to availability of suitable material at the date of manufacture or supply.

9.2     Tolerances for unrectified porcelain are approximately +/- 6%.

9.3     All goods are supplied on the clear understanding that natural stone materials and finished masonry products will be subject to natural formation characteristics, variation in colour, markings, texture, grain, bed and moisture content. 5%-10% is expected to be used for cutting and waste.

9.4     The Company reserves the right to supply a similar alternative where, for reasons outside its control, it is unable to supply the stone originally specified.

9.5     Any samples supplied are indicative of the type of the material. The Company cannot guarantee nor represents that the final product will be identical to any sample supplied (save for material it is made off)  and that  variations in colour, marking etc over larger areas of stonework are unavoidable unless the Customer first inspected the quarry. All characteristics as shown by the range panels at source shall be considered typical of the stone and not as flaws and they shall not be a reason for rejection.

9.6     All site dimensions, sizes, cutting lists, moulds templates required for the execution of the works, unless otherwise agreed and confirmed in writing by the Company, are to be provided by the Customer.

9.7     Unless specifically provided for in the estimate/tender, no drawing or design work has been, or will be provided by the Company.

9.8     Any specifications, literature or particulars supplied by the Company are submitted in confidence for use and information of the Customer only. Any copyright and other intellectual property rights therein shall remain the property of the Company.

9.9     The Company shall have no responsibility for the design of the Goods unless specifically agreed in writing; the Company shall not be responsible for the suitability or fitness of purpose of the Goods supplied.

9.10    If the Goods are to be manufactured or any process is to be applied  by the Company in accordance with a drawing design or specification submitted by the Customer, the Customer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in settlement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Customer’s drawing, design or specification.

9.11    The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory E.U. requirements or, where the Goods are to be supplied to the Company’s specification which do not affect their quality or performance.

9.12    The Customer warrants that the intellectual property in any drawing, design or specification provided to the Company vests in the Customer and agrees to indemnify the Company for any claims brought by a third party against the Company relating to the infringement of intellectual property rights in the drawing, design or specification.

9.13    Where the Company undertakes any design, the Company retains its the ownership of all intellectual              property rights existing in any drawing, design or specification created by the   Company once completed.

  1. SUB-CONTRACTING

10.1.   The Company reserves the right to sub-let the whole or any part of the Contract.

  1. LAW AND CONSTRUCTION

11.1    The Contract shall be governed by the law of England and Wales and the English and Welsh Courts shall have exclusive jurisdiction to decide all matters under this contract.

11.2    The headings and conditions are for convenience of reference only and shall not affect their interpretation.

11.3    No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other condition.

11.4    If any provision of the Company’s Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, it shall be severed without affecting the remaining terms of the Company’s Conditions.

11.6    Any notice required or permitted under the Contract shall be in writing addressed to the Company’s registered address or the Customer’s home address unless otherwise notified previously that another address is to be used.

  1. INTERNATIONAL AGREEMENTS

12.1    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 Terms, but if there is any conflict between the provisions of Incoterms and these Terms, the latter shall prevail.

12.2    Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 12 shall (subject to any special terms agree in writing between the Customer and the Company) apply notwithstanding any other provision of these Terms.

12.3    The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.

12.4    Unless otherwise agreed in writing between, the Goods shall be delivered fob the air or seaport shipment and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

12.5    The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company’s premises before shipment. The Company 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.

12.6    Unless otherwise required by the Company, payment of all amounts due to the Company shall be made by irrevocable letter of credit, in a form acceptable to the Company, to be opened by the Customer in favour of the Company and confirmed by a bank in the United Kingdom acceptable to the Company within 14 days after the Contract is concluded.

  1. INSOLVENCY OF CUSTOMER

13.1    The clause applies if: –

  1. a) The Customer makes any voluntary arrangement with its creditors or becomes subject to a Bankruptcy order or (being an individual or firm) becomes bankrupt.; or
  2. b) An incumbrancer takes possession, or a receiver is appointed, or any of the property or assets of the Customer; or
  3. c) The Customer ceases, or threatens to cease, to carry on business; or
  4. d) The Company reasonably apprehends that any of the events mentioned above are about to occur in relation to the Customer and notifies the Customer accordingly.

13.2    If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, 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.