Terms & Conditions

KINGSPAN TERMS & CONDITIONS OF SALE

 

This Contract is between the Buyer (as specified in the Kingspan Order Confirmation or Kingspan Online Order Confirmation, as applicable) and Kingspan (as defined in these Conditions).

 

1. Interpretation

1.1 In these Conditions (including the Kingspan Order Confirmation or Kingspan Online Order Confirmation, as applicable), unless the context otherwise requires, the following words have the following meanings:

Kingspan

:

Kingspan Water & Energy Limited, 180, Gilford Road, Portadown, Northern Ireland BT63 5LE (Incorporated in Northern Ireland with registration number NI17631).

Buyer

:

The person as specified in the Kingspan Order Confirmation or Kingspan Online Order Confirmation (as applicable) who agrees to purchase the Goods from Kingspan and to whom Kingspan agree to sell the Goods. 

Conditions”

:

The terms and conditions of sale of Kingspan set out in this document and includes any special terms and conditions agreed in Writing between the Buyer and Kingspan in accordance with the procedure set out in these Conditions.

Consumer

 

A natural person who is acting for purposes unrelated to the person’s trade, business or profession.

Contract”

:

The contract for the purchase and sale of the Goods by the Buyer from Kingspan formed as specified in these Conditions.

“Delivery address”

:

The address where the Goods are to be delivered by Kingspan (if Kingspan are to deliver) more specifically as detailed in the Kingspan Order Confirmation or the Kingspan Online Order Confirmation (as applicable), and if none is specified then the Buyer shall collect the Goods from Kingspan at a location nominated by Kingspan.

“Delivery Constraint”

:

Any and all limitations preventing free access of standard-length articulated vehicles from the point of manufacture or storage of the Goods by Kingspan to the unloading location on the Delivery address more specifically as set out by the Buyer in the Kingspan Order Confirmation or the Kingspan Online Order Confirmation (as applicable).

“Delivery Price”

:

The cost of carriage of the Goods from the place of manufacture or storage by Kingspan to the Delivery address if Kingspan are to deliver the Goods to the Delivery address.

“Direct Order”

:

An order for Goods placed by the Buyer with Kingspan, not being an Online Order.

“Estimated Delivery Date(s)”

:

The date or dates as specified in the Kingspan Order Confirmation or Kingspan Online Order Confirmation (as applicable) when Kingspan shall endeavour to deliver the Goods to the Delivery address.

“Force Majeure”

:

Any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including but not limited to strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of supplies or subcontractors.

Goods”

:

Manufactured environmental, renewable energy and fuel storage solutions, which Kingspan is to supply to the Buyer in accordance with these Conditions, and as more specifically set out in the Kingspan Order Confirmation or Kingspan Online Order Confirmation (as applicable).

“Goods Price”

:

The price for the Goods “ex works” at the location that Kingspan shall manufacture or store the Goods.

“Kingspan Online Order Confirmation”

:

In the case of an Online Order, the email issued by Kingspan (to the email address provided by the Buyer when placing an Online Order) with details of the Goods ordered and which confirms that the Online Order has been accepted and the parties have entered into Contract.

“Kingspan Order Confirmation”

:

In the case of a Direct Order, the document issued by Kingspan with details of the Goods ordered and the Buyer details. Kingspan will only issue a Kingspan Order Confirmation upon receipt of a purchase order number from the Buyer.

“Online Order”

 

An order for Goods placed by the Buyer through Kingspan’s Website.

“Total Price”

:

The sum of the Goods Price inclusive of VAT or other applicable taxes and levies and the Delivery Price (if any).

Writing

:

Includes letter, telex, cable, facsimile transmission and communication by email but only when in accordance with these Conditions.

“Website”

:

The website through which Goods can be ordered from Kingspan in the United Kingdom, being: www.tanks-direct.co.uk

 

 

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for reference only and shall not affect their interpretation.

2. Basis of the Sale

2.1 Kingspan shall sell and the Buyer shall purchase the Goods for the Total Price in accordance with these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.

2.2 No purported variation to these Conditions or any subsequent variation shall be binding on Kingspan unless agreed in Writing (which in this case shall not include email) by a Main Board Director of Kingspan or an agent of Kingspan and agreed in Writing by the authorised representative of the Buyer.

2.3 Kingspan’s employees or agents are not authorised to make any representations or warranties concerning the Goods unless confirmed by Kingspan in Writing.  In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.

2.4 Any typographical, clerical or other error or omission in any sale literature, quotation, price list, acceptance of offer, invoice, email acknowledgement, email confirmation or other document or information issued by Kingspan shall be subject to correction without any liability on the part of Kingspan.

2.5 Any advice or recommendations given by Kingspan or its employees or agents to the Buyer or its employees or agents as to storage, application, installation (except where Kingspan is the installer) or use of the Goods, which is not confirmed in writing by Kingspan, is followed or acted upon entirely at the Buyer’s own risk, and accordingly Kingspan shall not be liable for any such advice or recommendation which is not so confirmed.

3. Orders & Specifications

3.1 No Direct Order submitted by the Buyer shall be deemed to be accepted by Kingspan and no Contract shall come into effect between the parties in respect of a Direct Order unless and until a Kingspan Order Confirmation has been issued to the Buyer.

3.2 No Online Order submitted by the Buyer shall be deemed to be accepted by Kingspan and no Contract shall come into effect between the parties unless and until acknowledged by Kingspan and the Buyer receives a Kingspan Online Order Confirmation.

3.3 The Buyer shall be responsible to Kingspan for ensuring the accuracy of the information provided by the Buyer in the process of submitting a Direct Order or Online Order (which shall be the information comprised in the Kingspan Order Confirmation or Kingspan Online Order Confirmation, as applicable). The Buyer is responsible for giving Kingspan any further necessary information relating to the Goods in a Direct Order or Online Order (as applicable) within a sufficient time to enable Kingspan to perform the Contract in accordance with its terms.

3.4 The quantity, quality and description of and any specification for the Goods shall be those set out in the Kingspan Order Confirmation or Kingspan Online Order Confirmation (as applicable).

3.5 If the Goods are to be manufactured or any process is to be applied to the Goods by Kingspan in accordance with a specification submitted by the Buyer, the Buyer shall indemnify Kingspan against all loss, damages, costs and expenses awarded against or incurred by Kingspan in connection with or paid or agreed to be paid by Kingspan in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from Kingspan’s use of the Buyer’s specification.

3.6 Kingspan reserve the right to make any changes in the specification of the Goods which are required to conform to any applicable safety or other statutory requirements or which do not materially affect their quality or performance.

3.7The Goods displayed on Kingspan’s Website are for illustrative purposes only. The colour of Goods may very slightly from the images used on the Website.

4. Price of the Goods

4.1 The Buyer shall pay the Total Price of the Goods to Kingspan.  Kingspan may quote a price for the Goods.  All such prices quoted are valid for 30 days only and are on an ex-works basis after which time they may be altered by Kingspan without giving notice to the Buyer. This clause shall not apply in the case of  Online Orders, whereby the Total Price shall be stated on the Website at the time of placing an Online Order (subject always to any price changes made in accordance with these Conditions).

4.2 Kingspan reserve the right, by giving notice to the Buyer at any time before delivery, to increase the Total Price to reflect any increase in the cost of raw material or delivery cost to Kingspan which is due to any factor beyond the control of Kingspan.

4.3 If the cost of manufacture, storage or delivery of the Goods is increased as a result of the Buyer changing the Estimated Delivery Date, quantity or specification for the Goods or where there is any delay resulting from any change of instructions of the Buyer or a failure of the Buyer to give Kingspan adequate information or instructions (including any failure to advise Kingspan of any Delivery Constraint) then Kingspan reserves the right to increase the Total Price to reflect such increase in cost and Kingspan will give notice to the Buyer at any time before delivery of the Goods of such increase in Total Price and any such price increase shall be paid by the Buyer to Kingspan on or prior to delivery (unless otherwise agreed by Kingspan in accordance with these Conditions).

4.4 In case additional costs become payable in accordance with clauses 4.2 and 4.3 above, the Buyer shall be given an opportunity to cancel their Online Order or Direct Order, as relevant, in the event that the Buyer reasonably concludes within a reasonable timeframe that the increase in the Total Price is too high in relation to the Total Price agreed when the Kingspan Order Confirmation or Kingspan Online Order Confirmation was delivered. This right to cancel shall only apply in circumstances where the Buyer is a Consumer.

4.5 The cost of any pallets or returnable containers or ancillaries will be charged to the Buyer in addition to the Total Price if they are required to ensure safe delivery of the Goods but full credit will be given to the Buyer provided they are returned undamaged to Kingspan within seven days of delivery.

5. Terms of Payment

5.1 Subject to clause 5.2, payment of the Total Price will be made in advance at the time the Direct Order or Online Order is placed, unless additional costs become payable in accordance with clauses 4.2 and 4.3 above, in which case any such additional costs shall be payable on or prior to delivery of the Goods (unless otherwise agreed by Kingspan in accordance with these Conditions).

5.2 Kingspan may, at its sole discretion, grant the Buyer credit terms in order to make payment of the Total Price (or any part thereof) which shall be notified to the Buyer in Writing. In any such case, time for payment shall be of the essence. For the avoidance of doubt, credit terms will not be granted by Kingspan where Kingspan manufactures any bespoke product or the Goods are not of a size usually produced by Kingspan (in which case payment for such products or Goods shall be made in accordance with clause 5.1).

5.3 If the Buyer fails to pay the total of any sum due and payable to Kingspan on the due date for payment then Kingspan shall be entitled to:

5.3.1 terminate the Contract with immediate effect and/or suspend any further deliveries to the Buyer;

5.3.2 appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other Contract between the Buyer and Kingspan) as Kingspan may think fit (not withstanding any purported appropriation by the Buyer);

5.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 5% per annum above Barclays Bank Plc base rate from time to time, until payment in full is made with interest to be charged on a daily basis.

5.4 Kingspan will not exercise their right to cancel the Contract under clause 5.3 without first notifying the Buyer that he has failed to make payment in full in accordance with the relevant terms of payment and allowing the Buyer three working days from the date of the notification to make the payment in full.  Kingspan may give this notification in Writing or orally (including by telephone);

5.5 If the Buyer makes payment late then the time for delivery of the Goods may be extended by Kingspan by the same period as the payment was late.

6. Delivery

6.1 Delivery of the Goods shall be made by Kingspan to the Delivery address.  Deliveries will be made using articulated vehicles as the standard method of delivery, however, Kingspan may use other vehicle types at Kingspan’s discretion.  If the Buyer has a specific vehicle requirement or if there are any limitations on the size of vehicle used for delivery this must be specified by the Buyer as a Delivery Constraint in the Kingspan Order Confirmation or Kingspan Online Order Confirmation.

6.2 Time and date for delivery shall not be of the essence unless previously agreed by Kingspan in Writing.  Kingspan will endeavour to deliver the Goods on the Estimated Delivery Date(s) but the Goods may be delivered by Kingspan in advance of the Estimated Delivery Date(s) upon giving reasonable notice to the Buyer.

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

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

6.5 If the Buyer fails to take delivery of the Goods or fails to give Kingspan adequate delivery instructions at the time stated for delivery then, Kingspan may:

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

6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage, insurance and selling expenses) charge the Buyer for any balance due to make payment up to the Total Price.

 

7. Returns and Refunds

7.1 Notwithstanding anything else within these Conditions, a Buyer which is a Consumer may cancel their Contract within 14 days of the date on which the Contract was formed (the “Cancellation Period”) and receive a refund of the amount paid to Kingspan for the relevant Goods. To cancel a Contract the Buyer (being a Consumer) must complete and submit to Kingspan the ‘Request a Return’ form found on the Website at 'Request a return' within the Cancellation Period and Kingspan will acknowledge receipt by return email. Any refund due to the Buyer (being a Consumer) shall be made promptly following cancellation under this clause 7.1, save where the Goods have been delivered to the Buyer prior to such cancellation, in which case refund shall be made promptly following the safe return of the relevant Goods (undamaged) to Kingspan. For the avoidance of doubt, this right of cancellation shall only apply in circumstances where the Buyer is a Consumer.

7.2 In the event that the Goods are returned to Kingspan in a damaged or defective state (and provided that such damage or defect was not attributable to Kingspan and had not been notified to Kingspan in accordance with clause 9.5 below), Kingspan shall be entitled to deduct from any refund due to the Buyer the amount required to restore the relevant damaged Goods to their original undamaged  or non-defective state. 

7.3 If the Buyer receives the Goods before deciding to cancel the Contract, the Buyer must return the Goods to Kingspan without undue delay and no later than 14 days after the Buyer decides to cancel in accordance with this clause 7. The Buyer must contact the Kingspan customer service team who will provide full details of the procedure for return of Goods and the costs associated with such return (which shall be borne by the Buyer).

8. Risk & Property

8.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery at the Delivery address (where Kingspan is to deliver the Goods to the Delivery address) or at Kingspan’s works (where the Buyer is to collect the Goods) or, if the Buyer wrongfully fails to take delivery of the Goods, the time when Kingspan has tendered delivery of the Goods.

8.2 Not withstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until Kingspan has received in cash or cleared funds payment in full of the Total Price (including, for the avoidance of doubt, any increased costs due and payable under clauses 4.2 and 4.3) and all other goods under any other contract agreed to be sold by Kingspan to the Buyer for which payment is then due.

8.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Kingspan’s fiduciary agent, and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Kingspan’s property.

8.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) Kingspan shall be entitled at any time to require the Buyer to deliver up the Goods to Kingspan and Kingspan shall be entitled to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. This clause 8.4 shall not apply in circumstances where the Buyer is a Consumer.

8.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Kingspan.

8.6 The Buyer shall not be entitled to withhold payment of any amount payable under the Contract to Kingspan because of any disputed claim of the Buyer in respect of defective Goods or any other breach of the Contract nor shall the Buyer be entitled to set off against any amount payable under the Contract to Kingspan any monies which are not then presently payable by Kingspan for which Kingspan disputes liability. This clause 8.6 shall not apply in circumstances where the Buyer is a Consumer.

9. Warranties & Liability

9.1 Subject to the conditions set out below Kingspan warrants that at the time of delivery the Goods will correspond with their specification and will be free from defects in material and workmanship for a period of six months from the date of their initial use or six months from delivery, whichever is the first to expire unless a longer period is agreed between Kingspan and the Buyer or given in a separate warranty.

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

9.2.1 Kingspan shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer or any failure by the Buyer to install (except where designed and installed by Kingspan) the Goods correctly or failure to comply with Kingspan’s installation guidelines issued from time to time. For the avoidance of doubt, Kingspan is a supplier of Goods and has no input into the design of any project which the Goods maybe incorporated into except where Kingspan specifically designs and installs certain Goods;

9.2.2 Kingspan shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Kingspan’s instructions (whether oral or in Writing), misuse, alteration or repair of the Goods without Kingspan’s approval;

9.2.3 Kingspan shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the Total Price (including any increased costs payable pursuant to clauses 4.2 and 4.3) has not been paid by the due date for payment;

9.2.4 If the Buyer makes any material alteration to any of the Goods without Kingspan’s prior written approval then all warranties in the Goods either express or implied shall immediately become void.

9.3 The above warranty does not extend to parts, materials or equipment incorporated in the Goods but not manufactured by Kingspan in respect of which the Buyer shall be entitled only to the benefit of any such warranty or guarantee as is given by the manufacturer to Kingspan.

9.4 Subject as expressly provided in these Conditions, all warranties, representations, statements, conditions or other terms implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.

9.5 The Buyer shall within 48 hours of the arrival of each delivery of the Goods, notify Kingspan in Writing of any defect by reason of which the Buyer alleges that the Goods delivered are not in accordance with the specification and which should be apparent on reasonable inspection.

9.6 If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.

9.7 Notwithstanding any other provision of this Agreement neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under this Contract, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.

9.8 If at any time Kingspan claims Force Majeure in respect of its obligations under this Agreement with regard to the supply of the Goods, Kingspan shall be entitled to obtain from any other person such quantity of the Goods as Kingspan is unable to supply and Kingspan shall be entitled to supply those goods to the Buyer and the Buyer shall not be entitled to reject those goods on the basis that they have not been manufactured by Kingspan.

9.9 As a condition precedent to any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification the Buyer shall notify Kingspan within 48 hours of becoming aware of any defect.  If the Buyer does not notify Kingspan accordingly, the Buyer shall not be entitled to reject the Goods and Kingspan shall have no liability for any such defect or failure, and the Buyer shall be bound to pay the Total Price as if the Goods have been in accordance with the Contract and any specification. For the avoidance of doubt, this clause 9.9 is without prejudice to the Buyer’s right to cancel a Contract in accordance with clause 7 above.

9.10 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to Kingspan in accordance with these Conditions, Kingspan shall be entitled to repair or replace the Goods (or the part in question) or at Kingspan’s sole discretion, refund to the Buyer the Total Price where all of the Goods are defective (or a proportionate part of the Goods Price where not all the Goods are defective) but Kingspan shall have no further liability to the Buyer.

9.11 Except in respect of death or personal injury caused by Kingspan’s negligence Kingspan shall not be liable to the Buyer for any indirect, special, incidental, economic or consequential loss or damage including, without limitation, loss or damage incurred as a result of loss of time, loss of savings, loss of data, loss of goodwill, loss of business or loss of profits which arise out of or in connection with the supply of the Goods or their use or sale by the Buyer, except as expressly provided in these Conditions and Kingspan’s entire liability for any claim, whether in contract, tort (including negligence) or otherwise, for any loss or damage whatsoever, arising out of or in connection with the Contract or otherwise shall not in any event exceed the Total Price of the Goods in respect of any event or series of connected events..

9.12 Kingspan shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or failure to perform, any of Kingspan’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond Kingspan’s reasonable control.

10. Indemnity

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

10.1.1 as a condition precedent to the operation of this indemnity the Buyer notifies Kingspan of the claim (or threatened claim) within five working days of the Buyer becoming aware (or five days of when the Buyer should reasonably have been aware) of the claims, whichever is earlier.

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

10.1.3 the Buyer shall give Kingspan all reasonable assistance for the purposes of any such proceedings or negotiations and shall comply with Kingspan’s requirements and instructions; and

10.1.4 Kingspan shall be entitled to the benefit of, and the Buyer shall accordingly account to Kingspan for, all damages and costs (if any) awarded in favour of the Buyer.

11. Insolvency of Buyer

11.1 This clause applies if:

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

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

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

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

11.2 If this clause applies then Kingspan shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the Total Price shall become immediately due and payable not withstanding any previous agreement or arrangement to the contrary.

11.3 If any of the abovementioned events occur as outlined in clauses 11.1.1 – 11.1.3, then the Buyer shall inform Kingspan within 5 business days of such an event occurring. The Buyer is obliged to have adequate insurance run off cover in place for a minimum period of 6 years if any of the events as outlined in clauses 11.1.1 - 11.1.3 occur. If no such cover is in place when a liquidator is appointed, then the liquidator is obliged to take out such cover.

12. Export Terms

12.1 In these Conditions “Incoterms” means the International Rules for the Interpretation of Trade Terms of The International Chamber of Commerce as in force at the date when the Contract is made.  Unless the context otherwise requires, any term or expression which is defined in or given in particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions 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 agreed in Writing between the Buyer and Kingspan) apply not withstanding any other provision of these Conditions.

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

12.4 The Buyer shall be entitled to attend the testing and inspection of the Goods by Kingspan at Kingspan’s premises before transportation.  Kingspan shall have no liability for any claim in respect of any defect in or damage to the Goods which: (a) would be apparent on inspection; (b) is made or arises after shipment; or (c) arises during transit, save and except that clauses 12.4(b) and (c) shall not apply where the Buyer is a Consumer. If a Buyer which is a Consumer has selected a carrier to collect and deliver the Goods and this carrier was not approved by Kingspan, then Kingspan shall have no liability for any claim in respect of any defect in or damage to the Goods which arose during such shipment or transit.

12.5 Other than as expressly agreed by Kingspan in Writing, payment of all amounts due to Kingspan shall be made by bank transfer by the Buyer to Kingspan (to such account as notified by Kingspan to the Buyer), or via credit or debit card.

13. Disputes

13.1 If a dispute or difference arises under this Contract it shall be settled in accordance with the provisions of this clause.

13.2 When a dispute arises which one of the Parties requires to be settled in accordance with this clause that party shall give a notice in Writing to the other party stating the nature of the dispute and that the provisions of this clause are invoked.

13.3 Direct negotiation

13.3.1 When a party has given notice under clause 13.2 that a dispute has arisen both Parties shall attempt to settle the dispute amicably by direct negotiation before the commencement of mediation or arbitration.  Within 28 days of the notice given under clause 13.2 representatives of both Parties shall meet to endeavour to settle the dispute.  Both representatives shall have authority of the party they represent to settle the dispute on the party’s behalf.  The meeting may take place face to face or by way of telephone or video-conference or similar by agreement between the parties.  The status of the meeting shall be “without prejudice” unless and until agreement is reached between the representatives.  Unless both parties agree otherwise mediation may be commenced on or after the twenty eighth day after the day on which the notice under clause 13.2 was given, even if no attempt at direct negotiation has been made.

13.4 Mediation

13.4.1 if a dispute or difference arises under this Contract which cannot be resolved by direct negotiations in accordance with clause 13.3 after a period of 28 days then either party shall give a notice requiring the matter to be referred to mediation; and

13.4.2 the parties shall endeavour to settle the matter by mediation.

13.5 Arbitration

13.5.1 Provided that the parties shall have attempted to settle the dispute in accordance with the procedure set out in this clause as a condition precedent to arbitration, and provided that at least 28 days shall have elapsed since the notice under clause 13.4.1 was given then any dispute or difference between the parties of any kind whatsoever arising out of or in connection with this Contract shall be referred to arbitration in accordance with the latest version of The London Court of International Arbitration Rates.

13.5.2 Neither party may refer a dispute to arbitration unless:

13.5.2.1 The dispute has previously been referred to mediation in accordance with clause 13.4; or

13.5.2.2 A period of 28 days has elapsed since the notice requiring mediation under clause 13.4.1 and there has been no mediation or there has been no settlement of the dispute at that mediation.

Conduct of arbitration

13.5.3 Any arbitration shall be conducted in accordance with the latest version of The London Court of International Arbitration Rates.

Notice of reference to arbitration

13.5.4 Where either party requires a dispute or difference to be referred to arbitration, that party shall serve on the other party a notice of arbitration, identifying the dispute and requiring the other party to agree to the appointment of an arbitrator.  The arbitrator shall be an individual agreed by the parties or, failing such agreement within 14 days (or any agreed extension of that period) after the notice of arbitration is served, appointed on the application of either party by the President of The London Court of International Arbitration (“LCIA”), or other individual authorised by the LCIA to make such appointments.

Powers of Arbitrator

13.5.5 The arbitrator shall, without prejudice to the generality of his powers, have power to rectify this Contract so that it accurately reflects the true agreement made by the parties, to direct such measurements and/or valuations as may in his opinion be desirable in order to determine the rights of the parties and to ascertain and award any sum which should be paid by one party to the other and to determine all matters in dispute which shall be submitted to him.

Effect of award

13.5.6 Subject to clause 13.5.7 the award of the arbitrator shall be final and binding on the parties save that the parties agree pursuant to Section 45(2)(a) and Section 69(2)(a) of the Arbitration Act 1996 that either party may (upon notice to the other party and to the arbitrator):

13.5.6.1 apply to the courts to determine any question of law arising in the course of the reference; and

13.5.6.2 appeal to the courts on any question of law arising out of an award made in an arbitration under this arbitration agreement.

Appeal – questions of law

13.5.7 The parties hereby agree that either party may (upon notice to the other party and to the arbitrator):

13.5.7.1 apply to the courts to determine any question of law arising in the course of the reference; and

13.5.7.2 appeal to the courts on any question of law arising out of an award made in an arbitration under this arbitration agreement.

Arbitration Act 1996

13.5.8 The provisions of the Arbitration Act 1996 shall apply to any arbitration under this Contract wherever the same, or any part of it, shall be conducted. The seat of the arbitration shall be London.

14. General

14.1 Kingspan is a member of the group of companies whose holding company is Kingspan Group Plc, having its registered office at Dublin Road, Kingscourt, Co.  Cavan, Ireland and accordingly Kingspan may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of Kingspan.

14.2 Any notice required to be given to the Buyer under these Conditions shall be in Writing addressed to the Buyer at its registered office or principal place of business or last notified email address.

14.3 Any notice required to be given to Kingspan shall be in Writing addressed to Kingspan Environmental Limited, 180, Gilford Road, Portadown, Northern Ireland BT63 5LE, or any other address notified in Writing by Kingspan to the Buyer.

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

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

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

15. Compliance with anti- bribery & corruption laws

15.1 The Buyer shall and shall procure that persons associated with it or other persons who are involved in any way with this Contract shall:

15.1.1 comply with all applicable laws, statutes and regulations including but not limited to anti-bribery and anti-corruption legislation as specifically outlined in the UK Bribery Act 2010.

15.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the UK Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

15.1.3 comply with Kingspan’s Anti- Bribery & Corruption Policy as currently in force and any update thereof a copy of which can be found at http://www.kingspan.com.

15.1.4 maintain in place throughout the term of this Contract adequate policies and procedures under the UK Bribery Act 2010 and inform Kingspan immediately in Writing in the case of any breach, investigation of prosecution thereunder;

15.1.5 promptly report to Kingspan any request or demand for any undue financial or other advantage of any kind received by the Buyer in connection with the performance of this Contract; and

15.1.6 immediately notify Kingspan in Writing if a foreign public official becomes an officer or employee of the Buyer or acquires a direct or indirect interest in the Buyer (and the Buyer warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Contract).

For the purpose of this clause, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the UK Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the avoidance of doubt, a breach of any of the terms of this clause shall be a material breach in terms of the Contract.

15.2 The Buyer shall indemnify Kingspan against any losses, liabilities, damages, costs (including but not limited to legal fees) and expenses incurred by, or awarded against, Kingspan as a result of any breach of this clause by the Buyer or any persons associated with it in connection with the performance of this Contract.

15.3 Any breach of this clause by the Buyer or by anyone employed by the Buyer or acting on behalf of the Buyer (whether with or without the knowledge of the Intermediary) or the commission of any offence by the Buyer or by anyone employed by the Buyer or acting on the Buyer’s behalf under the UK Bribery Act 2010 in relation to this Contract or any other contract with Kingspan, shall entitle Kingspan to terminate the Contract and recover from the Buyer the amount of any loss resulting from such termination.