Terms & conditions of sale
The Customer's attention is drawn in particular to the provisions of clause 10.
1. INTERPRETATION
1.1 Definiations:
| "Business Day" | a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. |
| "Conditions | the terms and conditions set out in this document as amended from time to time in accordance with clause 14.3. |
| "Contract" | the contract between Lignacite and the Customer for the sale and purchase of the Goods in accordance with these Conditions. |
| "Customer" | the person or firm who purchases the Goods from Lignacite. |
| "Delivery Location" | has the meaning given in clause 4.2. |
| "Force Majeure Event" | an event, circumstance or cause beyond a party's reasonable control. |
| "Goods" | the goods (or any part of them) set out in the Order. |
| "Lignacite" | Lignacite Limited, incorporated and registered in England and Wales with company number 00436709. |
| "Order" | the Customer's order for the Goods, as set out in the Customer's purchase order form or the Customer's written acceptance of Lignacite's quotation, as the case may be. |
| "Specification" | any specification for the Goods, including any related descriptions and dimensions, that is agreed in writing by the Customer and Lignacite. |
1.2 Interpretation:
1.2.1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
1.2.3. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
2. BASIS OF CONTRACT
2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.
2.3. The Order shall only be deemed to be accepted when Lignacite issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4. The Customer hereby warrants that the person making an Order on its behalf is duly authorised and has all necessary power and authority to make such order and bind the Customer.
2.5. A quotation for the Goods given by Lignacite shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
2.6. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate. Any recommendation or suggestion relating to any use, storage or handling of the Goods made by Lignacite either in sales and technical literature or in response to a specific enquiry or otherwise is given in good faith but it is strictly for the Customer to satisfy itself of the suitability of the Goods for its own particular purposes and the Customer hereby acknowledges and agrees that it does not rely on any such recommendation, suggestion or representation.
2.7. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.8. Any samples, drawings, descriptive matter or advertising produced by Lignacite and any descriptions or illustrations contained in Lignacite's website or marketing material are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
3. GOODS
3.1. The Goods are as described on Lignacite's website (www.lignacite.co.uk) and/or on the product data sheet(s) attached to a quotation provided by Lignacite, as modified by any applicable Specification.
3.2. Lignacite reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and Lignacite shall notify the Customer in any such event.
3.3. The Goods are manufactured from a range of natural raw materials and pigments. Variations in these materials can lead to shade and texture variations in the finished Goods and Lignacite will not accept liability for any such variations and does not guarantee the colour of any Goods.
3.4. Where the Goods include packs of blocks, these must not be stored more than one pack high on rough ground. Palletised blocks can be stacked no more than three high on level ground.
4. DELIVERY AND COLLECTION
4.1. Lignacite shall ensure that the Goods are accompanied by a delivery note that shows the date of the Order, all relevant reference numbers, the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered or collected by instalments, the outstanding balance of Goods remaining.
4.2. Lignacite shall, at the Customer’s option (which it shall specify in the Order):
4.2.1. deliver the Goods to the location set out in the Order or such other location as the parties may agree (the “Delivery Location”) on such date as may be agreed between the parties; or
4.2.2. permit the Customer to collect the Goods on a date and from a location agreed with the Customer, during Lignacite’s collection times as set out in Lignacite’s written acceptance of the Order.
4.3. Delivery is completed on the completion of unloading of the Goods at the Delivery Location. Collection is completed on completion of loading of the Goods into the Customer’s transportation method at the collection location.
4.4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
4.5. If Lignacite fails to deliver or permit collection of the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.6. If the Customer fails to take delivery of the Goods or collect the Goods on the scheduled date of delivery or collection, then, except where such failure or delay is caused by a Force Majeure Event or Lignacite’s failure to comply with its obligations under the Contract in respect of the Goods:
4.6.1. delivery or collection (as the case may be) of the Goods shall be deemed to have been completed at 4.00pm on the agreed date for delivery; and
4.6.2. Lignacite shall store the Goods until actual delivery or collection takes place and charge the Customer for all related costs and expenses (including insurance).
4.7. If ten Business Days after the agreed date for delivery or collection the Customer has not taken actual delivery or collected the Goods, Lignacite may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8. Lignacite may deliver or permit collection of the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or collection, or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.9. Lignacite’s standard delivery charges include up to 60 minutes of unloading at the Delivery Location. If the Customer requires additional unloading time, this will be charged at 5-minute intervals, at Lignacite’s standard rates.
5. PALLETS
5.1. Pallets are not automatically added to deliveries and must be requested by the Customer.
5.2. Lignacite will endeavour to collect returnable pallets during the course of normal deliveries to the Customer’s site, provided they are reasonably stacked ready for collection.
5.3. If Lignacite is requested to attend the Customer’s site specifically to collect pallets, other than one end of build collection, then a charge will be made to cover the cost of haulage.
6. CUSTOMER'S OBLIGATIONS
6.1. If Lignacite is to deliver the Goods, the Customer shall:
6.1.1 provide safe and adequate access to the point of discharge of the Goods, including adequate manoeuvring space for the delivery vehicle (in each case, to Lignacite’s reasonable satisfaction);
6.1.2. if the Goods need to be placed onto pallets at the Delivery Location, set out sufficient pallets to facilitate safe offloading;
6.1.3. provide Lignacite with any relevant information in connection with delivery of the Goods prior to the agreed date for delivery.
6.2. If Lignacite is prevented or delayed from carrying out delivery of the Goods by any act or omission by the Customer or failure by the Customer to perform any of the obligations set out in clause 6.1 (“Customer Default”):
6.2.1. without limiting or affecting any other right or remedy available to it, Lignacite shall have the right to suspend delivery of the Goods until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Lignacite’s performance of any of its obligations;
6.2.2. Lignacite shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Lignacite's failure or delay to perform any of its obligations as set out in this clause 6.2; and
6.2.3. the Customer shall reimburse Lignacite on written demand for any costs or losses sustained or incurred by Lignacite arising directly or indirectly from the Customer Default.
7. QUALITY
7.1. Lignacite warrants that on delivery or collection the Goods shall:
7.1.1. conform in all material respects with their description and any applicable Specification;
7.1.2. be free from material defects in design, material and workmanship;
7.1.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
7.1.4. be fit for any purpose held out by Lignacite.
7.2. Subject to clause 7.3 if:
7.2.1. the Customer gives notice in writing to Lignacite within 24 hours of delivery or collection that some or all of the Goods do not comply with the warranty set out in clause 7.1;
7.2.2. Lignacite is given a reasonable opportunity of examining such Goods; and
7.2.3. the Customer (if asked to do so by Lignacite) returns such Goods to Lignacite’s place of business at the Customer's cost,
Lignacite shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
7.3. Lignacite shall not be liable for the Goods' failure to comply with the warranty set out in clause 7.1 if:
7.3.1. the Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;
7.3.2. the defect arises because the Customer failed to follow Lignacite’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
7.3.3. the defect arises as a result of Lignacite following any design or specification supplied by the Customer;
7.3.4. the Customer alters or repairs such Goods without the written consent of Lignacite;
7.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
7.3.6. the Goods differ from their description or any relevant Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4. Except as provided in this clause 7, Lignacite shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 7.1.
7.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
7.6. These Conditions shall apply to any repaired or replacement Goods supplied by Lignacite.
7.7. Other than as set out in this clause 7, Lignacite shall not be obligated to accept any returns of the Goods and the Customer acknowledges that, subject to compliance with the warranty set out in clause 7.1, delivery or collection of the Goods shall be final.
8. TITLE AND RISK
8.1. The risk in the Goods shall pass to the Customer on completion of delivery or collection.
8.2. Title to the Goods shall not pass to the Customer until the earlier of:
8.2.1. Lignacite receives payment in full (in cash or cleared funds) for the Goods, in which case title to the Goods shall pass at the time of payment; and
8.2.2. the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 8.4.
8.3. Until title to the Goods has passed to the Customer, the Customer shall:
8.3.1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Lignacite's property;
8.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
8.3.4. notify Lignacite immediately if it becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.4; and
8.3.5. give Lignacite such information as Lignacite may reasonably require from time to time relating to the Goods and/or the ongoing financial position of the Customer.
8.4. Subject to clause 8.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Lignacite receives payment for the Goods. However, if the Customer resells the Goods before that time:
8.4.1. it does so as principal and not as Lignacite’s agent; and
8.4.2. title to the Goods shall pass from Lignacite to the Customer immediately before the time at which resale by the Customer occurs.
8.5. At any time before title to the Goods passes to the Customer, Lignacite may:
8.5.1. by notice in writing, terminate the Customer's right under clause 8.4 to resell the Goods or use them in the ordinary course of its business; and
8.5.2. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
9.PRICE AND PAYMENT
9.1. The price of the Goods shall be the price set out in the Order.
9.2. Lignacite may, by giving notice to the Customer at any time before delivery or collection, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
9.2.1. any request by the Customer to change the delivery or collection date(s), quantities or types of Goods ordered, or the Specification; or
9.2.2. any delay caused by any instructions of the Customer or failure of the Customer to give Lignacite adequate or accurate information or instructions.
9.3. The price of the Goods:
9.3.1. excludes amounts in respect of value added tax (“VAT”), which the Customer shall additionally be liable to pay to Lignacite at the prevailing rate, subject to the receipt of a valid VAT invoice; and
9.3.2. includes the costs and charges of Lignacite’s standard packaging, insurance and delivery of the Goods on Business Days (between the hours of 9am and 5pm) using articulated lorries.
9.4. If the Customer requires:
9.4.1. packaging, insurance and/or delivery which is not in accordance with Lignacite’s standard procedures (including, without limitation, Rigids, Wag & Drop, and Drop and Go);
9.4.2. delivery at a time which is not between 8am to 4pm on a Business Day; or
9.4.3. delivery of Goods in a quantity which is less than a full lorry load,
Lignacite shall confirm the additional costs prior to such costs being incurred and shall invoice for such additional costs in addition to the price of the Goods.
9.5. Lignacite may invoice the Customer for the Goods on or at any time after the completion of delivery or collection.
9.6. Unless stated otherwise in respect of a specific Order, the Customer shall pay each invoice submitted by Lignacite:
9.6.1. by the end of the calendar month following the month which includes the date of the invoice; and
9.6.2. in full and in cleared funds to a bank account nominated in writing by Lignacite,
and time for payment shall be of the essence of the Contract.
9.7. If the Customer fails to make a payment due to Lignacite under the Contract by the due date, then, without limiting Lignacite's remedies under clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.8. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. LIMITATION OF LIABILITY
10.1. The restrictions on liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
10.2.1. death or personal injury caused by negligence; or
10.2.2. fraud or fraudulent misrepresentation.
10.3. Subject to clause 10.2, Lignacite shall have no liability to the Customer in respect of the following types of loss, which are wholly excluded:
10.3.1. loss of profits;
10.3.2. loss of sales or business;
10.3.3. loss of agreements or contracts;
10.3.4. loss of anticipated savings;
10.3.5. loss of use or corruption of software, data or information;
10.3.6. loss of or damage to goodwill; and
10.3.7. indirect or consequential loss.
10.4. Subject to clause 10.2 and 10.3, Lignacite's total liability to the Customer shall not exceed 200% of the total aggregate price of the Goods as set out in the Order.
10.5. This clause 10 shall survive termination of the Contract.
11. ORDER CANCELLATION
11.1. The Customer shall be permitted to cancel the Order (or part of the Order) by giving notice in writing to Lignacite at any time up to completion of delivery or collection (a “Cancellation Notice”). For the avoidance of doubt, the Cancellation Notice must be received by Lignacite prior to completion of delivery or collection in order to be effective.
11.2. In the event that the Customer serves a Cancellation Notice, the Customer shall pay to Lignacite:
11.2.1. all reasonable costs incurred by Lignacite in connection with such cancelled Order (or part of an Order) up to receipt of the Cancellation Notice; and
11.2.2. if the Cancellation Notice is received:
(a) between 12pm and 2pm on the day prior to the agreed date for delivery, 66% of the costs of delivery; or
(b) after 2pm on the day prior to the agreed date for delivery, 100% of the costs of delivery.
11.3. Upon receipt of the Cancellation Notice Lignacite shall raise an invoice for the sum as set out in clause 11.2, which shall be payable by the Customer in accordance with clause 9.6.
12. TERMINATION
12.1. Without limiting its other rights or remedies, Lignacite may terminate this Contract with immediate effect by giving written notice to the Customer if:
12.1.1. the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
12.1.2. the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
12.1.3. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
12.1.4. the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
12.2. Without limiting its other rights or remedies, Lignacite may suspend provision of the Goods under the Contract or any other contract between the Customer and Lignacite if the Customer becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.4, or Lignacite reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
12.3. Without limiting its other rights or remedies, Lignacite may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.4. On termination of the Contract for any reason the Customer shall immediately pay to Lignacite all of Lignacite's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Lignacite shall submit an invoice, which shall be payable by the Customer immediately on receipt.
12.5. Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
12.6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
13. FORCE MAJEURE
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate the Contract by giving 14 days' written notice to the affected party.
14. GENERAL
14.1. Assignment and other dealings.
14.1.1. Lignacite may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
14.1.2. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Lignacite.
14.2 Entire agreement.
14.2.1. The Contract constitutes the entire agreement between the parties.
14.2.2. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
14.3. Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.4. Waiver.
14.4.1. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
14.4.2. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
14.5. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 14.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.6 Notices.
14.6.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the other party’s main email address.
14.6.2. Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c) if sent by email, at 9.00 am on the next Business Day after transmission.
14.6.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14.7. Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
14.8. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
14.9. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
