1. DEFINITIONS
1.1 In these Terms and Conditions the following expressions will have the following meanings unless inconsistent with the context:
“Actual Delivery Date” means the date that Karndean delivers Products and/or the date that the Buyer collects, or a third party collects on behalf of the Buyer, the Products;
“Associated Companies” means any associated companies of Karndean, including Karndean International Holdings Limited, Karndean International LLC, Karndean International Pty Ltd and DSL Flooring Limited;
“Business Day” any day other than a Saturday or Sunday or a public holiday in England;
“Buyer” the person, firm, organisation, company or association, whose order for the Products is accepted by Karndean, as detailed in the Order Confirmation;
“Confidential Information” all information in respect of the business of Karndean including (but not limited to) know-how or other matters connected with the Products and information concerning Karndean’s relationships with actual or potential clients, customers or suppliers and the needs and requirements of
Karndean and of such persons and any other information which, if disclosed, will be liable to cause harm to Karndean;
“Contract” these Terms and Conditions together with any special terms agreed in writing between the Buyer and Karndean as specified in the Order Confirmation; ;
“Delivery Date” the date on or by which Karndean shall deliver the Products or the date on or by which the Buyer shall collect (or appoint a third party to collect) the Products, as detailed in the Order Confirmation;
“Delivery Point” the place where delivery of the Products is to take place as detailed in the Order Confirmation or as otherwise agreed in writing between Karndean and the Buyer;
“Design Components” the specialist tiles in Karndean’s product range known as decorative, metallic, feature and design strips, decorative borders and corners which are installed with Karndean’s tile and plank to enhance them;
“DPL” shall mean the Data Protection Act 1998, or from the date it comes into force in the UK the General Data Protection Regulation (EU) 2016/679 (as applicable) and any guidance or codes of practice issued by the Information Commissioner from time to time (all as amended, updated or re-enacted from time to time) and any other applicable laws relating to the protection of personal data and the privacy of individuals;
“Due Date” the date for settlement of invoices agreed between Karndean and the Buyer being 20 days from the end of the month in which the invoice was issued;
“Force Majeure” anything preventing either party from performing any obligations (save for the Buyers obligation to pay for Products) which arises by reason of circumstances outside its reasonable control including, without limitation, strikes, lockouts or other industrial disputes, protest, act of God, war, national emergency,
terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood, storm, epidemic or default of suppliers or subcontractors;
“Intellectual Property” any and all intellectual property rights of any nature including but not limited to patents, rights to inventions, trademarks, registered designs, utility models, domain names, applications for and rights to apply for any of the foregoing, trade or business names, goodwill, copyright and rights in the
nature of copyright, unregistered design rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), rights to prevent passing off or unfair competition, database rights, topography rights and all other intellectual property rights, in each case whether registered
or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Karndean” means Karndean International Limited (registered with company number 01612506) whose registered office is at Crab Apple Way, Vale Park, Evesham, WR11 1GP, United Kingdom;
“Karndean Intellectual Property” means all Intellectual Property owned by Karndean and/or any of the Associated Companies, including, but not limited, to all unregistered design rights and registered designs relating to the Karndean Designs, copyright in the Karndean Works, the Karndean Trade Marks and the Karndean
Domain Names;
“Karndean Designs” means all designs of and relating to the Products;
“Karndean Domain Names” means any domain names registered or used by Karndean and/or any of the Associated Companies, including, but not limited to, “karndean.com”, “.karndean.co.uk”,“karndeanvantage.co.uk”, “palioflooring.com” and “palioflooring.co.uk”;“Karndean Works” means all works (including, but not limited to, materials, instruction manuals, photographs, videos, catalogues, software, promotional material, documents, information and website content) created by or on behalf of Karndean and/or any of the Associated Companies;
“Karndean Trade Marks” means all trademarks (registered and unregistered) owned by Karndean and/or any
of the Associated Companies, including but not limited to “Karndean”, “Karndean Designflooring”, “PALIO”, the Karndean Designflooring logo, and the names and logos of or used in relation to the Products and services provided by Karndean and any applications of the same;
"Order" the Buyer's order for Products placed by phone, fax, email in accordance with clause 2.2;
“Order Confirmation” has the meaning given in clause 2.3;
“Price” means the price of the Products, calculated in accordance with clause 4;
“Promotional Materials Licence” means the licence agreement between Karndean and the Buyer to use
certain promotional materials;
“Products” means any products which Karndean supplies to the Buyer (including any of them or any part of them) under a Contract;
“Terms and Conditions” means the terms and conditions in this document.
1.2 The headings in these Terms and Conditions are for convenience only and will not affect their construction or interpretation.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.GRANT, TERM AND FORMATION
Grant and term
2.1 The Buyer has a right to resell and promote Products pursuant to an Order on a non-exclusive basis to the Buyer’s customers in the United Kingdom and Ireland only on the terms of the Contract and the terms of the Promotional Materials Licence.
Order process
2.2 If the Buyer wishes to place an Order for Products, the Buyer shall send a request to Karndean, giving details of the Products that it requires and any information relating to the Products, including quantity of Products, requested timescales for delivery and any delivery requirements.
2.3 Karndean will either reject or accept the Buyer’s Order. Acceptance of the Buyer’s Order (in part or in full) will take place by Karndean emailing the Buyer to confirm acceptance of the Order (in part or in full) (“Order Confirmation”), subject to these Terms and Conditions. It is at this point that there will be a binding contract
in force between Karndean and the Buyer for Products set out in the Order Confirmation and on the terms set out in the Order Confirmation. No Contract shall come into existence until an Order Confirmation has been issued by Karndean.
2.4 Any Products sold by Karndean are sold to the Buyer subject to the terms of the Contract to the exclusion of all other terms and conditions and all previous oral or written representations and any other terms that the Buyer may seek to impose or incorporate or which may be implied by trade, custom, produce or course of
dealings.
2.5 Each Order or acceptance of a quotation for Products will be deemed to be an offer by the Buyer to purchase Products upon these Terms and Conditions. The Contract is formed when Karndean issues an Order Confirmation.
2.6 All prices quoted by Karndean are estimates only and not binding on Karndean until Karndean has issued an Order Confirmation.
2.7 The Buyer must ensure that the terms of its Order and information and/or any applicable specification supplied by the Buyer are complete and accurate.
2.8 All Orders are subject to these Terms and Conditions.
2.9 The Buyer may not cancel an Order once Karndean has issued an Order Confirmation and the Buyer cannot cancel the Contract whilst it is in force unless Karndean agrees otherwise in writing or the Buyer has a right to cancel under these Terms and Conditions.
2.10 If the Buyer requests to cancel an Order after an Order Confirmation has been issued and Karndean, in its absolute discretion, agrees to cancel such Order, the Buyer will be responsible for any costs and expenses incurred by Karndean up to cancellation of the Order and any costs that Karndean has committed to with third
parties including any costs relating to Products which have been manufactured to the Buyer’s specification.
2.11 The Contract may only be varied or amended in writing and signed on behalf of Karndean by a director of Karndean.
Changes to the Buyer’s Order
2.11 If, after Karndean has sent an Order Confirmation to the Buyer, the Buyer wishes to change its Order, the Buyer can do so provided that this request is made in writing to Karndean at least 1 hour before Karndean is due to dispatch the Order for delivery or 1 hour before the Buyer, or a third party appointed by the Buyer,
is due to collect the Buyer’s Order. If Karndean is able to accommodate the requested change, Karndean will confirm (in its sole discretion) that it accepts the Buyer’s changes by issuing a revised Order Confirmation including the agreed changes. Any changes may impact on the Delivery Date.
3. THE PRODUCTS
3.1 The quantity and description of the Products will be as set out from time to time in Karndean’s trade catalogues and confirmed in the Order Confirmation.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by Karndean and any descriptions or illustrations contained in Karndean’s catalogues or brochures are issued or published for thesole purpose of giving an approximate idea of the Products represented by or described in them. They will not form part of the Contract and the Products are not sold by way of sale by sample.
3.3 Karndean may make any changes to the specification, design, materials or finishes of the Products (even if the subject of a Contract) which:
3.3.1 are required to conform with any applicable safety or other statutory or regulatory requirements; or
3.3.2 do not materially affect their quality or performance.
3.4 The Buyer will indemnify and keep indemnified Karndean against all claims, losses, expenses, actions, liabilities, costs (including legal costs on a full indemnity basis and increased administration costs) and any other losses and/or liabilities arising out of Karndean’s use of specifications, details, drawing and/or any other
information and/or materials supplied by or on behalf of the Buyer.
3.5 Karndean will not normally accept an Order for Design Components without the tiles and/or planks which are required in order to install the Design Components but Karndean may, in its sole discretion, choose to do so.
4. PRICE
4.1 The Price for the Products will be:
4.1.1 the price set out in Karndean’s price list current at the date that Karndean issues the Order Confirmation; and
4.1.2 any applicable value added tax or other sales tax or duty.
4.2 Karndean will be entitled to increase the Price to cover Karndean’s increased costs, expenses and/or materials following:
4.2.1 the Order being placed and the date of delivery;
4.2.2 any changes in the specification made both at the request of the Buyer and agreed by Karndean or to
cover any extra expense as a result of the Buyer’s instructions or lack of instructions; or
4.2.3 complying with the requirements referred to in Clause 3.3.1.
4.3 Karndean will give the Buyer notice before an increase in Price is made pursuant to clause 4.2.
5. PAYMENT
5.1 Karndean may invoice the Buyer for the Products on or at any time after delivery and payment is due in the currency invoiced by the Due Date.
5.2 Time for payment will be of the essence.
5.3 No payment will be deemed to have been received until Karndean has received cash or cleared funds.
5.4 All sums payable to Karndean under the Contract will become due immediately upon termination of the Contract.
5.5 All payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless
the Buyer is required by law to make any such deduction or withholding.
5.6 Karndean may appropriate any payment made by the Buyer to Karndean to such of the invoices for the Products as Karndean thinks fit, despite any purported appropriation by the Buyer.
5.7 If any sum payable under the Contract is not paid on or by the relevant Due Date then, without prejudice to Karndean’s other rights and remedies, the Buyer shall pay interest on the overdue amount at the prescribed statutory rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 (as amended updated or superseded from time to time) at a fixed rate of 8% above the base rate of the Bank of England. If, for any reason, the Late Payment of Commercial Debts (Interest) Act 1998 does not apply or the rate of interest payable under the act falls below 8% above the base rate of the Bank of England, the rate of interest payable on any overdue amounts under the Contract shall be 8% above the base rate of the Bank of England from time to time in force and payable on a daily basis, and;
5.7.1 Karndean also reserve the right to charge a late payment fee as set out in the Late Payment of Commercial Debts (Interest) Act 1998
5.8 Notwithstanding Karndean’s rights under clause 5.7, if the Buyer fails to make payment on or by the Due Date:
5.8.1 Karndean shall notify the Buyer. If the Buyer fails to pay the outstanding amounts within 7 days of the date of Karndean’s notification, Karndean will notify the Buyer of the outstanding sums a second time. If the Buyer does not pay within 7 days of the date of Karndean’s second notification, Karndean will be entitled to
terminate the Contract pursuant to clause 11.1.1; and/or
5.8.2 Karndean will be entitled to suspend deliveries of the Products under the Contract and under any other contract with Karndean or an Associated Company; and/or
5.8.3 Karndean has the right to proceed against the Buyer for the full balance of any debt outstanding until all outstanding amounts on whatever account have been received by Karndean (in cash or cleared funds) from the Buyer.
5.9 Karndean may, in its sole discretion, give the Buyer a credit limit such credit limit may be subject to additional terms.
5.10 Notwithstanding Karndean exercising its discretion under clause 5.9, clauses 5.1 to 5.8 will apply and pursuant to clause 16.4 this will not be deemed to be a waiver of Karndean’s rights under the Contract.
6. INSTALMENTS
6.1 Karndean may deliver the Products by separate instalments. Each separate instalment may be invoiced separately and if so, will be paid for in accordance with the provisions of the Contract.
6.2 Each instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment will entitle the Buyer to repudiate or cancel any other Contract, instalment.
6.3 If payment is not made in full on or by the Due Date (and in cleared funds), Karndean may withhold or suspend future deliveries of the Products in accordance with its right under clause 5.8.2 above as well as the delivery of any other products under any other agreement between Karndean and the Buyer and any Associated
Company may suspend delivery of products under any agreement between an Associated Company and the Buyer.
7. DELIVERY
7.1 Deliveries will normally be made between 9am and 5pm on Karndean’s Business Days.
7.2 If the Order Confirmation states that:
7.2.1 Karndean will be responsible for delivery of the Products, Karndean will use reasonable endeavours to deliver the Products on or by the Delivery Date and, if no time is agreed in the Order Confirmation, then within a reasonable time of the Order Confirmation. Karndean will not be responsible for off-loading Products, offloading Products will be the Buyer’s responsibility. Time of delivery will not be of the essence. If Karndean is unable for any reason to fulfil any delivery or performance on or by the specified date, Karndean will not be deemed to be in breach of this Contract, nor (for the avoidance of doubt) will Karndean have any liability to
the Buyer for direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in delivery except as set out in this clause; or
7.2.2 the Buyer will be responsible for collecting Products, the Buyer will collect (or appoint a third party to collect) the Products on the Delivery Date, at the time and place specified in the Order Confirmation or as otherwise notified by Karndean and shall be fully responsible for loading and off-loading Products;
7.4 If Karndean fails to deliver the Products in accordance with its obligation to do so under clause 7.2.1 aboveand such failure is due to Karndean’s own default and not the acts and/or omissions of the Buyer (or any third party appointed by the Buyer), Karndean will refund to the Buyer any sums which the Buyer has paid to Karndean in respect of those Products that Karndean has failed to deliver.
7.5 Karndean may (in its absolute discretion) accept a postponement of delivery/collection by the Buyer, provided that the Buyer provides such request in writing at least 1 hour before Karndean is due to dispatch the Products for delivery. Where Karndean accepts postponement of delivery of the Products at the Buyer’s
request, the Buyer will pay Karndean any resulting charges for storage, transportation and insurance and theBuyer will pay for the Products as if the delivery had not been postponed.
7.6 The Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for off-loading the Products and will be responsible for off-loading Products.
7.7 If the Buyer fails to take delivery of /collect any of the Products when they are ready for delivery or fails to collect the Products in accordance with the Order Confirmation or to provide any instructions, documents, licences or authorisations required to enable the Products to be delivered on time (except solely on account of Karndean’s default), the Products will be deemed to have been delivered on the Delivery Date and (without prejudice to its other rights) Karndean may:
7.7.1 store or arrange for storage of the Products until actual delivery, collection or sale in accordance with Clause 7.7.2 and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or
7.7.2 following written notice to the Buyer, sell any of the Products at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract or account to the Buyer for any excess achieved over the price under the Contract, in both cases having taken into account any
charges related to the sale; and/or
7.7.3 treat the Contract as repudiated and shall have the right to rescind the Contract.
8. RISK/OWNERSHIP
8.1 Risk of damage to or loss of the Products will pass to the Buyer on delivery/collection (or deemed delivery in accordance with Clause 7.7).
8.2 Ownership of the Products will not pass to the Buyer until Karndean has received in full (in cash or cleared funds) all sums due to it in respect of:
8.2.1 the Products; and
8.2.2 all other sums which are or which become due to Karndean from the Buyer pursuant to clause 4.2 and/orclause 7 of these Terms and Conditions or all other sums which are or which become due to Karndean from the Buyer under any other agreement between the Buyer and Karndean.
8.3 Until ownership of the Products has passed to the Buyer, the Buyer must:
8.3.1 hold the Products on a fiduciary basis as Karndean’s bailee;
8.3.2 store the Products (at no cost to Karndean) separately from all other Products of the Buyer or any third party in such a way that they remain readily identifiable as Karndean’s property and mark the Products beingproperty of Karndean (in a manner that does not damage the Products);
8.3.3 insure the Products for the price at which they were sold to the Buyer by Karndean with any proceeds of a claim under such policy to be held by the Buyer on trust for Karndean;
8.3.4 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products;
8.3.5 notify Karndean immediately if it becomes subject to any of the events in clause 11.1.7; and
8.3.6 maintain the Products in satisfactory condition insured on Karndean’s behalf for their full price against all risks to the reasonable satisfaction of Karndean and will whenever requested by Karndean produce a copy of the policy of insurance.
8.4 The Buyer may resell the Products before ownership has passed to it solely on the following conditions any such sale will be a sale of Karndean’s property on the Buyer’s own behalf and the Buyer will deal as principal when making such a sale.
8.5 The Buyer’s right to possession of the Products will terminate immediately if any of the circumstances set out in Clause 11.1 occur.
8.6 Karndean will be entitled to recover payment for the Products notwithstanding that title in any of the Products has not passed from Karndean. Karndean may, at any time, elect to transfer title in Products to the Buyer by providing notice in writing.
8.7 The Buyer grants Karndean, its agents and employees an irrevocable licence at any time until title passes to the Buyer to enter any premises where the Products are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them and the Buyer shall procure access for
Karndean, its agents and employees to any third party premises where Products are or may be stored.
8.8 Where Karndean is unable to determine whether any or which products are the Products in respect of which the Buyer’s right to possession has terminated, Karndean’s decision in the matter will be final and binding on
the parties.
9. WARRANTY, EXCLUSION OF LIABILITY AND INDEMNITY
9.1 Karndean will, at its option repair, replace without charge or refund the price paid for any Products which the Buyer proves to Karndean’s reasonable satisfaction are either damaged, defective or non-compliant with
the specification of the Products as set out in the Order Confirmation, due to defects in material, workmanship or design (unless such design was made, furnished or specified by the Buyer) This clause 9.1 will only apply
where such proof is provided within 14 days of the Actual Delivery Date or 48 hours of the Actual Delivery Date where the defect should have been apparent on proper inspection of the pallets and Products . This obligation will not apply where:
9.1.1 the Products were not installed, applied and/or maintained strictly in accordance with Karndean’s recommendations and instructions;
9.1.2 the Products have been altered in any way whatsoever, or have been subject to misuse or unauthorised repair;
9.1.3 any maintenance requirements relating to the Products have not been complied with;
9.1.4 any instructions as to use and storage of the Products have not been complied with
9.1.5 any defects arising as a result of fair wear and tear, the Buyer’s wilful damage, negligence or abnormal storage or working conditions and/or
9.1.6 the Buyer has failed to notify Karndean of any defect or suspected defect within 48 hours of the Delivery Date where the defect should be apparent on proper inspection of the pallets and Products, or within 14 days
of the same coming to the knowledge of the Buyer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than 6 months from the Actual Delivery Date.
9.2 Karndean will refund to the Buyer the cost of carriage on the return of any such defective or damaged Products, and will deliver any repaired or replacement Products to the Buyer at Karndean’s own expense.
9.3 Karndean will, at its sole option:
9.3.1 refund the price of any missing Products; or
9.3.2 replace free of charge any Products missing from a delivery of Products provided that the missing items are notified to Karndean within 48 hours of the Actual Delivery Date, or if a total non-delivery occurs by the Delivery Date and this fact is notified to Karndean within 48 hours of receipt of the invoice , provided always that the Buyer proves to Karndean’s reasonable satisfaction that such Products are missing/have not been delivered.
9.4 Any Products which have been replaced will belong to Karndean. Any repaired or replacement Products will be liable to repair or replacement under the terms specified in Clause 9.1 for the unexpired portion of the 6 month period from the original date of delivery of the replaced Products.Limitations on Liability
9.5 Karndean will have no liability for:
9.5.1 any defect in the Products caused or contributed to the Buyer or by any third party (including compliance with any specification supplied by the Buyer or its representative) or as a result of the Products being used for display purposes or being handled by the Buyer’s customers;
9.5.2 defects in the Products caused by or contributed to by the fitting or laying of the Products including without limitation any failure to follow the installation guide which is either contained in or referred to on each package containing Product;
9.5.3 any faults or defects caused by wilful damage, abnormal working conditions, failure to follow Karndean’s
instructions, misuse, alteration or repair of the Products without Karndean’s approval, failure to use the recommended adhesive, design or feature strips, cleaning or maintenance system, improper maintenance or negligence on the part of the Buyer or any third party; and/or
9.5.4 any defects in the Products arising out of any of the circumstances set out in clauses 9.1.1 to 9.1.6.
9.6 Karndean will have no liability to the Buyer if Karndean has not been paid (in cash or cleared funds) in full on or by the Due Date.Exclusion of Liability
9.7 In the event of any breach of Karndean’s express obligations under Clauses 7.2.1, 9.1, 9.2 and 9.3 above the remedies of the Buyer will be limited to damages.
9.8 Notwithstanding any other provision of these Terms and Conditions, Karndean does not limit its liability (if any) to the Buyer:
9.8.1 for breach of Karndean’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;
9.8.2 for personal injury or death resulting from Karndean’s negligence;
9.8.3 under section 2(3) Consumer Protection Act 1987;
9.8.4 for any matter which it would be illegal for Karndean to exclude or to attempt to exclude its liability; or
9.8.5 for fraud.
9.9 Except as provided in clauses 7.4, 9.1 to 9.6 and subject to clause 9.8, Karndean will be under no liability to the Buyer (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for any economic loss, loss of profits, business, goodwill, reputation or similar loss whether direct or indirect howsoever caused arising out of or in connection with:
9.9.1 any of the Products, or the manufacture or sale or supply, or failure or delay in supply, of the Products by Karndean or on the part of Karndean’s employees, agents or sub-contractors;
9.9.2 any breach by Karndean of any of the express or implied terms of the Contract;
9.9.3 any use made or resale by the Buyer of any of the Products, or of any product incorporating any of the Products;
9.9.4 any statement made or not made, or advice given or not given, by or on behalf of Karndean
9.9.5 or otherwise under the Contract; and/or
9.10 Except as set out in clauses 7.2 and 9.1 to 9.6, Karndean hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Buyer.
9.11 Karndean’s total liability to the Buyer arising out of or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed100% of the Price paid for Products pursuant to the relevant Order by the Buyer and received (in cleared funds
or cash) by Karndean.
9.12 Each of Karndean’s employees, agents and sub-contractors may rely upon and enforce the exclusions and restrictions of liability of Karndean under this Contract in that person’s own name and for that person’s own benefit, as if the words “its employees, agents and sub-contractors” followed the word Company wherever it appears in those clauses.
9.13 The Buyer acknowledges that the above provisions of this Clause 9 are reasonable and reflected in the price which would be higher without those provisions, and the Buyer will accept such risk and/or insure
accordingly.Indemnity
9.14 The Buyer agrees to indemnify, keep indemnified and hold harmless Karndean from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits,
loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which Karndean incurs or suffers as a consequence of a direct or indirect
breach or negligent performance, any acts and/or omissions and/or failure in performance by the Buyer, its fitters, agents, employees, contractors, sub-contractors and customers for the Products, of the terms of the
Contract.
10. FORCE MAJEURE
10.1 Neither party will be in breach of its obligations under the Contract to the extent that it is precluded from performing its obligations by reason of Force Majeure save that this clause 10 shall not apply to any obligation on the Buyer to pay for the Products and/or any other sums due to Karndean (or an Associated Company).
10.2 A party whose performance of its obligations under the Contract is affected by Force Majeure will give written notice to the other, specifying the nature and extent of the Force Majeure, as soon as reasonably practicable after becoming aware of the Force Majeure and will at all times use all reasonable endeavours to
bring the Force Majeure event to an end and, whilst the Force Majeure is continuing, mitigate its severity, but without being obliged to incur any expenditure.
10.3 Subject to the provisions of Clause 10.2, the date for performance of such obligation will be deemed suspended only for a period equal to the delay caused by such event.
10.4 If the Force Majeure in question continues for more than three months, either party may give written notice to the other to terminate the Contract. The notice to terminate must specify the termination date, which must not be less than 15 days after the date on which the notice is given, and once such notice has been
validly given, the Contract will terminate on that termination date.
11. TERMINATION
11.1 Karndean may by notice in writing served on the Buyer terminate the Contract with immediate effect if the Buyer:
11.1.1 subject to any notices provided pursuant to clause 5.8, fails to make payment by the Due Date;
11.1.2 is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Buyer fails to remedy such breach within 14 days service of a written notice from Karndean, specifying the breach and requiring it to be remedied;
11.1.3 breaches one or more terms of the Contract more than twice in any period of twelve months;
11.1.4 pledges or charges any Products which are Karndean’s property;
11.1.5 does or causes anything to be done, or is associated with anything which may, in Karndean’s reasonable opinion, damage or bring into disrepute, the reputation of Karndean or any Associated Company or products of Karndean or any Associated Company;
11.1.6 breaches a term or terms of the Promotional Materials Licence;
11.1.7 becomes bankrupt or has a bankruptcy petition presented against him, becomes insolvent, makes any composition with its/his creditors, in the case of an individual dies or, by reason of illness or capacity (mental or physical) is incapable of managing its own affairs or becomes a patient under any mental health legislation;
11.1.8 has any distraint, execution or other process levied or enforced on any of its property;
11.1.9 appears, due to its credit rating, to be financially inadequate to meet the Buyer’s obligations under theContract;
11.1.10 ceases to trade or appears in the reasonable opinion of Karndean likely or is threatening to cease to trade;
11.1.11 the equivalent of any of the above occurs to the Buyer under the jurisdiction to which the Buyer is subject; or
11.1.12 Karndean reasonably anticipates that one of the above set of circumstances is about to occur.
11.2 Notwithstanding any other rights that Karndean may have under the Contract, Karndean may terminate the Contract and close any account which the Buyer may have with Karndean at any time and for any reason.
11.3 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities of either the Buyer or Karndean accrued prior to termination. The provisions of these Terms and Conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
11.4 Karndean will be entitled to suspend any deliveries otherwise due to occur following service of a noticepursuant to clause 11.1 or 11.2 and, if the breach is remediable, until either the breach is remedied or the Contract terminates, whichever occurs first.
12. CONSEQUENCES OF TERMINATION
12.1 If any of the events in Clause 11.1 or 11.2 occurs, then Karndean may (at its sole election), without notice;
12.1.1 enter the Buyer’s premises (or, in the case that the Products are stored at the premises of a third party, the Buyer shall procure that Karndean shall have the right to enter the premises of such third party) where Products owned by Karndean may be and repossess and dispose of or sell any Products found which are owned
by Karndean so as to discharge any sums due to Karndean under the Contract or any agreement Karndean has with the Buyer;
12.1.2 require the Buyer not to re-sell or part with the possession of any Products owned by Karndean until the Buyer has paid in full all sums due to Karndean under the Contract and under any other agreements;
12.1.3 withhold delivery of any undelivered Products and stop Products in transit;
12.1.4 cancel any other agreement with the Buyer; and
12.1.5 all monies due to Karndean will become immediately payable whether under the Contract or any other agreement between the Buyer and Karndean.
12.2 If the Contract is terminated for any reason:
12.2.1 the Buyer will be entitled to keep any Products which have been supplied by Karndean and are owned by the Buyer unless Karndean elects (in its sole discretion) to buy back un-used Products at the Price that the Buyer originally paid; and
12.2.2 the Promotional Materials Licence shall automatically terminate.
13. INTELLECTUAL PROPERTY
13.1 The Karndean Intellectual Property shall at all times remain the property of Karndean and the Associated Companies and subject to clause 13.2 or otherwise by the express prior written agreement of Karndean, the Buyer will obtain no licence, rights, title or interest in or in relation to the Karndean Intellectual Property.
13.2 Use by the Buyer of Karndean’s Intellectual Property shall be strictly in accordance with the terms of the Promotional Materials Licence provided by Karndean to the Buyer. If the Buyer has not been provided with a
copy of the Promotional Materials Licence, it is not entitled to use any Karndean Intellectual Property and shallimmediately notify Karndean and request a copy. Karndean is entitled (in its sole discretion) to determine
whether or not the Buyer is entitled to use any Karndean Intellectual Property.
13.3 The Buyer shall not use any other marks, logos, materials, names or branding that is the same or similar to any of Karndean’s Intellectual Property Rights.
13.4 The Buyer will not, without Karndean’s written consent, make any modification to the Products or their packaging, including allowing any Karndean Trade Marks or other words or marks applied to the Products to be obliterated, obscured or omitted nor add any additional marks or words.
14. CONFIDENTIALITY
14.1 The Buyer will keep confidential any and all Confidential Information that it may acquire.
14.2 The Buyer will not use the Confidential Information for any purpose other than to perform its obligations under the Contract. The Buyer will ensure that its officers and employees comply with the provisions of this Clause 14.
14.3 The obligations on the Buyer set out in Clause 14.1 and 14.2 will not apply to any information which:
14.3.1 is publicly available or becomes publicly available through no act or omission of the Buyer; or
14.3.2 the Buyer is required to disclose by order of a court of competent jurisdiction.
14.4 If the Buyer provides Karndean with any personal information or Karndean collects personal information from the Buyer, such personal information will be processed by Karndean in accordance with Karndean’s privacy policy available at Privacy policy (karndean.com) https://www.karndean.com/en-gb/floors/terms-andconditions/privacy-policy/
14.5 Clauses 14.1 to 14.3 shall survive termination of the Contract.
15. Customer personal information
15.1 The Buyer shall, promptly following the sale of any Products to its customers pursuant to these Terms and Conditions, provide in writing to Karndean the customer’s contact details including the customer’s name, postal
address, email address and telephone number and details of the Product bought by the customer (including the name of the Product and quantity purchased and any other order details) (“Customer Information”).
15.2 The Buyer shall be responsible for ensuring that it has obtained any permissions necessary by law and DPL from its customers or has a legal basis under DPL to provide Karndean with Customer Information for the purposes of contacting the buyer’s customers to provide any guarantees and after sales service relating to the Products purchased from the Buyer and that the Customer’s Information is complete and accurate.
15.3 The Buyer acknowledges that Karndean is reliant on the Buyer to ensure that it has obtained permission or has a legal basis to provide Karndean with any Personal Data (as that term is defined in the DPL) comprised
in the Customer Information pursuant to clause 15.2 and as such, Karndean will not be responsible for, and the Buyer shall indemnify Karndean and keep Karndean indemnified against any breach of the DPL and any claim brought by a Data Subject (as that term is defined in the DPL) arising out of or resulting from the Buyer’s failure to comply with clause 15.2.
15.4 The parties acknowledge that upon the supply of Customer Information by the Buyer to Karndean, Karndean will become a Data Controller (as that term is defined in the DPL) in respect of any Personal Data comprised in Customer Information and any Processing (as that term is defined in the DPL) and use of Customer
Information by Karndean shall be subject to such terms and conditions as Karndean deems appropriate. 15.5 Each party shall:
15.5.1 notify the other party if it receives a complaint from a Data Subject (as that term is defined in the DPL) or any notice or correspondence from a Regulator (as that term is defined in the DPL) relating to its processing of Personal Data under these Terms and Conditions; and
15.5.2 provide reasonable assistance to the other party in respect of any such complaint from a Data Subject or any such notice or correspondence from a Regulator.
16. GENERAL
16.1 Time for performance of all obligations of Karndean under the Contract is not and may not be made by notice of the essence.
16.2 Each right or remedy of Karndean under any Contract is without prejudice to any other right or remedy of Karndean under this or any other Contract.
16.3 If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required,
be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
16.4 No failure or delay by Karndean to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
16.5 Karndean may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.
16.6 The Contract is personal to the Buyer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without Karndean’s prior written consent.
16.7 Save as set out in Clause 9.12, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
16.8 The Contract contains all the terms which Karndean and the Buyer have agreed in relation to the Products and supersedes any prior written or oral agreements, representations or understandings between the parties
relating to such Products. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Karndean which is not set out in this Contract.
16.9 Any dispute shall be decided by a specialist nominated on the application of either party by the President
for the time being of The Contract Flooring Association. The decision of any such specialist (acting as an expert
and not as an arbitrator) will be final and binding on the parties.
17. COMMUNICATION
17.1 Any notice, demand or communication in connection with the Contract will be in writing and may be delivered by hand, first class post, email or facsimile, addressed to the recipient at its registered office or its address or facsimile number as the case may be stated in Clause 17.4 below (or such other address or facsimile number or person which the recipient has notified in writing to the sender in accordance with this Clause 17, to be received by the sender not less than seven Business Days before the notice is despatched). Any such notice will be marked for the attention of the Company Secretary where the party to be served is a company
or the most senior office in any other case
17.2 The notice, demand or communication will be deemed to have been duly served:
17.2.1 if delivered by hand, at the time of delivery;
17.2.2 if delivered by first class post or Special Delivery post, 48 hours after being posted or in the case of airmail 14 days after being posted (excluding days other than Business Days);
17.2.3 if delivered by facsimile, at the time of transmission, provided that a confirming copy is sent by first class post to the other party within 24 hours after transmission;
17.2.4 if sent by email, at the time of transmission, provided that a confirming copy has been sent by first class post to the other party within 24 hours of transmission provided that, where in the case of delivery by hand or transmission by email and/or facsimile, such delivery or transmission occurs either after 4.00 pm on a
Business Day, or on a day other than a Business Day, service will be deemed to occur at 9.00 am on the next following Business Day (such times being local time at the address of the recipient).
17.3 Service by email and/or facsimile is a valid means of service only where service of the original notice, demand or communication is not required.
17.4 The addresses, email addresses and facsimile numbers for the parties are as detailed on any Order Confirmation and/or invoice relating to the Products and the Contract.
17.5 For the avoidance of doubt, where proceedings have been issued in the Courts of England and Wales, the provisions of the Civil Procedure Rules must be complied with in respect of the service of documents in connection with those proceedings.
18.GOVERNING LAW AND JURISDICTION
18.1 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
18.2 Subject to clause 16.9, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any disputes or claim (including non-contractual disputes or claims) arising out of or in connection with the subject matter or formation of the Contract.
(May 2018)