1.2 These terms and conditions apply in preference to and supersede any terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties with reference to the goods with which this contract is concerned. Without prejudice to the generality of the foregoing the Seller will not be bound by any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the seller in writing.
1.3 The statutory rights of a consumer under the Sale of Goods Act 1979 (as amended), are not excluded or limited except as provided for in clauses 11 to 13 of these terms and conditions.
1.4 These terms and conditions may be changed at any time and will be posted online. Certain provisions of these terms and conditions may be superseded by expressly designated legal notices or terms located on particular pages of the Seller’s Website i.e. certain product warranties.
In these Conditions:
2.1 “Buyer/s” means the person/s or company whose order for the Goods is accepted by the Seller;
2.2 “Carrier” means any person who in a contract of carriage undertakes to perform or procure the carriage of the Goods to the Buyer and any employee, agent or contractor of that person;
2.3 “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;
2.4 “Containers” means bags, returnable silos, plastic tubs, metal skips, pallets, void packs, and any other products used for the containment, protection, storage, handling, delivery and presentation of the Goods;
2.5 “Contract” means the contract between the Seller and the Buyer for the sale and purchase of the Goods;
2.6 “Goods” means the products ‘RockinColour™’ and ‘Rockin Nature™’ (including any instalment delivery of the goods or any parts of them) which the Seller is to supply in accordance with these Conditions;
2.7 “Seller”means RockinColour Limited having its registered address at 2 School Road, Saintfield, BT24 7JH (Company Number NI637568).
3. BASIS OF THE SALE
3.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with these Conditions which shall govern the Contract to the exclusion of any other terms and conditions (including any terms and conditions which the Buyer purports to apply under any purchase order, confirmation of order or similar document).
3.2 Each order for Goods by the Buyer to the Seller shall be deemed to be an offer by the Buyer to purchase the Goods subject to these Conditions, and, for the avoidance of doubt, any call-off order on a Contract which differs from the negotiated Contract shall, to the extent accepted by the Seller in accordance with Condition 3.1, be deemed to be part of the Contract and subject to these Conditions.
3.3 Any quotation is given on the basis that no Contract will come into existence until the Seller accepts the order in accordance with Condition 3.1. Any quotation is valid for a period of 30 days only from its date provided that the Seller has not previously withdrawn it.
3.4 The Seller's catalogues, instruction leaflets, manuals, drawings, illustrations, specifications, quotations and price lists do not constitute offers by the Seller and the Seller reserves the right to withdraw the same at any time prior to acceptance of an order.
3.5 No terms or conditions endorsed upon, delivered with, or contained in the Buyer's purchase order, specification or similar document will form part of the Contract simply as a result of a reference to such document in the Contract.
3.6 No variation to these Conditions shall be binding unless agreed in writing by an authorised employee of the Seller of the grade of general manager or director.
3.7 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed in writing by a director of the Seller or senior manager of the Seller who is authorised by a director of the Seller.
3.8 In entering into the Contract, the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed provided always that this Condition 3.8 does not seek to exclude liability for fraudulent misrepresentation by the Seller or its employees or agents.
3.9 Save where otherwise agreed in writing between the parties, any recommendation or suggestion relating to the use, storage or handling of the Goods made by the Seller either in
sales and technical literature or in response to a specific enquiry or otherwise is given in good faith but it is for the Buyer to satisfy itself of the suitability of the Goods for its own particular purposes.
3.10 All drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract.
3.11 The Seller reserves the right to record all orders and enquiries received by telephone.
4. ORDERS, SPECIFICATIONS, SAMPLING AND TESTING
4.1 The Buyer is deemed to have placed an order with the Seller by ordering via our online checkout process or via telephone ordering system. As part of the checkout process the Buyer will be given the opportunity to check the order and to correct any errors prior to confirming the order.
4.2 Once completed, the Seller will send out an order acknowledgement detailing the products ordered and the pricing to the e-mail address provided during the ordering process.
4.3 The order is only accepted by the Seller upon dispatch of the ordered goods and confirmed via a dispatch confirmation e-mail, even if the Buyer’s payment has been processed immediately.
4.4 The Seller will notify the Buyer by phone or e-mail if they cannot accept the order or if the order is cancelled prior to dispatch.
4.5 The Seller may refuse to accept an order:
(a) Where goods are not available;
(b) Where the Seller cannot obtain authorization for payment;
(c) If there has been a pricing or description error;
(d) If the Buyer does not meet any eligibility criteria set out in the Seller terms and conditions.
4.6 Order Amendments
Any order amendments must be made before goods are dispatched; dispatch may be up to three working days prior to delivery. A unique amendment reference will be returned with the amendment confirmation email; this will be needed in any further correspondence or dispute. The Seller is unable to amend orders after dispatch.
4.7 No order submitted by the Buyer shall be deemed to be accepted by the Seller until the earlier of an acknowledgement of order being dispatched to the Buyer, or the Goods being delivered to the Buyer.
4.8 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
4.9 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller's quotation forming part of these Conditions or the Buyer's order (if accepted by the Seller in accordance with these Conditions).
4.10 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss in connection with any claim for infringement of any patent, copyright, design or trademark, or other intellectual property rights which result from the Seller's use of the Buyer's specification.
4.11 The attention of the Buyer is specifically drawn to the need for care in the handling of the goods. In particular the attention of the Buyer is drawn to the provisions of Section 6 of the Health and Safety at Work etc. Act 1974, as amended. The Buyer shall indemnify and keep indemnified the Seller in respect of any liability, monetary penalty or fine in respect of its failure to comply with any obligations imposed upon the Buyer in connection with the Goods pursuant to these Terms and Conditions or otherwise.
4.12 For Goods specified in the Contract as supplied to British and European Standards, evaluation of conformity of the Goods with such standards, including any sampling and testing, shall be carried out in accordance with the relevant provisions applicable to construction and decorative aggregates as amended, and as notified by the Seller to the Buyer.
5. PRICE OF THE GOODS
5.1 The price of the Goods shall be the price quoted by the Seller. Where no price has been quoted by the Seller, deliveries will be made at the Seller's prices ruling at the date of delivery or collection (as appropriate). Subject to price increases in the interim period, where additional goods are ordered by the Buyer and accepted by the Seller in accordance with these Conditions, the price of the Goods shall be calculated pro-rata against the original main price as quoted in accordance with this Condition 5.1;
5.2 Should an incorrect price be displayed, the Seller reserves the right to refuse orders as set out in Clause 4 in relation to Orders (above);
5.3 All prices quoted by the Seller are only valid at the date of contract and are exclusive of any other matters unless otherwise agreed;
5.4 All quotations and estimates issued by the Seller, are, except where expressly stated otherwise, subject to variation on or after acceptance;
5.5 The Seller reserves the right to revise the quoted price in the event of unforeseen and extraordinary expenses for the Seller appertaining the goods;
5.6 All prices stated are subject to VAT at the applicable rate, with the exception of prices on the Seller’s website which are listed inclusive of VAT at the applicable rate. Without prejudice to the generality of the foregoing, any change in the applicable rate of VAT or any other Government tax or levy shall be to the Buyers account;
5.7 Except where delivery takes place at the Seller's premises, all prices quoted by the Seller include the Seller's charges for transport, insurance and packaging, any non-returnable Containers;
5.8 Pro-Forma Invoices are valid for 30 days from the date stated on the invoice.If cost prices change, that invoice may become void;
6.1 The Seller will make every effort to deliver goods on the agreed contractual date;the actual time of delivery can take up to 7 working days to arrive from time of order and payment received. Any time period or date for delivery stated in the Contract is an estimate only and the Seller shall not be liable for any damages or losses (including as a result of negligence) arising out of failure to meet such time, period or date in respect of the whole or any part of the good ordered arising from any cause whatsoever.
6.2 The parties shall agree the location for delivery of the Goods. Failing agreement delivery of the Goods shall be at the Seller's premises;
6.3 The Seller will not accept any liability for late delivery of the goods and delivery time will not be of the essence of the contract;
6.4 The Seller will not accept liability for non-delivery, where this is caused by circumstances beyond its control;
6.5 Delivery is deemed to be successful once the goods have arrived at the address provided for delivery;
6.6 A signature is required for the proof of delivery document for all goods unless prior arrangements have been specified;
6.7 If a signature is required the Buyer should check the number and condition of cartons whilst inspecting the contents of the goods before signing. Should there be any shortages or damages, these must be notified to the Seller by e-mail:- info@RockinColour.com within 5 days of delivery.Where deliveries are made to public/work places such as hospitals, hotels etc. the signature of any authorized body is deemed to be proof of delivery;
6.8 If the Buyer has requested the goods to be left at the recipients address without a signature and goods are left unsupervised the Seller will not accept liability for the goods. Without a signature the delivery will only be made with prior permission of the Buyer if thedelivery driver considers the delivery point is safe, and the goods are not an obstruction to the highway or access to any other property;
6.9 Where a delivery outside of the Buyer’s normal working hours is requested the Buyer shall accept responsibility for ensuring that a representative of the Buyer is made available to sign any proof of delivery document (“POD”). In the event that a representative is not made available to sign the POD, any requirement for a signed POD shall be automatically waived and payment of invoices shall at no time be conditional on receipt of any POD and will remain due pursuant to terms and conditions.
6.10 Deliveries by the Seller shall be conditional upon access free from encumbrances and good roads being available to the delivery vehicles to the place of delivery. Where the Goods are to be delivered at the Buyer's premises or to such other place as may be agreed between the Seller and the Buyer pursuant to Condition 6.2, in the case of road deliveries, the Buyer shall provide and shall clearly indicate to the Seller or Carrier a route between the metalled highway and the point at which the Buyer wishes the Goods to be discharged which, in the reasonable opinion of the Seller or such Carrier, is safe and proper and reasonable for access, manoeuvring and egress of the delivery vehicle. If, in the Seller's or carrier's reasonable opinion, such access is not available or is unsuitable, the seller reserves the right to refuse to deliver. The Buyer shall be responsible for supervising completion of delivery.
6.11 Deliveries are made using large vehicles and it is the Buyer’s responsibility to inform the company if there may be an access problem. The Seller will confirm the outcome by e-mail. In such cases that delivery, in the opinion of the Seller is not possible, then the company reserves the right to cancel the order. This above action must be completed before 2.00 pm on the day prior to delivery. E-mail confirmation of orders also request the Buyer to contact the Seller if a delivery problem may occur;
6.12 Delivery vehicles use tail-lift offloading, and it must be emphasized that the delivery vehicle must be able to park in an area where the delivery is to be made. A pallet truck is then used to manoeuvre the Goods off the tail lift to the kerbside delivery point. This must be on flat/level ground. The Buyer, or somebody appointed by the Buyer, should be at the delivery point to accept the delivery.
6.13 The Buyer indemnifies the Seller (both for itself and as agent and trustee for any Carrier) against all losses, costs, proceedings, claims, demands and expenses incurred by it or by any such Carrier as a result of failure to provide such convenient and safe access or discharge point and/or properly supervised delivery as aforesaid.
6.14 The Buyer shall reimburse the Seller (both for itself and as agent and trustee for any Carrier) for all costs and expenses incurred by the Seller as a result of the Seller or Carrier being prevented from or delayed in making any delivery resulting from the acts or omissions of the Buyer or any of its employees, agents or sub-contractors. If the Buyer cancels or postpones its order, the Seller shall be entitled to recover all costs accrued and/or incurred up to the date upon which the Seller receives notice of such cancellation. If the Seller, or its agent cannot gain access to the delivery address then additional costs may be incurred. In the case of a delivery being refused or aborted at the delivery address, the Seller reserves the right to charge for a second delivery as the FREE DELIVERY obligation only applies to the first delivery attempt.
6.15 Where the Goods are to be delivered in instalments a failure by the Seller to deliver any one or more (but not all) of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more (but not all) instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.16 The Buyer must satisfy himself itself as to the condition of the Goods at the time of delivery and the Goods must be inspected and accepted in writing by the Buyer or Buyer's representative at the time of delivery. Once delivered the responsibility for the Goods is deemed to be the Buyer’s and any loss or damage to the product is then at the risk of the Buyer as outlined at Clause 10 of these terms and conditions.
6.17 The Seller's liability in respect of short weight or measures of Goods supplied shall be limited to the delivery of an additional supply of the Goods in accordance with these Conditions to make up the short weight or measure. The Seller shall have no liability in respect of the short weight or measure if notification is given later than 24 hours after delivery of the Goods.
6.18 Save where otherwise agreed in writing by the Seller, the Buyer may not re-direct delivery of the Goods or of any instalment of the Goods.
6.19 In the event that the Buyer requests that any Goods be deposited on a street, public highway and/or public footpath the Buyer shall be responsible for compliance with all statutes and regulations relating to public highways and byways including, without limitation, obtaining all necessary licences and/or orders, and for all steps which need to be taken for the protection at all times of persons or property and shall indemnify the Seller in respect of all costs, claims, losses or expenses (including legal costs) on an indemnity basis (other than in respect of death and personal injury caused by (in the case of an English or Northern Irish Contract) the negligence or (in the case of a Scottish Contract) breach of duty (as defined in Section 25 of UCTA) of the Seller or its Carrier) which the Seller may incur as result of a breach of this Condition by the Buyer.
6.20 The Seller delivers to N.Ireland, the Republic of Ireland, and mainland Europe. The Seller does not deliver in England, Wales and Scotland. For stockists in England, Wales and Scotland please contact the Seller.
7. CANCELLATION/RETURNS POLICY
7.1 The Buyer has the right to cancel their order, however if it has already been dispatched or if the Buyer wishes to return this due to access conditions being unsuitable for pallet deliveries then there will be a £50 per pallet charge + any zonal charges that falls on the Buyer.
7.2 If the Buyer wishes to cancel then they will only receive a refund of the cost of the product back. The product should be returned at the Buyer’s own cost within 14 days and the Seller will supply alabel for this. If the product is cancelled before being dispatched then there will be a £25 charge to cover the administration fee as well as the cost of refunding money back onto a card.
7.3 If a delivery cannot be made on the day requested due to access issues or unforeseen circumstances the Seller will attempt a re-delivery at the Buyer’s request on a specific day for a charge of £15.00 per pallet.
7.4 Cancellations are not accepted by telephone and must be sent by email to info@RockinColour.com
7.5 The Buyer is liable for all return shipping costs under this right; please contact the Seller for information to exercise this right.
7.6 Perishable goods are excluded from cancellation under The Consumer Protection (Distance Selling) Regulations 2000 as amended by S1689, 2005.
7.7 Any item that arrives damaged will be collected and replaced within a reasonable period of time (the Seller strives to ensure for next day delivery and replacement for many items although this cannot be guaranteed). All damages or defects must be reported within 5 days from the date of delivery
7.8 All returned / exchanged products (including the boxes) must be in their original condition and they must be in their original packaging. It is not permitted to tape up, or write on boxes. They must also be suitably packaged for transit by the Seller.
7.9 Buyers are advised to obtain and complete a 'certificate of postage' form stamped by the Royal Mail before returning item. Responsibility of the goods remains that of the Buyer until safely received. RockinColour Ltd accepts no liability for goods lost in transit back to their warehouse.
8. RETAIL CLIENTS
The following clause applies only in respect of retail clients:
8.1 This paragraph applies to Buyers who purchase as retailers for onward sale in their retail outlets to the public referred to henceforth as ‘Retailers’. Such Retailers shall be bound by the entirety of these Terms and Conditions including this condition 8. Non-retail Buyers will not be bound by this paragraph.
8.2 Retailers shall sell the product in strict compliance with the directions of the Seller set out below:-
(a) The product shall be sold in the packaging provided by the Seller and the labelling on the packaging shall be clearly visible. The information contained in that label reads as follows:
RockinColour™ is a coloured coated stone, ideal for decorative features, plant pot topping and as a colourful background when laid among plants.
RockinColourTM is not suitable for driveways or any other trafficked areas.
As with most decorative architectural products, the colour and finish of RockinColourTM will alter over time due to weathering and wear. A biennial top up is recommended. Not Suitable for aquarium use.
Please refer to our Technical Leaflet in the download section of our website to view the impact on the stone colour and finish after extended exposure to UV (tests to relevant ISO standards). www.rockincolour.com.
(b) All customers must be referred to the standard advice contained within the Seller’s website. The website describes in detail the nature and characteristics of the products. The product is not to be sold by the Retail Buyer for any purpose other than that described on the Seller’s website.
(c) Enquiries as to the nature of the product and suitability of the product for any purposes are to be dealt with firstly by reference to the advice contained in Seller’s website. Any queries which are not satisfied and replied to in full by such referral must be directed unto the Seller’s sales advisers.
(d) If the Retailer fails to comply with the Seller’s directions above, then the Retailerwill be responsible in full for any liability arising from the failure to sell the product in the manner required herein by the seller.
(e) Products are occasionally sold to Retailers in bulk bags which do not have the normal labelling process. If a Retailer wishes to purchase by way of bulk bags the Retailer must ensure that the information contained in the label, set out in paragraph (a) above is communicated to the customer. The Retailer must ensure that the unlabelled Bulk Bag is sold as a single sale product only and is not broken down for sale in smaller amounts in unlabelled bags.
9. TERMS OF PAYMENT
9.1 Payment is due before delivery if required by the Seller at the time of entering into the Contract. In all other cases, payment shall be made within 30 days following the end of the month of invoice, but if default is made in the payment of any one invoice, these credit terms shall cease to apply and the Buyer will become immediately liable for all sums outstanding.
9.2 Where the Seller has not required payment before delivery in accordance with Condition 9.1 and the Buyer fails to collect or accept delivery of the Goods (as appropriate) in accordance with these Conditions the Seller shall be entitled to invoice the Buyer for the price of the Goods at any time after such failure to collect or accept delivery (as appropriate).
9.3 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:
9.3.1 Cancel the Contract or suspend any further deliveries to the Buyer; and
9.3.2 Charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 4% per annum above Barclays Bank PLC's base rate from time to time until payment in full is made.
9.4 The Buyer shall not be entitled to make any deduction from, set-off, or retention of, the amounts due under the Contract unless the Buyer has a valid court order requiring an amount equal to such deduction, set-off or retention to be paid by the Seller to the Buyer.
9.5 The Seller shall be entitled to appropriate any payment made by the Buyer to the Seller to such of the Goods as the Seller thinks fit despite any purported appropriation by the Buyer including, but not limited to, any goods which have been supplied by the Seller to the Buyer under any contract between the Seller and the Buyer.
10. RISK AND PROPERTY
10.1 Title in the Goods shall not pass to the Buyer until the price of the Goods and every other sum due from the Buyer to the Seller (whether under the Contract or otherwise) has been paid in full and until such payment, the Seller shall be entitled to enter the Buyer's premises to recover the Goods.
10.2 Until Property in the Goods passes to the Buyer, the Buyer shall store the Goods separately from any other goods and identify them as belonging to the Seller.
10.3 Risk of damage to or loss of the Goods shall pass to the Buyer:
10.3.1 in the case of Goods to be delivered at the Seller's premises where the Seller is responsible for loading, at the moment of loading at the delivery point on the Seller’s premises onto the vehicle or into the skip in which the Buyer, its employees, agents or sub-contractors collect the Goods; or
10.3.2 in the case of Goods to be delivered otherwise than at the Seller's premises where the Seller is responsible for unloading, at the moment of completion of unloading from the Seller's or Carrier's vehicle at the delivery point identified by the Buyer in accordance with these Conditions;
10.3.3 in the case of Goods to be delivered otherwise than at the Seller’s premises where the Seller is not responsible for unloading at the moment of arrival of the Seller’s or the Seller’s Carriers vehicle at the delivery point identified by the Buyer in accordance with these Conditions.
11. BUYER’S REMEDY
11.1 If the Buyer can establish to the reasonable satisfaction of the Seller that:-
a) there is a defect in the workmanship of the Seller in relation to the Goods; or
b) there is a defect in the design of the Goods in circumstances where the Seller has designed the Goods; or
c) the Goods are not in accordance with the quality or specification contained in the Contract; or
d) there is some other failure by the Seller in relation to the Goods to comply with the Contract;
then; subject to contract and to the remaining provisions of these terms and conditions in their entirety in particular clause 12 and 13 hereafter, the Seller shall at its sole discretion supply to the Buyer additional replacement goods in the same quantity as the defective or non-compliant Goods and which in all respects are in accordance with the Contract or refund all or part (as appropriate) of the price of the relevant Goods.
11.2 This clause 11 is subject to the following limitations:
11.2.1 A remedy shall not apply unless the Buyer notifies the Seller in writing of the alleged defect or failure immediately upon its first becoming aware thereof and in any event within 7 days of the date of delivery of the Goods or, where the defect or failure was not apparent on reasonable inspection, within 7 days after the earlier of the discovery of the defect or failure by the Buyer, its employees, agents or sub-contractors or the time when the defect or failure ought reasonably to have been discovered by the Buyer, its employees, agents or sub-contractors;
11.2.2. The Seller will accept no responsibility for faults in or failure of the Goods due to placing adopted by the Buyer, or the effects of frost, heat or inclement weather;
11.2.3 The Seller accepts no liability for, nor shall they be liable to refund the price of goods, or provide a replacement in respect of any complaint in respect of the effect of exposure to natural weather elements on the product; as per the terms of the product disclaimer at Clause 12 herein; this is a coloured stone product and natural colour fade is expected over time due to weather conditions;
11.2.4 The Seller accepts no liability for any defects in respect of any other issue notified to the Client in advance of contract in respect of the durability of the product in terms of the product disclaimer, as at Clause 12 of the terms and conditions herein.
11.2.5 The Seller will accept no responsibility if the defect or failure in respect of the Goods results from incorrect specification or other data supplied by the Buyer to the Seller;
11.2.6 Save in respect of death or personal injury caused by the negligence or breach of duty of the Seller, the Seller shall have no liability whatsoever, whether in contract, tort or delict (including negligence) or otherwise for the presence of any lignite or other deleterious material in any of the aggregates contained in the Goods.
11.3 The Buyer shall provide to the Seller, its employees and agents (together with such vehicles, plant and equipment as the Seller shall deem necessary) safe and unrestricted access together with such other facilities and information as the Seller may reasonably require to enable it to ascertain or verify the nature and cause of the alleged defect or failure.PROVIDED ALWAYS THAT the Seller shall be under no obligation whatsoever to refund the price of, or supply any additional goods in respect of, any Goods which are removed by the Buyer without the Seller's prior written consent or where the Seller has not been given proper opportunity to verify the cause of the alleged defect in accordance with this Condition.
11.4 The Seller shall be under no obligation whatsoever to refund the price of the Goods or supply any additional goods to the Buyer where the alleged defect or failure results from incorrect installation or handling, alteration without consent, wear and tear, accident, failure to observe the sampling or testing procedures, abnormal or improper conditions of storage or use or any act, neglect or default (including negligence),by and of the Buyer or any third party.
11.5 Subject to conditions abovementioned additional goods supplied shall be delivered to the Buyer at the address at which the defective Goods were located.
12. PRODUCT DISCLAIMER
12.1 With reference to the conditions contained herein the Seller does not make or give, and shall not be deemed to make or give, any representation, undertaking, warranty, covenant or other commitment, whether express or implied and whether statutory or otherwise, as to;
12.1.1The quality, viability, value, durability and condition of the Goods;
12.1.2 The description of, or the fitness for any particular or general use or purpose of, the Goods; or
12.1.4The design or operation of the Goods; or
12.1.5 The absence from the Goods of any latent or other defect, discoverable or otherwise.
12.2 With regards to the use of Goods purchased via the website www.RockinColour.com the following express reservations are made by the Seller in respect of the decorative stone aggregates known as ‘RockinColour’ and ‘RockinNature’ as a result of extensive testing:
12.2.1 RockinColour™ is not suitable for drive ways or any other trafficked areas. If used for path ways, a higher level of wear and more frequent topping up can be expected.
12.2.2 As RockinColour™ is an outdoor decorative coloured stone, some colour fade and chipping is to be expected over timegiven that the product shall be exposed to wear, the elements and UV Light.
12.2.3 TheSeller recommends annual to biennial top ups to keep the RockinColour™display fresh, and to maintain bright colour throughout the year.
12.2.4 RockinColour™ is tested as safe for pets, however it has not been designed for use in aquariums and it is not recommended for use either in indoor or outdoor aquariums.
12.2.5 As ‘RockinColour™’ is a colour coated stone it is not suitable for driveways or any other trafficked area, including footpaths. If used for footpaths or other applications where it will be walked on/and or receive any kind of traffic, frequent topping up should be expected.
12.2.6 The Seller also supplies natural stone branded as ‘RockinNature™’. This is a quarried natural product with all the implications that may include in variations in colour, shape, gradation and size. It is not free from dust & requires washing after it is laid. Some pictures provided on the website are of wet stone; there may be a variation in appearance in stones when wet or dry. As with all natural stone it can break down and some chipping can occur due to time, wear and exposure to the elements. To keep the stoned/gravelled area in good condition it is recommended for a Buyer to top up the stone from time to time. As this is a natural stone, some dirt is to be expected amongst the stone, which can be remedied by washing with water.
12.2.7 The size of decorate aggregates should be considered where young children are present. Smaller sizes are not suitable for children under 36 months as this product may cause a choking hazard.
13. THE SELLER'S LIABILITY
13.1 The Liability accepted by the Seller under these terms and conditions shall be in substitution of any other legal remedy of the buyer in respect of any alleged defectin relation to the goods or failure of the goods to comply with the specification or quality contained in the contract and any other conditions, warranties, representation or undertaking on the part of the Seller as to the quality of the goods or their fitness or suitability for any purpose howsoever and whenever expressed which may be implied by statute custom of the trade or otherwise are hereby excluded and the provisions of Sections 13 to 15 inclusive of the Sale of Goods Act 1979 (as amended) shall not apply to the contract;
13.2 The liability of the seller whether in contract or in tort or delict arising out of or in connection with any act, omission, neglect or default of the seller, its employees, agents or subcontractors in connection with the contract (including, without limiting the generality of the foregoing for negligence, breach of any condition or warranty whether express or implied by statute, common law or otherwise howsoever) shall be limited to the refund of the price of the goods or the supply of additional goods pursuant to the guarantee;
13.4 The Seller shall not be liable to the Buyer in contract, tort or delict (including negligence) or for breach of statutory duty for any loss of profit, loss of income, loss of revenue, loss of goodwill, loss of anticipated savings, loss of data, loss of opportunity or losses calculated by reference to profits, income, business, revenue, goodwill, anticipated savings, data or opportunity (in all cases whether direct or indirect), any loss or damages connected to the use of the Seller’s website or linked websites (whether direct or indirect) including but not limited to any harm caused to the Buyer’s computer equipment or software, data or other property on account of use of the website, or any other indirect, consequential or economic loss of any kind whatsoever which the Buyer may suffer or incur by reason of any act, omission, neglect or default (including negligence) in connection with the contract by the Seller, its employees or agents.
13.5 Nothing in these conditions shall:
13.5.1 Limit or exclude the liability of the seller for death or personal injury resulting from the negligence or breach of duty (as defined in section 25 of UCTA) of the Seller, its employees or agents;
13.5.2 Limit or exclude the liability of the seller for fraudulent misrepresentation; or
13.5.3 Exclude the conditions and warranties implied by section 12 of the sale of goods act 1979 (asamended).
13.6 The Seller shall not be liable to the Buyer in any manner or be deemed to be in breach of the Contract because of any delay in performing or any failure to perform any of the Seller's obligations under the Contract if the delay or failure was due to any cause beyond the Seller's reasonable control (“force majeure condition”).
13.7 Without prejudice to the generality of Condition 13.6 force majeure conditions shall include: governmental actions, war or threat of war, national emergency, riot, civil disturbance,
malicious damage, sabotage, insurrection or requisition; act of God, fire, explosion, flood, tempest, epidemic or accident; import or export regulations or embargoes or compliance with any governmental, parliamentary or local authority order, rule, regulation, direction or bye-law; strikes, lock outs or other industrial actions or trade or labour disputes (including actions or disputes involving the Seller's workforce); inability to obtain or delay in obtaining supplies of adequate or suitable material, fuel, parts, machinery or labour; or power failure or breakdown in machinery, including but without limitation, failure of railways, track or rail wagons.
13.8 Without prejudice to any of these Conditions or any other terms set out in the Contract, the Seller shall not be liable to the Buyer in any manner or deemed to be in breach of the Contract because of any delay in performing or failure to perform any of the Seller’s obligations under the Contract if the delay or failure was due to any cause beyond the Seller’s control relating to the Games.
13.9 The Seller undertakes to make every reasonable endeavour to overcome difficulties arising from a force majeure condition provided always that the Seller shall not be obliged to purchase the Goods from third parties.
14 INTELLECTUAL PROPERTY
14.1 It is permitted to print and download extracts from the Sellers Website for use on the following basis only:
a) No documents or related graphics on this Website shall be modified in any way;
b) No graphics on this Website are to be used separately from accompanying text.
14.2 Unless otherwise stated, the copyright and other intellectual property rights in all material on this Website (including without limitation photographs and graphical images) are owned by us or our licensors. For the purposes of these terms and conditions, any use of extracts from this Website other than in accordance with that stated above for any purpose is prohibited. Should a breach of any of the terms in these terms and conditions occur, permission to use the Seller’s Website shall automatically terminate and the user must immediately destroy any downloaded or printed extracts from this Website. No part of this Website may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service without our prior written permission.
14.3 Any rights not expressly granted in these terms are reserved.
15. SERVICE ACCESS
While the Seller endeavours to ensure that the Website is normally available 24 hours a day, they shall not be liable if for any reason this Website is unavailable at any time or for any period. Access to this Website may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond the control of the Seller.
16 WEBSITE DISCLAIMER
16.1 While the Seller endeavours to ensure that the information on their Website is correct, they cannot warrant the accuracy and completeness of material on the Website.
16.2 The Seller reserves the right make changes to the material on this Website, or to the Goods and prices described in it, at any time without notice. The material on the Seller’s Website may not be at all current times up to date, and the Seller makes no commitment to update such material to any specific date. Should the Buyer’s use of the website result in the need for servicing repair, or correction of equipment, software or date the Buyer shall assume and be responsible for all costs thereof.
17. INSOLVENCY AND BREACH OF CONTRACT OF BUYER
17.1 This Condition applies if the Buyer commits any breach of the Contract or of any other contract between the Buyer and the Seller or between the Buyer and any company within the same group of companies of which the Seller is a member; or the Buyer has a bankruptcy order made against him or makes any voluntary arrangement or composition with his creditors or otherwise takes the benefit of any statute for the time being in force for the relief of insolvent debtors (or being a company or body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of a reconstruction or amalgamation, or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or an encumbrancer takes possession or a manager, administrator, receiver or administrative receiver is appointed over any of the property, undertaking or assets of the Buyer (or part thereof); or the Buyer ceases or threatens to cease to carry on business; or if any distraint, lien, hypothec, execution (whether legal or equitable) or other process is levied or enforced on any property of the Buyer and is not paid out, withdrawn or discharged within 21 days; or the Buyer is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986: or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
17.2 In the event of the insolvency or breach of contract of the Buyer then without prejudice to any other right or remedy available to the Seller, the Seller 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 price shall become immediately due and payable despite any previous agreement or arrangement to the contrary.
Any Containers used for delivery remain the property of the Seller at all times; the Buyer shall remunerate the Seller for any loss or damage thereto for which they are responsible.
19. SET OFF
19.1 The Buyer undertakes to pay any sum due to the Seller in full without any deduction, offset or counterclaim whatsoever save in respect of any credit note issued to the Buyer by the Seller.
19.2 The Seller shall be entitled to set off against any sum due from the Seller to the Buyer on any account whatsoever any sum owed to the Seller whether or not the same shall have become due for payment and any claim or counterclaim, which the Seller may have against the Buyer whether liquidated or unliquidated and whether jointly or otherwise.
19.3 In this clause 19 ‘Seller’ and ‘Buyer’ includes any company within the same corporate group and all subsidiaries of the ultimate holding company of the Buyer or the Seller as the case may be.
19.4 These terms are in addition to rights of set off at common law or in equity.
20. GOVERNING LAW AND JURISDICTION
These terms and conditions shall be governed by and construed in accordance with the laws of Northern Ireland. Disputes arising in connection with these terms and conditions shall be subject to the exclusive jurisdiction of the Northern Irish courts.
21.1 All notices between the parties in respect of the Contract must be in writing and delivered by hand, sent by first class pre-paid post, sent by facsimile transmission or sent by e-mail (in the case of notices to the Seller) to the Seller's address, facsimile number or e-mail address shown on the Seller’s quotation, or as notified in writing by the Seller from time to time or (in the case of notices to the Buyer) to its registered office (if it is a company) or (in any other case) to the last known address of the Buyer or such address, facsimile number or e-mail address as shall be notified in writing to the Seller by the Buyer for this purpose.
21.2 Notices shall be deemed to have been received 48 hours after posting (exclusive of the day of posting) if sent by first class post; on the day of delivery, if delivered by hand; or at the time of transmission, if sent by facsimile or by e-mail, provided that a confirming copy is sent by first class pre-paid post to the other party within 24 hours after transmission.
21.3 No waiver by the Seller of any breach of any provision of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
21.4 Any provision of the Contract which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of the Contract and the remainder of such provision shall not be affected.
21.5 The Buyer shall not assign, sub-contract or otherwise transfer all or any of its rights, interests or obligations under the Contract without the prior written consent of the Seller. Any or all of the Seller's rights or obligations under the Contract may be assigned or sub-contracted by the Seller.
21.6 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 (in the case of an English or Northern Irish Contract) or create a iusquaesitumtertio in any person (in the case of a Scottish Contract).
21.7 ‘RockinColour’ and the ‘RockinColour’ logo are registered trademarks. The Buyer shall not use the RockinColour logo or any other trade mark (registered or otherwise) belonging to RockinColour™ or to any of its group companies without the prior written consent of the relevant owning company of such trade mark. Any written consent given shall be deemed to be under licence which may be terminated at any time by giving prior written notice to the Buyer
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