Terms and Conditions of Sale
1.1 The definitions in this Condition apply in this document.
Business Day: Any day other than a Saturday or Sunday or a public or bank holiday in England.
Company: British Ceramic Tile Limited (company number 03244910) whose registered office is at Heathfield, Devon, TQ12 6RF.
Contract: Any contract between the Company and the Customer for the sale and purchase of the Goods.
Customer: The person, firm or company who purchases the Goods from the Company.
Force Majeure: Any cause preventing the Company from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable contemplation and control of the Company including, without limitation, strikes, lockouts or other industrial disputes (whether involving the work force of the Company or otherwise), protest, act of God, war or national emergency, an act of 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.
Goods: Any goods which the Company supplies to the Customer (including any of them or any part of them) under a Contract.
Intellectual Property: Copyright, designs, patents, trademarks and all other intellectual property rights, whether registerable or not.
Terms and Conditions: The standard terms and conditions of sale set out in this document together with any special terms agreed in writing between the Customer and the Company.
1.2 The headings in these Terms and Conditions are for convenience only and will not affect their construction or interpretation.
2. APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.2 the Contract shall be subject to the Terms and Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 These Terms and Conditions apply to all the Company's sales and any variation to these Terms and Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.3 Acceptance of delivery of the Goods will be deemed conclusive evidence of the Customer’s acceptance of these Terms and Conditions.
2.4 The Company may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.
2.5 The Contract is personal to the Customer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Company’s prior written consent.
3.1 All orders shall be subject to the availability of the required Goods and the Customer’s acceptance of these Terms and Conditions.
3.2 The minimum order value is £100 plus VAT and may be subject to change in the future.
3.3 All orders shall be placed by the Customer in writing or via telephone and an order number or name in full of the person placing the order must be given. The Customer is responsible for checking all order confirmations issued to them.
3.4 Each order for Goods will be deemed to be a separate offer by the Customer to purchase Goods upon these Terms and Conditions which the Company shall be free to accept or decline at its absolute discretion. Notwithstanding any other provision of these Terms and Conditions, the Contract shall be formed when the order is accepted by the Company by the issue of a sales order confirmation.
3.5 Orders must be placed and have been accepted by the Company no later than 5pm three days prior to the agreed delivery day otherwise delivery cannot be guaranteed. The Customer has the earlier of thirty minutes from confirmation of the Company's acceptance of the order or 5pm on that day to cancel an order on standard delivery only. Outside of this time frame and for any other cancellation the Company must confirm its acceptance of cancellation in writing, in order for cancellation of the order to take effect. Requests for cancellation must be accompanied by the sales order confirmation number. Orders in respect of Goods which are out of stock (Out of Stock Orders) may be placed conditional to availability and the Customer acknowledges that estimated dates of availability may be changed without notice and are not binding. Unless expressly confirmed in writing by the Company in advance (and subject to Condition 3.6 below), the Company shall have no liability to fulfill or otherwise perform Out of Stock Orders. Forward orders may be accepted under conditions presented in the sales policy at the time of sales order confirmation.
3.6 Out of Stock Orders will only be accepted on payment in full in advance or on receipt of an agreed deposit.
3.7 The Customer should order the correct quantity of the Goods required at any one time as the Company cannot guarantee to repeat the same shade. Shade variation is an inherent characteristic within the manufacture of tiles. The Company will not be responsible for any shade variation in the Goods.
3.8 The Company will not accept any claims whatsoever if the Goods have been fixed. All Goods should be checked for shade, texture and size at the time of delivery.
3.9 The Customer acknowledges that it shall be a condition of the Contract that the Customer shall not, without holding reasonable levels of stock of such Goods, advertise for sale (on-line or otherwise) any of the Goods supplied to it by the Company under the Contract.
3.10 The Customer further acknowledges that it shall, in a timely manner, comply with any direction of the Company to ensure compliance with (or otherwise rectify any breach of) Condition 3.9 above.
4.1 Delivery of the Goods shall take place and shall be completed on the Goods' arrival at the Customer's place of business or to a branch of the Customer agreed with the Company in advance.
4.2 Delivery by the Company cannot be made direct to a building site (or any third party destination) unless previously agreed in writing by the Company and delivery to such a location may be subject to additional carriage costs being payable by the Customer.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be indicative only and are conditional upon the Company being able to secure the necessary Goods, labour and materials.
4.4 Time of delivery shall not be of the essence. If no delivery dates are specified, delivery shall be within a reasonable time of the Company's acceptance of the order in accordance with Condition 3.4.
4.5 The Company may deliver the Goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with the provisions of the Contract. Each instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment will entitle the Customer to repudiate or cancel any other Contract relating to an instalment.
4.6 When delivery is made to the address on the sales order confirmation and delivery cannot be completed through non-attendance of the Customer or for any other reason, the Customer agrees that re-delivery will be at the Customer’s sole expense.
5.1 Conditions 5.2 to 5.8 inclusive shall apply to all Goods supplied under the Contract including goods for resale, samples, sample boards and display stands whether invoiced for or supplied on a free of charge loan basis.
5.2 Risk in the Goods shall pass to the Customer from the time of commencement of delivery of the Goods or, as the case may be, from the time the Customer commences collection of the Goods from the Company’s premises.
5.3 Title in the Goods shall not pass to the Customer until the Company has received in full (in cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Customer on any account.
5.4 Until title in the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Company's bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.
5.5 The Customer may resell the Goods before title therein has passed to it solely on the following conditions:
(a) any sale will be effected in the ordinary course of the Customer’s business at full market value and the Customer will account to the Company accordingly as its fiduciary for the proceeds of such sale up to the value of the price for the Goods, as agreed under the Contract; and (b) any such sale will be a sale of the Company’s property on the Customer’s own behalf and the Customer will deal as principal when making such a sale.
5.6 The Company shall be entitled to recover payment for the Goods from the Customer notwithstanding that ownership of any of the Goods has not passed from the Company.
5.7 The Customer grants the Company, its agents and employees, an irrevocable licence at any time (with or without vehicles) to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer's right to possession has terminated, to recover them.
5.8 On termination of the Contract, howsoever caused, the Company's (but not the Customer's) rights contained in this Condition 5 shall remain in effect.
6.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the relevant price set out in the Company's published price list at the date on which the order is accepted in accordance with Condition 3.4 (the List Price).
6.2 The List Prices are clearly set out in the published price list. If, in error, the Company has under priced a Good, it will not be liable to supply that Good to the Customer at the incorrect price. The Company does not accept responsibility for errors and omissions within any published price list.
6.3 Prices are subject to alteration without notice.
6.4 The price for the Goods shall be exclusive of any value added tax which shall be payable by the Customer at the then applicable rate.
6.5 The price quoted for the Goods shall be inclusive of delivery costs provided that any minimum order values have been met except when the Goods are dispatched at the request of the Customer by passenger train, road parcel service or parcel post – in which case the price for the Goods shall be exclusive of packing and delivery which shall be payable in addition. For the avoidance of doubt, additional delivery charges may be payable by the Customer in accordance with Conditions 4.2 and 4.6.
6.6 Where the Company agrees to provide Display Stands, Sample Boards or Associated material, these will be supplied at a pre-agreed price. Display Stands will remain the property of the Company at all times.
6.7 The Company may from time to time recommend a resale price but this is not binding on the Customer and is for guidance only.
7 CREDIT AND PAYMENT
7.1 Subject to condition 7.6, where the Company has agreed to grant the Customer credit facilities, unless otherwise agreed in writing, payment in full is due 30 (thirty) days from the end of the month in which the invoice is dated and should be made to British Ceramic Tile Ltd, Heathfield, Devon TQ12 6RF. The Company reserves the right at any time and without explanation to withhold credit facilities and/or to limit the amount or period of credit to any Customer or to stop deliveries in the event of non-payment of any outstanding amount without prejudice to the Company rights.
7.2 Time of payment shall be of the essence.
7.3 No payment shall be deemed to have been received until the Company has received cleared funds.
7.4 The Company may invoice the Customer for the Goods at any time from the commencement of delivery and subject to Condition 7.6.
7.5 All sums payable to the Company under the Contract will become due immediately upon termination of the Contract.
7.6 If any sum payable under the Contract is not paid when due then, without prejudice to the Company’s other rights under the Contract, the Company shall be entitled to:
(a) charge interest on overdue balances at the rate of 3% (three per cent) above Bank of England's base rate from time to time in addition to any administration costs or legal costs incurred during the collection process; and/or
(b) suspend or cancel any ongoing provision of the Goods, and/or suspend or cancel performance of any other contract with the Customer, until the outstanding amount has been received by the Company from the Customer in cleared funds.
8.1 No tiles are guaranteed against crazing or variation from samples and/or descriptions given by the Company or its representatives. Crazing is an inherent characteristic within the manufacture of tiles. Due to natural variations in natural products and in production batches, exact matches cannot be guaranteed. Samples and sample boards are intended to be average representations of the product only. Photographical images may not accurately reproduce the exact shade of the product. If this is important, then Customers are advised to order samples. To the maximum extent permitted by law, the Company shall have no liability in respect of any Goods after they have been fixed. The pigments of coloured grouts may penetrate the surface of some products, but this does not constitute product failure. Sufficient test product should be purchased to ensure the desired effect can be achieved. Where the product has been sold with a known defect the product will only be considered for quality issues excluding any consideration of the known defect.
8.2 Subject to condition 8.1 the Company warrants that (subject to the other provisions of the Contract) on completion of delivery the Goods shall:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
(b) be reasonably fit for purpose.
8.3 The Company shall not be liable for a breach of any of the warranties in Condition 8.2 unless the Customer gives written notice of rejection to the Company, in the case of a defect that is apparent on normal visual inspection (including breakages) within twenty-four (24) hours of delivery of the Goods in accordance with the Contract and, in the case of a latent defect, within a reasonable time of the latent defect having become apparent.
8.4 If the Customer fails to give notice of rejection in accordance with Condition 8.3, it shall be deemed to have accepted such Goods.
8.5 Subject to Conditions 8.3, 8.4 and 8.7, if any of the Goods do not conform with any of the warranties in Condition 8.2 the Company shall at its option replace such goods (or the defective part) or refund the price of such Goods at the pro rata contract rate provided that, if the Company so requests, the Customer shall (at its sole cost) return the Goods or the part of such Goods which is defective to the Company.
8.6 If the Company complies with Condition 8.5 it shall have no further liability for a breach of any of the warranties in Condition 8.2 in respect of such Goods.
8.7 The Company reserves the right to inspect the Goods in question within ten (10) Business Days of a notification given in accordance with Condition 8.3..
9 INTELLECTUAL PROPERTY RIGHTS AND USE OF SUPPORT MATERIALS AND TRADE MARKS
9.1 All Intellectual Property in the Goods and the Company's websites, technical literature and promotional materials vest in the Company and shall remain at all times the property of the Company. The Customer shall acquire no rights to the Intellectual Property in the Goods or the Company's websites, technical literature and promotional materials, except as may be expressly provided for in these Terms and Conditions.
9.2 Subject to Condition 9.5, the Customer shall not copy, adapt, issue to the public, transfer or transmit any text or photographs from the Company's websites, technical literature or promotional materials without the prior permission in writing of the Company. Any such unauthorised acts by the Customer, or its agent, will terminate any permissions granted.
9.3 Without prejudice to the generality of Conditions 9.1 and 9.2 and subject to Condition 9.5, the Customer shall not use content from the Company's websites, technical literature or its promotional materials and/or make use of any photographs, listings, descriptions, prices, make any derivative or commercially exploitative use of such websites or their content, download or copy account information, use any data mining, robots or similar data gathering and extraction tool without the prior written consent of the Company. Any such unauthorised use will terminate any permissions granted.
9.4 Without prejudice to the generality of this Condition 9, any use by the Customer of any trade marks owned by the Company or any substantially similar sign of the Company, shall be strictly in relation to the Goods and solely for the purpose of fulfilling orders under these Terms and Conditions. Moreover, (and without prejudice to Condition 9.5), any use of the Company's trade marks by the Customer shall be in accordance with the guidance given from time to time by the Company concerning the use of its trade marks, and in particular the means by which to maintain the integrity and cachet image of the Company's trade marks.
9.5 The Customer agrees that prior to any reproduction or use of:
(a) any trade marks owned by the Company;
(b) any substantially similar sign of the Company; or
(c) any content from the Company's website, technical literature or promotional material;
it shall notify the Company of the same in writing (and shall provide accurate and representative samples of such reproduction or use to the Company) and the Customer shall not commence such reproduction or use without the prior written consent of the Company, provided always that if the Company has not expressly objected to such reproduction or use within twenty-eight (28) days of receiving such notification (a Notification Period), the Company shall be deemed to have provided its prior written consent to such reproduction or use with effect from the end of such Notification Period.
10 DATA PROTECTION ACT
The Customer agrees that the Company may transfer information about the Customer to its bankers/financiers for the purposes of providing services and for the following purposes: obtaining credit insurance, making credit reference agency searches, credit control, securitization, assessment and analysis (including credit scoring, market, product and statistical analyses). The Company will provide the Customer with details of any third party to whom the Company has directly transmitted such information on request.
11 LIMITATION OF LIABILITY
11.1 Subject always to the provisions of Condition 11.3:
the Company shall not be liable to the Customer whether in contract, tort (including, without limitation, negligence), breach of statutory duty or otherwise, for the following losses whether direct or indirect:)
(a) loss of profit or anticipated profit;
(b) loss of business or business interruption;
(c) loss of opportunity;
(d) loss of goodwill;
(e) loss of operation time;
(f) wasted expenditure;
(g) management or staff time;
(h) loss of reputation; and/or
(i) loss of data,
or for any indirect or consequential loss or damage whatsoever or howsoever caused or arising, and the Company and the Customer intend that each type of loss under this Condition 11.1 shall be severable in accordance with Condition 15.
11.2 Without prejudice to Conditions 8 and 11.1, but subject to Condition 11.3, the Company's total aggregate liability under the Contract shall not exceed the price paid by the Customer for the Goods in relation to which the claim arose and the Customer shall have a duty to mitigate any loss and/or damage arising from such claim.
11.3 Neither party excludes or limits liability to the other party for death or personal injury caused by its negligence or the negligence of its officers, employees, contractors or agents, for fraud or fraudulent misrepresentation nor where liability cannot be excluded or limited as a matter of law.
Goods are not supplied on a sale or return basis. Where the Company agrees to accept the return of any non-faulty Goods, the Customer may be charged £35 per pallet and a restocking charge of 25% will be applied. A carriage charge at the current rate will may also be applied. The return of non-faulty Goods will not be accepted without prior arrangement with customer services.
13 FORCE MAJEURE
13.1 The Company will be deemed not to be in breach of the Contract or otherwise liable to the Customer in any manner whatsoever for any failure or delay in performing its obligations under the Contract due to Force Majeure, provided that it has and continues to comply with its obligations set out in Condition 13.2.
13.2 If the Company’s performance of its obligations under the Contract is affected by Force Majeure the Company shall have the right to cancel the Contract at any time and will be entitled to be paid by the Customer for costs and expenses incurred by the Company upon cancellation of the Contract and to such further sum as may be a fair and reasonable price for the benefit received by the Customer and the Company will then repay to the Customer any balance which remains on monies paid by the Customer.
14.1 The Company may by notice in writing served on the Customer terminate the Contract immediately if the Customer:
(a) is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Customer fails to remedy such breach within thirty (30) days of service of a written notice from the Company, specifying the breach and requiring it to be remedied. Failure to pay any sums due in accordance with Condition 7 is a material breach of the terms of the Contract which is not capable of remedy;
(b) has entered into any composition or arrangement with its creditors, has a petition presented by it or by any other person for its bankruptcy, has a bankruptcy order made against it, makes a proposal for or has a proposal submitted for or becomes subject to any voluntary arrangement, is unable to pay its debts when they fall due, has a receiver, manager or administrative receiver appointed over any of its assets, undertakings or income, has passed a resolution for or is subject to a petition presented to any Court for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), has a provisional liquidator appointed, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of intention to appoint an administrator given by any person or dies;
(c) has any distrain, execution or other process levied or enforced on any of its property;
(d) ceases to trade or appears in the reasonable opinion of the Company likely or is threatening to cease to trade within thirty (30) days;
(e) has a change in its senior management and/or control as defined by section 416 Income and Corporation Taxes Act 1988; or
(f) the equivalent of any of the above occurs to the Customer under the jurisdiction to which the Customer is subject.
14.2 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities of either the Customer or the Company accrued prior to termination and the conditions of the Contract which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
14.3 The Company will be entitled to suspend any deliveries otherwise due to occur following service of a notice specifying a breach under Condition 14.1(a), until either the breach is remedied or the Contract terminates, whichever occurs first.
In the event of any provision of the Contract being or becoming void or otherwise unenforceable in whole or in part in any relevant jurisdiction then the other provisions of the Contract shall remain fully valid and enforceable where legally permissible and the void or otherwise unenforceable provisions shall be replaced where necessary in accordance with the meaning and purpose of the Contract.
16 GOVERNING LAW AND JURISDICTION
The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract (as well as non-contractual disputes and claims) will be governed by English law. Each party irrevocably agrees, for the sole benefit of the Company that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims). Nothing in this Condition shall limit the right of the Company to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
17.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the subject matter. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract.
17.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
17.3 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company, whether under the Contract or not. No failure or delay by the Company to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
17.4 Except as otherwise provided in these Terms and Conditions or the Contract, a person who is not a party to the Contract will have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms and Conditions or the Contract.