Trading as Direct Tile Importers, Monks Cross Tiles & Bathrooms, Northallerton Tiles & Bathrooms, Leeds Tiles & Bathrooms and Discount Tile Depot
Conditions of Sale for Consumers (2015) Edition
1.1 In these Conditions the following words shall have the following meanings: Buyer the individual who purchases the Goods from the Company Company The Tile Company Limited (CRN: 03812717) or any subsidiary or associated company which supplies Goods to the Buyer Conditions the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in writing between the Company and the Buyer Contract the contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions Goods any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of any order for Goods)
1.2 Words in the singular include the plural and vice versa.
2. Application of Conditions
2.1 These Conditions cancel and supersede any earlier conditions of sale of the Company and shall govern the Contract to the exclusion of any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document, or which are implied by trade, custom, practice or course of dealing, and the Buyer waives any right which it might have to rely on such terms or conditions.
2.2 No variation to these Conditions or any representation about the Goods shall have effect unless expressly agreed in writing and signed by a duly authorised representative of the Company.
2.3 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase the relevant Goods subject to these Conditions.
2.4 No order placed by the Buyer shall be deemed to be accepted by the Company until the Company has confirmed acceptance of the order or (if earlier) the Company delivers the Goods to the Buyer.
2.5 The Buyer shall ensure that the terms of its order and any applicable specification submitted by the Buyer are complete and accurate. The Company shall not be liable to the Buyer if such terms or specification are not complete and accurate.
2.6 Any quotation is given by the Company on the basis that no contract will come into existence until the Company has confirmed acceptance of the Buyer’s order or (if earlier) delivers the Goods. Any quotation is valid for a period of 60 days only from its date, provided that the Company has not previously withdrawn it. The Company may reject an order which is only for part of the Goods the subject of a quotation.
2.7 The Company may notify to the Buyer a credit limit for purchasing Goods from the Company. The Company shall be entitled to change such credit limit or remove the Buyer’s credit terms at any time upon giving notice to the Buyer.
3.1 The description of the Goods shall be as set out in the Company’s quotation.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions, sizes, measurements or illustrations contained in catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and the Company shall be entitled to correct any error without any liability to the Buyer.
3.3 The Company reserves the right to change the specification of the Goods after acceptance of the Buyer’s order provided that such change does not materially alter the characteristics of the Goods.
3.4 The sale of the Goods shall not be a sale by sample.
3.5 In relation to those Goods which are tiles, the Buyer acknowledges and agrees that:
3.5.1 shade, glaze and size variation is an inherent feature in the manufacturing process of ceramic tiles. Therefore the shade, glaze and/or size of any ceramic tiles purchased by the Buyer may differ from any samples previously provided or made available by the Company;
3.5.2 no guarantee can be given, and the Company does not provide any guarantee, against crazing, which is a natural characteristic of ceramic tiles; and
3.5.3 the appearance and finish of tiles made from natural products such as slate, terracotta, limestone, marble and travertine can vary due to the nature of the natural product. Therefore the appearance and finish of any such tiles purchased by the Buyer may differ from any samples previously provided or made available by the Company.
3.6 The Company may provide the Buyer with details of one or more contractors who can install the Goods. The Buyer must make its own arrangements for installation of the Goods with the Buyer’s chosen contractor(s) and is not obliged to engage any contractors whom the Company provides the Buyer with details of. Any contract for installation of the Goods will be between the Buyer the Buyer’s chosen contractor(s). The Company shall not be a party to the contract for installation of the Goods. The Company will use reasonable endeavours to provide the Buyer with details of contractors whom, based on the Company’s experience of them, the Company considers to be competent, and the Company will assist the Buyer’s chosen contractor(s) with any queries raised by such contractor(s) or information reasonably required by such contractor(s) in order to install the Goods, provided that the Company shall not be liable for any actions or omissions of the Buyer’s chosen contractor(s) including any aspect of the workmanship of such contractor(s).
3.7 Before the Buyer places an order for any Goods, the Buyer shall check the suitability for purpose of the relevant Goods and, where the Buyer wishes to order any Goods to be made by the Company to the Buyer’s measurements, ensure that those measurements are correct before providing them to the Company. The Buyer shall verify such matters with an appropriately qualified professional where reasonably required and shall not carry out any preparatory work or engage any installation contractor until the Buyer has received and checked the relevant Goods.
4.1 Unless the Company agrees to deliver the Goods to a location specified by the Buyer in accordance with condition 4.2, delivery of the Goods shall take place when the Goods are made available by the Company at the Company’s place of business for collection by the Buyer. If the Company agrees to deliver the Goods in accordance with condition 4.2, delivery shall take place:
4.1.1 where the Buyer has a fork lift truck on site at the relevant delivery location, when the Buyer has commenced unloading the Goods from the relevant delivery vehicle; and
4.1.2 in all other cases, when the Goods have been unloaded from the relevant delivery vehicle by the Company and made available to the Buyer at ground level outside the front entrance of the relevant delivery location. The Buyer shall be responsible for moving the Goods into the relevant delivery location.
4.2 If the Buyer requests that the Company arranges delivery of the Goods to a location other than the Company’s premises:
4.2.1 the Company shall provide the Buyer with a delivery quotation based on the Buyer’s notified delivery requirements and the Company shall have no liability to deliver the Goods unless the Buyer accepts the Company’s delivery quotation in writing, in which case the Company’s charges for delivery shall be payable in addition to the price of the Goods in accordance with conditions 6.2 and 7.1; and
4.2.2 subject to condition 4.2.1 above, the Buyer shall procure that one of its employees or other representatives is present at the front entrance of the agreed delivery location in order to:
(a) take delivery of the Goods and sign for such delivery; and
(b) conduct an immediate visual inspection of the Goods for any damage,
provided that the Buyer acknowledges that, where the agreed delivery location is within a building shared with other occupants (including but not limited to a block of flats or a shopping centre), for the purposes of this clause 4.2.2 the “front entrance” for such delivery location shall be the ground floor, main entrance to the entire building.
4.3 Any date specified by the Company for delivery of the Goods is an estimate only and time for delivery shall not be made of the essence by notice. Where the Company agrees to change the specification or quantity of Goods ordered, the Company shall be entitled to adjust the delivery date accordingly. If no date for delivery has been so specified, delivery will be within a reasonable time.
4.4 Subject to the other provisions of these Conditions, the Company shall not be liable for any loss (including but not limited to loss of profit and consequential loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods nor will any delay entitle the Buyer to terminate or rescind the Contract.
4.5 The Company may deliver the Goods by separate instalments all goods must be paid for prior to delivery.
4.6 Where the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalment shall not entitle the Buyer to treat the Contract as a whole as repudiated.
4.7 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations or as a result of a breach by the Buyer of clause 4.2.2 above, the price shall become immediately due and payable and risk in the Goods will pass to the Buyer. The Company may store the Goods until actual delivery and the Buyer will be liable for all related costs and expenses (including without limitation demurrage, storage and insurance). Without prejudice to the Company’s right to recover from the Buyer any sums due to the Company, if the Buyer has not collected or taken delivery of the Goods within 14 days from the date upon which the price became due and payable the Company may dispose of the Goods in such manner as the Company may determine.
5. Shortfalls and Non-Delivery
5.1 Where it is agreed between the parties pursuant to condition 4.2 that delivery shall take place at a location other than the buyers address, the quantity of any consignment of the Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery or any shortfall in the delivery of the Goods unless written notice is given to the Company within seven working days of the estimated date of delivery supplied by the Company or actual delivery, as applicable.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.4 Any liability of the Company for any shortfall in the delivery of the Goods shall be limited to making up the shortfall within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 Unless otherwise agreed in writing by the Company the price payable by the Buyer for the Goods shall be the price set out in the Company’s quotation.
6.2 The price for the Goods shall be exclusive of any value added tax and delivery charges (where applicable), which sums the Buyer shall pay at the same time.
6.3 The Company shall be entitled at any time prior to delivery of the Goods to increase the price of the Goods to reflect any increase in the cost of the Goods to the Company after acceptance of the Buyer’s order which is due to factors beyond the Company’s reasonable control including, without limitation, currency exchange rate fluctuations, increases in taxes and duties and any other increase incurred by the Company in respect of the Goods.
6.4 The Company reserves the right to adjust the price of any Goods to reflect any alteration to the specification of the Goods agreed between the Company and the Buyer after acceptance of the Buyer’s order.
7.1 Subject to condition 7.3 and unless otherwise notified in writing by the Company to the Buyer, full payment of the price for Goods and any other charges and sums due under the Contract is due:
where the Buyer has been granted a trading account by the Company, 7 days from the date of the invoice, and
7.1.2 in all other cases, at the time that the Buyer places the relevant order, and in both cases, time for payment shall be of the essence and no payment shall be deemed to have been received until the Company has received cleared funds.
7.2 All sums payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
7.3 Any issues relating to an invoice must be communicated to the Buyer within seven working days of the date of the invoice.
7.4 The Buyer shall make all payments due under the Contract without any deduction by way of set-off, counterclaim, discount, abatement or otherwise.
7.5 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Company shall be entitled to suspend performance of the Company’s obligations under the Contract or under any other contract between the Company and the Buyer and/or charge the Buyer interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Yorkshire Bank plc accruing on a daily basis until payment is made, whether before or after any judgment. Alternatively, the Company shall be entitled to charge the Buyer interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended from time to time. In addition to interest, the Company shall be entitled to recover from the Buyer such legal costs as are incurred in the recovery of sums due and owing to the Company.
7.6 The Company may at any time set off any liability of the Buyer to the Company against any liability of the Company to the Buyer, whether such liability is present or future, liquidated or unliquidated, under the Contract or otherwise.
8. Risk and Ownership
8.1 The Goods shall be at the risk of the Buyer from the time of delivery.
8.2 Ownership of the Goods shall not pass to the Buyer until the earlier of:
8.2.1 the time that the Company has received in full in cash or cleared funds:
(a) all sums payable in respect of the Goods; and
(b) all other sums which are or which become payable to the Company from the Buyer on any account including any interest on such sums;
8.2.2 the time that the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in condition 8.4.
8.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
8.3.1 store the Goods (at no cost to the Company) separately to other goods of the Buyer or any third party in a way that they remain readily identifiable as the Company’s property;
8.3.2 not remove, destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3 maintain the Goods in satisfactory condition insured for their full price against all risks and hold the proceeds of insurance on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;
8.3.4 notify the Company immediately if it becomes subject to any of the events listed in condition 8.5; and
8.3.5 give the Company such information relating to the Goods as the Company may require from time to time.
8.4 The Buyer may resell the Goods before ownership has passed to it solely on the condition that any sale shall be on the Buyer’s own behalf in the ordinary course of the Buyer’s business at full market value and the Buyer shall deal as principal (not as the Company’s agent) when making such sale. In such circumstances, title to the Goods shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs.
8.5 The Buyer’s right to possession and resale of the Goods shall terminate immediately and all sums shall become due and payable immediately and the Buyer agrees that the Company shall have the right to rescind or terminate the Contract and/or to suspend any further deliveries under the Contract if any of the following events, or the Company reasonably believes that any of the following events will, happen:
8.5.1 the Buyer has a bankruptcy order made against it or makes an arrangement or composition with its creditors or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors or (being a body corporate) convenes a meeting of creditors or enters into liquidation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder, or a resolution is passed or a petition presented 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
8.5.2 the Buyer encumbers or in any way charges any of the Goods or suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts or the Buyer ceases to trade.
8.6 The Company shall be entitled to recover payment for the goods notwithstanding that ownership of any of the Goods has not passed from the Company.
8.7 The Company may at any time require the Buyer to deliver up all Goods in its possession which have not been resold or irrevocably incorporated into another product.
8.8 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or where the Buyer’s rights to possession has terminated, to recover them.
8.9 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
8.10 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 8 shall remain in effect.
9.1 The Company warrants that (subject to the other provisions of these Conditions) upon delivery the Goods will comply with the manufacturer’s specification for the Goods, subject to any qualification contained in the specification.
9.2 The Company shall not be liable for a breach of the warranty in condition 9.1 unless:
9.2.1 the Buyer gives written notice of any defect to the Company within seven working days of delivery; and
9.2.2 the Company is given a reasonable opportunity of examining the Goods and the Buyer (if asked to do so by the Company) returns the Goods to the Company’s place of business for the examination to take place there.
9.3 The Company shall not be liable for a breach of the warranty in condition 9.1 if:
9.3.1 the Buyer makes any further use of the Goods after giving notice of any defect; or
9.3.2 the defect arises because the Buyer failed to follow the Company’s instructions as to the storage or use or maintenance of the Goods or good trade practice; or
9.3.3 the Buyer alters or repairs the Goods without the written consent of the Company;
9.3.4 the defect arises as a result of the Company following any specification supplied by the Buyer; or
9.3.5 the Goods differ from their specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.4 Subject to conditions 9.2 and 9.3, if any of the Goods do not conform with the warranty in condition 9.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate and shall have no further liability for breach of the warranty in condition 9.1 in respect of such Goods (including but not limited to any liability for related labour costs incurred by the Buyer). If the Company so requests, the Buyer shall, at the Company’s reasonable expense, return the Goods or the parts of such Goods which are defective to the Company.
9.5 These Conditions shall apply to any replacement Goods supplied by the Company.
10. Limitation of Liability
10.1 Subject to conditions 3, 4, 5 and 9, the following provisions set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any:
10.1.1 breach of these Conditions;
10.1.2 use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 representation, statement or tortious act or omission, including negligence, arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by Section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Conditions excludes or limits the liability of the Company:
10.3.1 for death or personal injury caused by the Company’s negligence;
10.3.2 under Section 2(3) of the Consumer Protection Act 1987;
10.3.3 for any matter in respect of which it would be illegal for the Company to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
The Buyer’s attention is in particular drawn to the provisions of condition 10.4
10.4 Subject to conditions 10.2 and 10.3:
10.4.1 the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of goodwill, loss of business opportunity, loss of revenue, production downtime or any type of indirect, consequential or inconsequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of any act or omission of the Company under or in connection with the Contract, including but not limited to any claim under tort (including negligence and breach of statutory duty) or under contract; and
10.4.2 in any event the Company’s total liability to the Buyer for any claim arising under or in 10.4.2 in any event the Company’s total liability to the Buyer for any claim arising under or in
10.5 The Buyer accepts sole responsibility for ensuring that any measurements and other information which the Buyer provides to the Company are correct. The Company shall not be liable for any losses or damage suffered by the Buyer where any of the Goods are not suitable for the Buyer’s purposes as a result of incorrect or inadequate measurements or other information provided by the Buyer or any failure by the Buyer to provide relevant information.
10.6 The Company shall not be liable for any losses or damage suffered by the Buyer which arise because the Buyer, or any contractor engaged by the Buyer to install the Goods (or any part of them), fails to follow any instructions provided by the Company or supplied by the relevant manufacturer as to the storage, installation, use and/or maintenance (including but not limited to cleaning) of the relevant Goods.
11. Intellectual Property Rights
11.1 The Buyer shall not use the Company’s name, logo or other intellectual property rights in advertising or publicity without the Company’s prior written consent.
11.2 Where the Goods are produced to the Buyer’s specification, the Buyer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of such specification. This condition 11.2 shall survive termination or completion of the Contract.
12. Events beyond the Company’s control
12.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or to reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if the Company is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war, national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
13.1 The Buyer shall not assign the Contract or any part of it without the prior written consent of the Company.
13.2 The Company shall be entitled to assign the Contract or any part of it to any person, firm or company.
13.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.6 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
13.7 Subject to conditions 13.1 and 13.2 nothing in these Conditions confers on any third party any benefit or any right to enforce any of these Conditions.
13.8 Nothing in the Contract excludes the statutory rights of consumers.
13.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the jurisdiction of the English courts.
13.10 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by the Company which is not set out in the Contract.
13.11 Where the Buyer is an individual, by entering into the Contract the Buyer hereby consents to the Company processing the Buyer’s personal data (as defined in the Data Protection Act 1998) in order to assist the Company in performing its obligations under the Contract and for the purposes of the Company sending marketing materials to the Buyer from time to time.