1 Interpretation
1.1 In these Conditions:
‘BUYER’ means the person who accepts a quotation of the Seller for the sale
of the Goods or whose order for the Goods is accepted by the Seller ‘GOODS’
means the goods (including any instalment of the goods or any parts for them)
which the Seller is to supply in accordance with these Conditions ‘SELLER’
means HAMPSHIRE TILE WAREHOUSE LTD (registered in ENGLAND under
number 1224335) ‘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 ‘CONTRACT’ means the contract for the purchase and sale of the
Goods ‘WRITING’ and any similar expression includes facsimile transmission
but not electronic mail or other forms of electronic communication 'FORCE
MAJEURE' means any circumstance beyond the reasonable control of the Seller
or the Buyer (as the case may be) including but without limitation any Act of God,
storm, flood, strike, lockout or industrial action
1.2 Any reference in these Conditions to any provision of a statute shall be
construed as a reference to that provision as amended, re-enacted or extended
at the relevant time
1.3 The headings in these Conditions are for convenience only and shall not affect
their interpretation
1.4 In these Conditions the singular includes the plural and vice versa and any
gender includes any other gender
2 Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with
any written quotation of the Seller which is accepted by the Buyer, or any written
order of the Buyer which is accepted by the Seller, subject in either case to these
Conditions, which shall govern the Contract to the exclusion of any other terms
and conditions subject to which any such quotation is accepted, or purported to
be accepted, or any such order is made or purported, by the Buyer
2.2 No variation to these Conditions shall be binding unless agreed in Writing
between the authorised representatives of the Buyer and the Seller
2.3 The Seller’s employees or agents are not authorised to make any
representations concerning the Goods unless confirmed by the Seller in writing
and in entering into the Contract the Buyer acknowledges that it does not rely on
any such representations which are not so confirmed, but nothing in these
Conditions affects the liability of either party for fraudulent misrepresentation
2.4 Any advice or recommendation given by the Seller or its employees or agents to
the Buyer or its employees or agents as to the storage, application or use of the
Goods which is not confirmed in Writing by the Seller is followed or acted upon
entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for
any such advice or recommendation which is not so confirmed
2.5 Any typographical, clerical or other error or omission in any sales literature,
quotation, price list, acceptance of offer, invoice or other document or information
issued by the Seller shall be subject to correction without any liability on the part
of the Seller
3 Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller
unless and until confirmed in Writing by the Seller’s authorised representative
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the
terms of any order 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
3.3 The quantity, quality and description of and any specification for the Goods shall
be those set out in the Seller’s quotation (if accepted by the Buyer) or the
Buyer’s order (if accepted by the Seller)
3.4 The Seller reserves the right to make any changes in the specification of the
Goods which are required to conform with any applicable statutory or E.U.
requirements, or where the goods are to be supplied to the Sellers specification
which do not materially affect their quality or performance.
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer
except with the agreement in Writing of the Seller on such terms as the Seller
shall specify
3.6 The Seller discharges their responsibility where quantities of material are
estimated by the Seller on the Buyers behalf. The Seller accept no responsibility
for the sufficiency or otherwise of the quantities for the goods ordered and
received by the Buyer
4 Price of the Goods
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has
been quoted (or a quoted price is no longer valid), the price listed in the Seller’s
price list current at the date of acceptance of the order. All prices quoted are valid
for 90 days only or until earlier acceptance by the Buyer or notification to him of
any change and are exclusive of VAT at current rates
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before
delivery, to increase the price of the Goods to reflect any increase in the cost to
the Seller which is due to any factor beyond the control of the Seller (such as,
without limitation, any foreign exchange fluctuation, significant increase in costs
of labour, materials or other costs of manufacture), any change in delivery dates,
quantities or specifications for the Goods which is requested by the Buyer, or any
delay caused by any instructions of the Buyer, or failure of the Buyer to give the
Seller adequate information or instructions
5 Terms of Payment
5.1 Where the face of the order confirmation shows the words “Cash Sale” then pay
ment shall be made upon delivery to or collection by the Buyer, and shall be by
cash, credit card acceptable to the Seller, or cheque up to £50.00 and supported
by valid cheque card, in which case the rest of this clause shall not apply
5.2 In all other cases the rest of this clause shall apply and subject to any special
terms agreed in Writing between the Buyer and the Seller, the Seller shall be
entitled to invoice the Buyer for the price of the Goods on or at any time after
delivery of the Goods, unless the Goods are to be collected by the Buyer or the
Buyer wrongfully fails to take delivery of the Goods, in which event the Seller
shall be entitled to invoice the Buyer for the price at any time after the Seller has
notified the Buyer that the Goods are ready for collection or (as the case may be)
the Seller has tendered delivery of the Goods
5.3 The Buyer shall pay the price of the Goods by the 25th day of the calendar
month following the month in which the Seller’s invoice was rendered notwith-
standing that delivery may not have taken place and the property in the Goods
has not passed to the Buyer. The time of payment of the price shall be of the
essence of the Contract. Receipts for payment will be issued only upon request
5.4 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:
5.4.1 cancel the contract or suspend any further deliveries to the Buyer;
5.4.2 appropriate any payment made by the Buyer to such of the Goods (or the goods
supplied under any other contract between the Buyer and the Seller) as the
Seller may think fit (notwithstanding any purported appropriation by the Buyer);
and
5.4.3 charge the Buyer interest (both before and after any judgement) on the amount
unpaid, at the rate of 2 per cent per month until payment in full is made (a part of
a month being treated as a full month for the purpose of calculating interest)
6 Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the
Seller’s premises at any time after the Seller has notified the Buyer that the
Goods are ready for collection or, if some other place for delivery is agreed by
the Seller, by the Seller delivering the Goods to that place
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller
shall not be liable for any delay in delivery of the Goods howsoever caused. Time
for delivery shall not be of the essence unless previously agreed by the Seller in
writing. The Goods may be delivered by the Seller in advance of the quoted
delivery date upon giving reasonable notice to the Buyer
6.3 Where delivery of the Goods is to be made by the Seller in bulk, the Seller
reserves the right to deliver up to 5 per cent more or 5 per cent less than the
quantity ordered without any adjustment in the price, and the quantity so
delivered shall be deemed to be the quantity ordered
6.4 Where the Goods are to be delivered in instalments, each delivery shall
constitute a separate contract and failure by the Seller 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 instalments shall not entitle the Buyer to treat the
Contract as a whole as repudiated
6.5 If the Seller fails to deliver the Goods (or any instalment) for any reason other
than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and
the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to
the excess (if any) of the cost to the Buyer (in the cheapest available market) of
similar goods to replace those not delivered over the price of the Goods
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate
delivery instructions at the time stated for delivery (otherwise than by reason of
any cause beyond the Buyer’s reasonable control or by reason of the Seller’s
fault) then without prejudice to any other right or remedy available to the Seller
the Seller may:
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable
costs (including insurance) of storage; or
6.6.2 sell the Goods at the best price readily obtainable and (after deducting all
reasonable storage and selling expenses) account to the Buyer for the excess
over the price under the Contract or charge the Buyer for any shortfall below the
price under the Contract
6.7 The Seller may at its discretion accept returns of unused, packaged Goods
subject to a handling charge of 25% of the full price. All returns must be made
within one month of sale and be in a resaleable condition. The Seller will not
accept returns of goods that did not come from the Seller’s stock or of goods
returned in part full boxes
6.8 If the Seller is requested to deliver to a site, delivery will be to the nearest hard
road to the site
6.8.1 If the Buyer requests delivery to a site beyond the nearest hard road, then all
risks as to the condition of the Goods on delivery shall be with the Buyer and no
claim shall be entertained as to the condition of the Goods on delivery
6.8.2 In the case of delivery to a site or to the nearest hard road to the site, at the
request of the Buyer, a signed Delivery Note. Is conclusive evidence that
delivery has been made to the Order of the Buyer and in compliance with the
Contract
6.8.3 Unloading of the delivered Goods shall be the responsibility of the Buyer
6.8.4 The Buyer shall effect unloading of the Goods with reasonable speed and
commencing immediately after delivery of the Goods
7 Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 In the case of Goods to be delivered at the Seller’s premises, at the time when
the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2 In the case of Goods to be delivered otherwise than at the Seller’s premises, at
the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods,
the time when the Seller has tendered delivery of the Goods
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other
provision of these Conditions, the property in the Goods shall not pass to the
Buyer until the Seller has received in cash or cleared funds payment in full of the
price of the Goods and all other goods agreed to be sold by the Seller to the
Buyer for which payment is then due
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall
hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the
Goods separate from those of the Buyer and third parties and properly stored,
protected and insured and identified as the Seller’s property but shall be entitled
to resell or use the Goods in the in the ordinary course of its business
7.4 Until such time as the property in the Goods passes to the Buyer (and provided
the Goods are still in existence and have not been resold), the Seller shall be
entitled at any time to require the Buyer to deliver up the Goods to the Seller and,
if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or
any third party where the Goods are stored and repossess the Goods
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security
for any indebtedness any of the Goods which remain the property of the Seller,
but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without
prejudice to any other right or remedy of the Seller) forthwith become due and
payable
8 Warranties and Liability
8.1 The Goods were not manufactured by the Seller and the Buyer accepts that this
is the case. Subject as set out below the Buyer shall be entitled to the benefit of
any warranty or guarantee given by the manufacturer to the Seller and any liability
of the Seller to replace Goods ends at the end of the period of any such warranty
or guarantee given by the manufacturer
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 No liability is accepted for crazing or discrepancies in colour of tiles and bricks
supplied as Goods. The Buyer accepts this may be unavoidable in the production
of tiles and bricks
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear
and tear, wilful damage, negligence, abnormal working conditions, failure to follow
the Seller’s instructions (whether oral or in writing), misuse or alteration or repair
of the Goods without the Seller’s approval
8.2.3 the Seller shall be under no liability under the above warranty (or any other
warranty, condition or guarantee) if the total price for the Goods has not been
paid by the due date for payment
8.2.4 no claim shall be made by the Buyer in respect of the defective condition or failure
to meet specification of any Goods once they have been fixed, or any attempt has
been made to so fix them
8.3 Subject as expressly provided in these Conditions, all warranties, conditions or
other terms implied by statute or common law are excluded to the fullest extent
permitted by law
8.4 Any claim by the Buyer which is based on any defect in the quality or condition
of the Goods or their failure to correspond with specification shall (whether or not
delivery is refused by the Buyer) be notified to the Seller within 7 days from the
date of delivery or (where the defect or failure was not apparent on reasonable
inspection) within a reasonable time after discovery of the defect or failure. If
delivery is not refused, and the Buyer does not notify the Seller accordingly, the
Buyer shall not be entitled to reject the Goods and the Seller shall have no liability
for such defect or failure, and the Buyer shall be bound to pay the price as if the
Goods had been delivered in accordance with the Contract
8.5 Where any valid claim in respect of any of the Goods which is based on a defect
in quality or condition of the Goods or their failure to meet specification is notified
to the Seller in accordance with these Conditions, the Seller shall be entitled to
replace the Goods (or the part in question) free of charge or, at the Seller’s sole
discretion, refund to the Buyer the price of the Goods (or a proportionate of the
price), but the Seller shall have no further liability to the Buyer
8.6 Except in respect of death or personal injury caused by the Seller’s negligence,
the Seller shall not be liable to the Buyer by reason of any representation, (unless
fraudulent) or any implied warranty, condition or other term, or any duty at
common law, or under the express terms of the Contract, for any consequential
loss or damage (whether for loss of profit or otherwise), costs, expenses or other
claims for consequential compensation whatsoever (and whether caused by the
negligence of the Seller, its employees or agents or otherwise) which arise out of
or in connection with the supply of the Goods or their use or resale by the Buyer,
and the entire liability of the Seller under or in connection with the Contract shall
not exceed the price of the Goods, except as expressly provided in these
Conditions
8.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the
Contract by reason of any delay in performing, or any failure to perform, any of
the Seller’s obligations in relation to the Goods, if the delay or failure was due to
Force Majeure
8.8. If either party is affected by Force Majeure, it shall promptly notify the other of the
circumstances in question
9 Insolvency of Buyer
9.1 This clause applies if:
9.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an
individual or firm) becomes bankrupt, or (being a company) becomes subject to
an administration order or goes into liquidation (otherwise than for the purposes
of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the
property or assets of the Buyer; or
9.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 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
9.2 If this clause applies 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 notwithstanding any previous agreement or arrangement to the
contrary
10 General
10.1 The Seller Hampshire Tile Warehouse Ltd, and accordingly the Seller may
perform any of its obligations or exercise any of its rights under the Contract by
itself or through any other member of its group, providing that any act or omission
of any such other member shall be deemed to be the act or omission of the Seller
10.2 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 registered
office or 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 the notice
10.3 No waiver by the Seller of any breach of the Contract by the Buyer shall be
considered as a waiver of any subsequent breach of the same or any other
provision
10.4 If any provision of these Conditions is held by any competent authority to be
invalid or unenforceable in whole or in part the validity of the other provisions of
these Conditions and the remainder of the provision in question shall not be
affected thereby
10.5 The Contract shall be governed by the laws of England