TILEFIXDIRECT.COM TERMS AND CONDITIONS OF SALE
1.1. In these conditions
'BUYER' means the person 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 trading as TileFixDirect.com (registered in ENGLAND under number 1224335) with registered office and main trading address at Area 1, Hollybush Ind Park, Hollybush Lane, Aldershot, Hampshire, GU11 2PX; VAT No. 213 138701 and email address firstname.lastname@example.org
'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 and 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, technical, system or network failure.
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. Formation of the Contract
2.1 After placing an order, the Seller will send the Buyer an email acknowledging receipt of the order. This acknowledgement does not constitute acceptance of the order and the order constitutes an offer to the Seller to buy the Goods. All orders are subject to acceptance by the Seller and such acceptance will be confirmed by the Seller sending the Buyer an email confirming that the Goods (or part thereof) have been dispatched or are ready for collection ("Dispatch Email"). The Contract will only be formed when the Seller has sent a Dispatch Email.
2.2 The Contract will relate only to such Goods whose dispatch or readiness for collection has been confirmed in the Dispatch Email. The Seller shall not be obliged to supply any other Goods which may have been part of an order until the dispatch of such Goods has been confirmed in a separate Dispatch Email.
3. Basis of the sale
3.1. The Seller shall sell and the Buyer shall purchase the Goods in accordance with any order of the Buyer which is accepted by the Seller, subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported by the Buyer.
3.2. No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
3.3. 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.
3.4. 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.
4. Orders and Specifications
4.1. 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.
4.2. The quantity, quality and description of and any specification for the Goods shall be those set out in the Buyer's order (if accepted by the Seller).
4.3. 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.
4.4. 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.
4.5. The Seller accepts no responsibility for the sufficiency or otherwise of the quantities for the goods ordered and received by the Buyer.
5. Age Requirement
5.1 Certain goods are subject to age restrictions and by placing an order for such goods the Buyer warrants that they are aged 18 or over and that delivery of any such goods shall be accepted by a person aged 18 or over. The Seller reserves the right to reject any order placed by the Buyer in breach of this warranty.
6. Price of the Goods & Payment
6.1 The price of the Goods shall be the Seller's quoted price on its website, except in the case of obvious errors. Prices are exclusive of VAT at current rates and exclusive of delivery charges (unless indicated otherwise).
6.2 Prices are liable to change at any time but any change will not affect Goods for which a Dispatch Email has been sent. Price changes after the placing of an order by the Buyer but before a Dispatch Email is sent shall be notified to the Buyer in Writing and confirmation sought as to whether the Buyer wishes to continue with its order.
6.3 If the price of Goods ordered is incorrectly shown on the Seller's website and is higher than that shown, the Seller may either notify the Buyer of the correct price and seek confirmation as to whether the Buyer wishes to continue with its order OR reject the order and notify the Buyer in Writing.
6.4 The Seller is under no obligation to provide Goods to the Buyer at the incorrect (lower) price, even after a Dispatch Email has been sent, if the pricing error is obvious and unmistakeable and could have reasonably by recognised by the Buyer as a mis-pricing.
6.5 The Seller reserves the right, by giving notice to the Buyer at any time before sending of a Dispatch Email, 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.
6.6 Unless otherwise agreed in Writing by the Seller, payment for the Goods shall be made by debit or credit card at the time of placing the order. Payment shall be taken at the time of placing an order but this shall not constitute acceptance of the Buyer's order. If an order is not accepted the Seller shall reimburse the Buyer immediately.
7.1. 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 by Dispatch Email 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.
7.2. 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.
7.3. 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.
7.4. 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.
7.5. 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.
7.6. 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:
7.6.1. Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.6.2. 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.
7.7. If the Seller is requested to deliver to a site, delivery will be to the nearest hard road to the site.
7.7.1. 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.
7.7.2. 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.
7.7.3. Unloading of the delivered Goods shall be the responsibility of the Buyer.
7.7.4. The Buyer shall effect unloading of the Goods with reasonable speed and commencing immediately after delivery of the Goods.
8. Returns Policy
8.1. The Seller may at its discretion accept returns of unused, packaged Goods provided that:
8.1.1. the Seller is notified within 7 days of receipt;
8.1.2. the Goods are returned within one month of delivery;
8.1.3. the Goods are in their original packaging;
8.1.4. the packaging is in good condition and suitable for resale;
8.1.5. the Goods are accompanied by a returns form, which is available from the Seller's website; and
8.1.6. the Goods are returned at the Buyer's cost.
8.2. The Seller reserves the right to impose a handling charge on the Buyer in respect of any returned Goods.
8.3. The Seller will not accept return of Goods not from the Seller's stock or of Goods returned in part full boxes or packaging.
9. Risk and Property
9.1. Risk of damage to or loss of the Goods shall pass to the Buyer:
9.1.1. 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
9.1.2. 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.
9.2. 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 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 and a Dispatch Email for the Goods (or part thereof) has been sent.
9.3. 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.
9.4. 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.
9.5. 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.
10. Warranties and Liability
10.1. 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.
10.2. The above warranty is given by the Seller subject to the following conditions:
10.2.1. 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
10.2.2. 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
10.2.3. 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
10.2.4. 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.
10.3. 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.
10.4. 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.
10.5. 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.
10.6. 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.
10.7. 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.
10.8. If either party is affected by Force Majeure, it shall promptly notify the other of the circumstances in question.
11. Insolvency of Buyer
11.1. This clause applies if:
11.1.1. 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
11.1.2. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
11.1.3. the Buyer ceases, or threatens to cease, to carry on business; or
11.1.4. 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.
11.2. 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.
12.1. 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.
12.2. 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.
12.3. 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.
12.4. 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.
12.5. The Contract shall be governed by the laws of England and subject to the exclusive jurisdiction of the English Courts.