Parkside Ceramics Limited
TERMS and CONDITIONS OF SALE – July 2018 edition
1. Please read these terms and conditions carefully, as you will be bound by them when you do business with us.
DEFINITIONS AND INTERPRETATION
2. The definitions and rules of interpretation in the Appendix apply to each Contract.
TERMS AND CONDITIONS
3. To buy from us, you must accept a quotation within its validity period (this is 30 days from the date of the quotation, or any later date stated in the quotation). Exceptionally, if you buy from us without a quotation having been given by us, these terms and conditions shall apply as if we had given a quotation.
4. Each accepted quotation will result in a separate Contract between you and us, under which we agree to sell and you agree to buy the Products specified in the quotation for the price stated (or if no price is stated the price in our list price in force at the date of the quotation) and these terms and conditions and the content of the quotation will make up the entire agreement between you and us. All other terms and conditions (including the conditions implied by sections 3–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law and we make no representations concerning the Products; and in particular if you attempt to apply further or different terms and/or conditions, they will be of no effect. To be effective any variation to these terms and conditions and any statements concerning the Products must be in writing in the quotation.
5. You are responsible for deciding on your own requirements, and in particular for selecting sufficient quantities to allow for tolerances in estimating quantities, wastage and breakage and for choosing suitable Products for your intended use.
6. Samples, drawings, descriptive material, specifications and advertising issued by us and by Product manufacturers and importers, and any descriptions or illustrations contained in our or any manufacturers or importer’s catalogues, brochures or websites are for illustration purposes only. They do not form part of the Contract and we do not sell by reference to samples. In particular:
- 6.1. printed material and electronic devices may not display the colour and/or texture of Products accurately;
- 6.2. some Products have a random or repeating pattern, requiring a minimum expanse of tiling to best display the pattern;
- 6.3. resulting from the use of natural materials and the nature of the manufacturing processes involved, there may be variations in size, colour, shade and texture of individual Products and Products may be porous, subject to veining and other naturally occurring imperfections, prone to staining, prone to pitting and/or prone to change their appearance and/or performance over time.
DELIVERY, COLLECTION AND INSPECTION
7. Our aim is to deliver Products to the Delivery Point or to make Products available for collection from Parkside premises, as applicable, within a reasonable time after a quotation is accepted. However, time is not of the essence. When we give a delivery or collection date, this will be an estimate and is not guaranteed. Our staff have no authority to guarantee delivery or collection dates. We have the right to deliver or make Products available for collection in instalments.
8. At your own cost you must make appropriate arrangements to collect or take delivery of Products and in particular you must:
- 8.1. provide lawful and suitable access for the delivery vehicle at the Delivery Point and tell us of any anticipated problems with the Delivery Point at least 2 Business Days in advance;
- 8.2. provide adequate and appropriate equipment and suitably trained and equipped manual labour for the safe loading (on collection) or unloading (on delivery);
- 8.3. ensure that the Delivery Point is a safe working environment for delivery personnel, in accordance with your responsibilities under applicable health and safety laws;
- 8.4. provide a means of identification.
9. We have the right to decline to deliver or make Products available for collection when:
- 9.1. you have failed to pay for them, or for any other Products under any other Contract, in accordance with the applicable payment arrangements;
- 9.2. you have failed to meet your obligations under the Contract, or under any other Contract;
- 9.3. in our opinion you have not made appropriate arrangements for delivery or collection;
- 9.4. you are Insolvent;
but if we do deliver or make Products available for collection in these circumstances, that will not affect our rights under the Contract.
10. If you do not collect Products within 3 Business Days of us telling you that they are ready for collection, or you do not accept delivery of Products, or we decline to deliver or make Products available for collection; then, unless we have the ongoing right to decline to deliver or make Products available for collection:
- 10.1. we will take reasonable steps to rearrange the delivery or collection and we have the right to be reimbursed any costs and expenses we reasonably incur including, without limitation, additional delivery costs, storage costs and insurance costs until the Products are delivered or collected; and
- 10.2 if delivery or collection does not take place within 3 months of the date of the first attempted delivery or availability for collection, we have the right to sell them, following which we will account to you for the proceeds of sale less any sums we have the right to claim under clause 10.1 and any others sums you may owe us at the time of the sale; and this does not affect our right to be paid in full for the Products.
11. The quantity of Products recorded by us or our agent on despatch, or making available for collection, will be sufficient evidence of the quantity received by you unless you can provide conclusive evidence to the contrary.
12. You must inspect Products promptly within two weeks of collection or delivery or, if earlier, before using them (see clauses 20 to 22 for your limited warranty for your rights if there is a problem).
PASSING OF RISK AND TITLE
13. Once you take delivery or collect Products they are at your risk (and are not insured by us) and until you pay for them in full in cash or cleared funds:
- 13.1. we retain ownership and you hold them on a fiduciary basis as our bailee and must (at no cost to us) store them separately from all other goods, so that they remain readily identifiable as our property, ensuring that they are not damaged, destroyed or used and keeping them insured against the risk of loss or damage;
- 13.2. you may only re-sell them with our written permission;
- 13.3. we have the right, or where applicable you must obtain for us the right, to enter the premises where they are stored in order to inspect them or re-possess them.
PRICE AND PAYMENT
14. We have the right to increase the price of Products after a Contract is made, to reflect any increase in the cost to us of Products due to:-
- 14.1. an event of Force Majeure and/or financial conditions beyond our reasonable control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- 14.2. requests you make, for example to change the delivery date(s), quantities or types of Products (if we agree to them, which we do not have to);
- 14.3. your failure to make appropriate arrangements for delivery or collection.
15. The prices given in our quotations and price lists are and must be paid in GBP £ sterling and are exclusive of value added tax and any other applicable sales tax, duty or levy, which you must pay in addition (or reimbursed to us by you if we become legally liable to pay). We have the right to charge in addition for packaging, loading, unloading, waiting, storage, carriage and insurance.
16. We have the right to require payment of the whole or part of any amount payable, before delivery or collection. Invoices are payable immediately on receipt, unless stated otherwise in our invoice. Payment must be made to the payee or bank account given in our invoice.
17. Payments are made when we have received cash or cleared funds; and must be made in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
18. We have the right to at any time, without limiting any other rights we have, set off any amount owing to us by you against any amount payable by us to you.
19. You must pay interest to us on any overdue sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of The Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. We have the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
20. We warrant that Products will on delivery or collection:
- 20.1. conform in all material respects to the quotation;
- 20.2. be free from material defects in design, material and workmanship;
- 20.3. be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
taking into account applicable European and British standards.
21. We will at our option, repair, replace, or refund the price paid for Products that do not meet this warranty, if you tell us in writing:
- 21.1. in the case of matters discoverable by physical inspection, as soon as reasonably practicable after you become aware (or should reasonably have become aware) and in any event before no later than 2 weeks after delivery or collection; and
- 21.2. in the case of matters not discoverable by physical inspection, as soon as reasonably practicable after you become aware (or should reasonably have become aware) and in any event no later than 12 months after delivery or collection; and
give sufficient information about the problem and allow us a reasonable opportunity to examine the Products, returning a sample of the Products concerned to us if we request it.
22. Subject to Clause 23, we are not liable for, or for anything resulting from:
- 22.1. our following any specification or requirement of yours in relation to the Products;
- 22.2. wear and tear, wilful damage, misuse, neglect or negligence;
- 22.3. your failure to comply with instructions and good industry practice concerning the storage, installation, use and maintenance of the Products;
- 22.4. modification of the Products;
- 22.5. use of the Products after notifying us that they do not meet the warranty in clauses 20.
LIMITATION OF LIABILITY
23. Nothing in these terms and conditions excludes or limits our liability:
- 23.1. for death or personal injury caused by negligence;
- 23.2. under section 2(3), Consumer Protection Act 1987;
- 23.3. for any matter which it would be illegal for us to exclude or attempt to exclude liability for;
- 23.4. for fraud or fraudulent misrepresentation.
24. Subject to clause 23, our liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) for:
- 24.1. any failure by us to comply with these terms and conditions;
- 24.2. anything resulting from the use or resale of any Products, or of anything incorporating any Products; and
- 24.3. any representation, statement or tortious act or omission including negligence under or in connection with a Contract;
is excluded or limited as follows, for each Contract:
- 24.4. we are not liable for and will not pay for any indirect or consequential loss or damage;
- 24.5. we are not liable for and will not pay for any loss or damage (whether or not indirect or consequential) to the extent representing or resulting from additional costs of working, delay, liquidated damages, the cost of re-performing work, the cost of buying replacement materials, loss of profit, loss of contracts, loss of opportunity;
- 24.6. we are not liable for and will not pay for anything resulting from an event of Force Majeure; and
- 24.7. when we are liable, our total aggregate financial liability howsoever arising in connection with a Contract will be limited to the amount you paid us under the Contract.
GENERAL CONTRACT TERMS
25. We have the right to assign a Contract or any part of it to any person, firm or company. You do to have the right to do this.
27. Each right or remedy of ours under a Contract is without prejudice to any other right or remedy.
28. If any provision of a 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 will 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 will continue in full force and effect.
29. Failure or delay by us in enforcing or partially enforcing any rights we have under a Contract will not be construed as a waiver of any of our rights.
30. Any waiver by us of any breach of, or any default under, any provision of the Contract by you will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
31. Neither we nor you intend that any Contract be enforceable by anyone else (other than us and you) under the Contracts (Rights of Third Parties) Act 1999, or otherwise.
32. Each Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
DEFINITIONS AND INTERPRETATION
In each Contract, the definitions and rules of interpretation and definitions in the Appendix apply.
- 1. “Business Day” means a working weekday (other than a Saturday or Sunday or public bank holiday) in England when the banks in London are open.
- 2. “Buyer, you or your” means for each quotation, the person, firm or company named as the buyer.
- 3. “Company, or we” means Parkside Ceramics Limited Registered in England No. 01732302 VAT No. 372 2996 24.
- 4. “Contract” means an agreement between you and us for the sale and purchase of the Products specified in a quotation and incorporating these terms and conditions in accordance with clauses 3 and 4.
- 5. “Delivery Point” means the location for delivery of Products as specified in a quotation, or in any later communication from us.
- 6. “Force Majeure” means an event or sequence of events beyond our reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying us from performing our obligations under a Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract; strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving our or our suppliers workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay.
- 7. “Insolvent” means you have a bankruptcy order made against you or make an arrangement or composition with your creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convene a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except for a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or have a receiver and/or manager, administrator or administrative receiver appointed to your undertaking or any part of it, or documents are filed with the court for the appointment of an administrator of you or notice of intention to appoint an administrator is given by you or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for your winding-up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your the insolvency or possible insolvency; or you suffers or allows any execution, whether legal or equitable, to be levied on your property or obtained against you, or is unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or you cease to trade.
- 8. “Manufacturer” means a 3rd party involved in the production and potential shipping of Products to us or direct to you at the delivery point.
- 9. “quotation” means a quotation for Products as prepared by us.
- 10. “Products” are those saleable items to be supplied to us to you as specified in a quotation (including any part or parts of them).
RULES OF INTERPRETATION
- 1. a reference to this Agreement includes its schedules, appendices and annexes (if any);
- 2. a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
- 3. a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
- 4. a reference to a gender includes each other gender;
- 5. words in the singular include the plural and vice versa;
- 6. any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions will be construed as illustrative only and will not limit the sense of any word, phrase, term, definition or description preceding those words;
- 7. the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and will have no effect on the interpretation of this Agreement; and
- 8. a reference to legislation is a reference to that legislation as it is in force as at the date of this Agreement.