TERMS AND CONDITIONS OF TRADE SALES FOR N & C BUILDING PRODUCTS LIMITED
These terms do not apply if you are a consumer for this purpose a consumer means any natural person acting for purposes outside his trade business or profession.
Health & safety information about the use of the goods is provided and it is your responsibility to bring this to the attention of the user of the goods.
1. DEFINITIONS
In these Sale Terms:
"We" and "Us" means Nicholls & Clarke Limited and its subsidiary Companies and its employees and agents and "Our" shall be interpreted accordingly.
"You" means the person their employees and agents seeking to purchase Goods from Us and "Your" shall be interpreted accordingly.
"the Goods" means the goods and/or services to be supplied by Us.
"the Terms" means these terms and any special terms agreed in writing between You and Us.
"the Contract" means the contract for the supply of Goods incorporating these Terms.
2. THE CONTRACT
2.1 All orders are accepted by Us only under these Terms and they may not be altered without Our written agreement. No modification or amendment of these Terms shall be valid unless made in writing and signed by duly authorised representatives of both parties. No waiver of any term, provision, or condition of these Terms shall be effective unless made in writing and signed by the waiving party, and any such waiver shall apply only to the specific instance and for the specific purpose for which it was given.
2.2 These Terms, including all schedules, appendices, and documents expressly incorporated by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous negotiations, discussions, understandings, representations, warranties, promises, or agreements, (including any terms proposed by you) whether written or oral, relating to such subject matter.
2.3 Each party acknowledges that, in entering into these Terms, it has not relied on, and shall have no remedy in respect of, any statement, representation, assurance, or warranty (whether made negligently or innocently) that is not expressly set out in these Terms. Nothing in this Clause shall limit or exclude any liability for fraud or fraudulent misrepresentation.
2.4 Quotations are invitations to treat only and shall lapse 30 days from their date.
2.5 You shall be responsible to Us for ensuring the accuracy of the terms of any order including any applicable design drawing or specification provided by You and for giving Us any necessary information relating to the Goods within a sufficient time to enable Us to perform the Contract in accordance with its Terms.
2.6
2.6.1 We shall not be liable in respect of any misrepresentation made by Us to You as to the condition of the Goods their fitness for any purpose or as to quantity or measurements unless the representation is:
2.6.1.1 made or confirmed in writing by Us; and/or
2.6.1.2 fraudulent.
2.6.2 Without prejudice to clause 2.4.1 of these Terms while We take every precaution in the preparation of Our catalogues technical circulars price lists and other literature these documents are for Your general guidance only and statements made therein (in the absence of fraud on Our part) shall not constitute representations by Us and We shall not be bound by them. If You require advice in relation to the Goods a specific request for advice should be made and any advice made or confirmed in writing in response to such a request shall amount to a representation and We shall be liable accordingly.
2.7 No cancellation of the whole or any part of any order is permitted except where expressly agreed by Us in writing. In the event of such agreed cancellation you shall indemnify Us against all expenses incurred as a result of such cancellation. In any case in which we are required to place a deposit with a manufacturer or supplier in respect of your order then we may require you to reimburse Us with this sum in the event of your cancellation of the order or any part thereof. Where cancellation involves Goods designed, made or ordered specially for you then you will be liable for any costs incurred by Us in respect of such cancellation.
3. PRICE
3.1 The price of the Goods shall be as published in our price list current at the date of delivery of the Goods. The price is exclusive of VAT which shall be due at the rate ruling on the date of a VAT invoice.
3.2 Prices quoted are applicable to the quantity specification delivery dates and information provided by You. If the order placed varies or delay is caused by Your instructions or lack of instructions, we shall be entitled to adjust the price. The goods will be priced at the date of dispatch.
4. PAYMENT
4.1 Unless the sale is for cash or other credit terms have been agreed in writing all accounts are due for payment on the last day of the month following the month in which the Goods are delivered. Interest shall be payable on overdue payments in accordance with the Late Payments of Commercial Debts (Interest) Act 1998.
4.2 We reserve the right to refuse to execute any order or contract if the arrangements for payment are or Your credit is not satisfactory to Us and in our sole discretion We may require payment for each consignment when it is available and before it is despatched in which case delivery will not be effected until We are in receipt of cleared funds.
4.3 You may not withhold payment of any invoice or other amount due to Us by reason of any right of set off or counterclaim which You may have or allege to have for any reason whatsoever.
4.4 We shall be entitled at all times to set off any debt or claim of whatever nature which We may have against You against any sums due from Us to You.
5. DELIVERY
5.1 The cost of delivery will be told to you during the order process.
5.2 Our liability for delivery ends at the tailboard of our vehicle or the premises of our suppliers when the Goods are delivered direct from suppliers to You or where Goods are delivered by an independent carrier by delivery to that carrier.
5.3 Delivery dates are given in good faith but are estimates only.
5.4 Unless otherwise agreed in writing time for delivery shall not be of the essence of the Contract.
5.5 We shall not be liable for any loss damages costs or expenses of any kind whatsoever whether direct or indirect (including for the avoidance of doubt any liability to any third party) resulting from any delay in delivery of the Goods or failure to deliver the Goods in a reasonable time.
5.6 If you fail to take or make arrangements to accept delivery or collect the Goods or if We are unable to deliver because of inadequate access or instructions delivery shall be deemed and We may do any one or more of the following (without prejudice to any other right or remedy We may have):
5.6.1 make additional charges for failed delivery;
5.6.2 store the Goods at Your risk and costs;
5.6.3 invoice You for the Goods;
5.6.4 terminate this Contract without liability on Our part;
5.6.5 recover from You all costs and losses incurred by Us.
5.7 We reserve the right to make delivery by instalments and tender a separate invoice in respect of each instalment. Any claim which You may have in respect of one instalment shall not affect Your liability in respect of any other instalment.
5.8 Unless otherwise stated all quotations and estimates assume delivery in full loads. We reserve the right to levy additional charges for deliveries by instalments where requested by You.
5.9 The price agreed includes the cost of delivery on week days during normal working hours. An additional charge will be made if We agree to Your request to deliver outside normal working hours, Saturdays, Sundays and/or Bank Holidays.
5.10 You must provide the necessary labour for unloading the Goods and unloading is to be completed with reasonable speed. If Our delivery vehicle is kept waiting for an unreasonable time or is obliged to return without completing delivery or if We provide additional staff to unload Goods an additional charge will be made.
5.11 We shall deliver the Goods as near as possible to the delivery address as a safe hard road permits. We reserve the right to refuse to deliver the Goods to premises considered in the discretion of the driver to be unsuitable.
5.12 If Goods are to be deposited other than on Your private premises You shall be responsible for compliance with all regulations and for all steps which need to be taken for the protection at all times of persons or property and will indemnify Us in respect of all losses damages costs and expenses We may incur as a result of such delivery whether on the public highway or elsewhere.
5.13 You will indemnify Us in respect of all losses damages costs and expenses incurred as a result of delivery in accordance with Your instructions. This indemnity will be reduced in proportion to the extent that such losses damages costs or expenses are due to Our negligence.
6. MATERIALS AND SAMPLES
6.1 There are a number of characteristics of the products we sell which you should be aware of and which should be fully considered prior to purchase including:
6.1.1 It is recognised that a degree of shading and crazing to varying degrees as well as marginal size differences is inherent in all tiles and natural materials such as wood or slate (in fact this variability is often a key attraction of the product) and for this reason:
6.1.1.1 fixing or installation should not be undertaken unless an acceptable blend of shades can be obtained;
6.1.1.2 it is recommended that the contents of a number of boxes be mixed to achieve a random blend;
6.1.1.3 we would stress the importance of satisfying yourself as to the shading / crazing / appearance of the products supplied prior to fixing or fitting as once fixed or fitted they will not be in returnable, saleable condition;
6.1.1.4 we draw to your attention that shading and crazing differences may arise between the Goods supplied and any sample you have viewed when placing your order. This is due to tiles, stone, wood and slate being natural products. You must satisfy yourself as to the quality, shading and crazing of the Goods supplied before they are fixed or fitted as once they are fixed or fitted they will not be in returnable, saleable condition and you will be deemed to have accepted them;
6.1.1.5 the sample service offered has the benefit of subsidised prices and/or free of charge delivery, allowing tiles to be viewed physically without the need to travel to a store. We highly recommend using this process before placing an order as images on monitors do not always accurately represent the actual product. The website will not accept more than one sample order for a tile and we restrict samples to one per type per customer/ site. If multiple tiles are needed this would be seen as a regular order;
6.1.1.6 on occasion, to fulfil sample tile orders, we will send tiles with small defects (e.g. a tile with a chipped/ broken corner, chipped glaze, etc). These tiles will still allow customers to view the colour, texture, finish, etc of the tile for sampling reasons. This action is intentional, reusing and repurposing a product to help reduce material going to landfill and is excluded from damaged goods and is non-refundable. This does not reflect on the condition of tilers used for standard tile orders.
6.1.2 A number of decorated tiles now have silver metallic or gold fired into the glaze and being soft precious metals will not stand abrasion therefore special care should be taken when grouting or cleaning.
6.1.3 The Classification of Glazed Tiles according to their Abrasion Resistance is based on BS EN 14411:2012 and ISO 10545-7:1996 and is available in our showrooms. This is valid for the given applications in normal conditions. Consideration should be given to the footwear, type of foot traffic and cleaning methods expected and the floor should be adequately protected against scratching dirt at entrances by appropriate footmats or entrance matting. Ceramic floor tiles are attractive and hard-wearing but as with other floor coverings they are vulnerable to impact and damage if objects are dropped on them.
6.2 We recommend that all ceramic wall and floor tiles along with natural stone products are fixed using only the Nicobond range of adhesives grouts and screeds.
6.2.1 Instructions for use and full specifications of all Nicobond products are available within the latest technical literature which is available on request.
6.2.2 If you have any doubts about fixing please speak to one of our sales staff and/or ask for a copy of the latest technical literature.
6.2.3 Before any grout is used we recommend that a trial be carried out to ensure that staining of the tile or the tile edges does not occur as we will not be responsible for staining.
6.2.4 There are several products within the Nicobond range of coloured grouts and other ranges which have the same or similar names but it must be noted that there may be some differences in actual colour because they contain different raw materials
6.3 We recommend that all tiles and natural materials are installed according to the fixing methods issued by British Standards or EN Standards and cannot be responsible for problems occurring because of fixing by other means or methods.
6.4 We make all reasonable efforts to ensure that all descriptions and graphical representations of Goods available from our Site correspond to the actual Goods. Please note, however, the following:
6.4.1 Goods may vary slightly from their pictures. Images of Goods on our Site are for illustrative purposes only. There may be slight variations in colour between the image of a product and the actual product sold due to differences in the way they are displayed on different devices and lighting conditions.
6.4.2 Packaging for Goods may vary. Images and/or descriptions of packaging are for illustrative purposes only and may vary from that shown in images on our Site.
6.5 In the case of certain products, variations may arise in the finish of those products where they originate from different factory batches. We shall not be liable for any loss caused by such variation where Goods bought for a specific job or purpose are not purchased at the same time.
7. INSPECTION
7.1 You shall inspect the Goods at the place and time of unloading but nothing in these Terms shall require You to break packaging and/or unpack Goods which are intended to be stored before use.
7.2
7.2.1 You must give us written notice within 3 working days of unloading of any claim for short delivery.
7.2.2 If You do not give Us that notice within that time the Goods will be deemed to have been delivered in the quantities shown in the delivery documents.
7.2.3 You shall not be entitled and irrevocably and unconditionally waive any right to reject the Goods or claim any damages whatsoever for short delivery howsoever caused.
7.2.4 Our liability for short delivery is limited to making good the shortage.
7.3
7.3.1 Where it is or would have been apparent on a reasonable inspection that the Goods are not in conformity with the Contract or (where the Contract is a contract for sale by sample) that the bulk does not compare with the sample You must give Us written notice within 3 working days.
7.3.2 If You fail to give us that notice within that time the Goods will be deemed to have been accepted and You shall not be entitled and irrevocably and unconditionally waive any right to reject the Goods.
8. RETURNS
8.1 Requests for the return of Goods must be made to Our offices and any credit agreed will be subject to a minimum 35% deduction for re-stocking. Drivers have instructions not to accept Goods without prior instructions. In no circumstances can we accept back Goods which have been specially procured or made by Us to special instructions or which have deteriorated.
8.2 Nothing in clause 7.1 shall oblige Us to accept the return of Goods and it will be entirely within Our sole and absolute discretion as to whether or not the return is to be accepted and under what circumstances.
9. TITLE AND RISK
9.1 Risk in the Goods shall pass to You when the Goods are delivered.
9.2 The title to the Goods shall remain with Us until You pay the price of the Goods and any other sums outstanding between You and Us whether in respect of this Contract or otherwise.
9.3 Until title passes:
9.3.1 You shall hold the Goods as Our fiduciary agent and bailee.
9.3.2 the Goods shall be stored separately from any other goods and You shall not interfere with any identification marks labels batch numbers or serial numbers on the Goods.
9.3.3 We agree that You may use or agree to sell the Goods as principal and not as Our agents in the ordinary course of Your business subject to the following express conditions:
(a) that the entire proceeds of any sale or insurance proceeds received in respect of the Goods are held in trust for Us and not mixed with any other monies or paid into an overdrawn bank account and shall at all times be identifiable as Our money;
(b) that You notify Your customer that We remain the legal owner of the Goods until We receive payment in accordance with clause 8.2 and We reserve the right to label the Goods accordingly;
(c) that You will at Our request and at Your expense assign to Us all rights You may have against Your customer; and
(d) that Your right to use or sell the Goods may be withdrawn by Us on notice at any time and will automatically cease if You become Insolvent.
9.3.4 If the Goods are to become affixed to any land or building You must ensure that they are capable of removal without material injury to the land or building and You shall take all necessary steps to prevent title to the Goods from passing to the owner or landlord of such land or building.
9.4 We shall be entitled to recover the price of the Goods including VAT even though the property in any of the Goods remains with Us.
9.5 We shall be entitled at any time to recover any or all of the Goods to which We have title and for that purpose We may with such transport as is necessary enter upon any premises occupied by You or to which You have access and where the Goods may be or are believed to be situated.
10. RESPONSIBILITIES
10.1 Nothing in these Terms shall exclude or restrict Our liability for death or personal injury resulting from Our negligence or Our liability for fraudulent misrepresentation.
10.2 We are willing to undertake liability in addition to that provided by these Terms if a higher selling price for the Goods is agreed.
10.3 If You deal as a consumer as defined by the Unfair Contract Terms Act 1977 ("a Consumer") any provision of these Terms which is of no effect shall not apply. The statutory rights of a Consumer are not affected by these Terms.
10.4 In this clause "Defect" shall mean the condition and/or any attribute of the Goods and/or any condition or other circumstances which but for the effect of these Terms would have entitled You to damages.
10.5 Subject to clauses 9.1 to 9.3 of these Terms We shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any loss damages costs or expenses of any kind whatsoever. Instead of liability in damages We undertake liability under clause 9.6 below.
10.6 Where but for the effect of clause 9.5 of these Terms You would have been entitled to damages against Us We shall not be liable to pay damages but subject to the conditions set out in clause 9.7 below shall in Our sole discretion either repair the Goods at Our own expense or supply replacement Goods free of charge or refund all (or where appropriate part) of the price paid for the relevant Goods.
10.7 We will not be liable under clause 9.6:
10.7.1 if the Defect would have been apparent on a reasonable inspection under clause 6.1 of these Terms at the time of unloading unless You give Us written notice within 3 working days of the time of unloading;
10.7.2 unless the Defect is discovered within 6 months from the date of delivery and We are given written notice of the Defect within 3 working days of it being discovered;
10.7.3 if the Defect arises from fair wear and tear;
10.7.4 if the Defect arises from Your wilful damage, negligence, abnormal working conditions, mis-use, alteration or repair of the Goods failure to follow British Standard or EN Standard or industry instructions relevant to the Goods or storage of the Goods in unsuitable conditions; or
10.7.5 unless after discovery of the Defect We are given a reasonable opportunity to inspect the Goods before they are used or in any way interfered with. We acknowledge that the costs of suspending works are relevant to the determination of what is a reasonable opportunity and this sub-clause shall not apply to any works affecting the Goods which it may be reasonably necessary to carry out in the interests of safety and/or as emergency measures.
10.8 If the Goods are not manufactured by Us or have been processed by a third party whether or not at Our or Your request Our liability in respect of any defect in workmanship or materials of the Goods will be limited to such rights against the manufacturer or the third party as We may have in respect of the Goods. We will on written request provide details of Our rights against the manufacturer or third party and any other terms and conditions imposed by the manufacturer or the third party and so far as possible will on request assign to You any such rights.
10.9 If the Goods are manufactured or processed by Us to the design quantity measurement or specification of You then:
10.9.1 Subject to clauses 9.1 to 9.3 of these Terms We shall not be under any liability for any loss damages costs or expenses of any kind whatsoever or under clause 9.6 of these Terms as the case may be except in the event of:
(a) fraudulent misrepresentation;
(b) misrepresentation where the representation was made or confirmed in writing;
(c) non-compliance with such design quantity measurement or specification; or
(d) breach of a written warranty by Us that the Goods are fit for that purpose.
10.9.2 You will unconditionally fully and effectively indemnify Us against all losses damages costs on an indemnity basis and expenses awarded against or incurred by Us in connection with or paid or agreed to be paid by Us in settlement of any claim:
(a) for infringement of any patents copyright design trademark or any other industrial or intellectual property rights of any other person; and/or
(b) arising from any such manufacturing or processing including but not limited to any Defect in the Goods.
This indemnity will be reduced in proportion to the extent that such losses damage costs and expenses are due to Our negligenc
10.10 Subject to clauses 9.1 to 9.3 of these Terms We shall not be liable for misrepresentation (unless fraudulent) or in contract tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause for:
10.10.1 any loss of profit, business, contracts, revenues or anticipated savings; or
10.10.2 any special, indirect or consequential damage of any nature whatsoever.
10.11 You will unconditionally fully and effectively indemnify Us against all losses damages costs on an indemnity basis and expenses awarded against or incurred by Us in connection with or paid or agreed to be paid by Us in settlement of any claim by any third party arising from the supply or use of the Goods including loss arising from Our negligence. This indemnity will be reduced in proportion to the extent that such losses damages penalties costs and expenses are due to Our negligence.
10.12 Without prejudice to any other provisions in these Terms in any event Our total liability for any one claim or for the total of all claims arising from any one act of default on Our part (whether arising from Our negligence or otherwise) shall not exceed such sum as is from time to time the limit of liability laid down by Our insurers in respect of such claim.
10.13 We shall have no responsibility or liability for any design advice, recommendations or decisions made in connection with the supply of goods or materials under this Agreement. We do not provide design services and any information, specifications or suggestions regarding the use or application of the supplied goods or materials are for general informational purposes only and shall not be construed as professional design advice. You acknowledge that you are solely responsible for ensuring that the design and suitability of the goods or materials supplied are appropriate for the intended purpose. We shall not be held liable for any loss, damage, or claims arising from the use of the goods or materials in any design or construction work, nor for any consequences of relying on non-binding advice in relation to the same.
11. NON-PAYMENT / INSOLVENCY
11.1 "Insolvent" means You becoming unable to pay Your debts within the meaning of Section 123 (Company) or Section 268 (Individual) of the Insolvency Act 1986; the levying or the threat of execution of distress on any of Your property; notice of intention to appoint or the appointment of a receiver, administrative receiver or administrator over all or any part of Your property; a proposal for a voluntary arrangement or compromise between You and Your creditors whether pursuant to the Insolvency Act 1986 or otherwise; the passing of a resolution for voluntary winding-up or summoning a meeting to pass such a resolution otherwise than for the purposes of a bona fide amalgamation or reconstruction; the presentation of a petition for Your winding-up (Company) or bankruptcy (Individual) or for an administration order in relation to You; if You suffer any analogous step or proceedings under foreign law or You ceasing to pay Your debts in the ordinary course of business or ceasing or threatening to cease to carry on Your business.
11.2 If You fail to pay any invoice or any sum due to Us under any contract on the due date or You become Insolvent or if there is a material change in Your constitution or You commit a material breach of this Contract and fail to remedy that breach all sums outstanding between You and Us shall become immediately due and payable and We shall be entitled to do any one or more of the following (without prejudice to any other right or remedy We may have):
11.2.1 require payment in cleared funds in advance of further deliveries;
11.2.2 claim interest and compensation on the sums outstanding pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 from the due date until payment is received after as well as before judgment;
11.2.3 cancel or suspend any further deliveries to You under this or any other contract without liability on Our part;
11.2.4 without prejudice to the generality of clause 8 of these Terms exercise any of Our rights pursuant to that clause; and/or
11.2.5 terminate this or any other contract with You without liability on Our part.
11.3 You shall reimburse Our costs including legal costs on an indemnity basis which We incur in enforcing this Contract including but not limited to recovery of any sums due. Such sums shall be in addition to statutory compensation payable.
12. DATA PROTECTION
12.1 If You are an individual or a group of individuals You agree that We may:
12.1.1 Seek, hold and process any information obtained about You as a result of applications You have made to Us for credit and/or in connection with this or any other contractor agreement You may have with Us.
12.1.2 Use this information for credit assessment purposes and to administer and operate the credit account granted to you and to monitor and analyse the conduct of that credit account and to assess your credit limit.
12.2 We will not disclose any information we hold about You except to licensed credit reference agencies, other suppliers and creditors to help us and others make credit decisions, to help prevent or detect fraud or other crimes and to trace debtors, on a confidential basis to our agents and sub-contractors, to insurance companies for the purposes connected with insurance products that relate or might relate to your credit account, to any person to whom we propose to transfer our rights and/or responsibilities under this Contract and to the extent we are required or permitted to do so by law.
13. GENERAL
13.1 In the event of any inconsistency or conflict between the provisions of the documents comprising these Terms, the order of precedence shall be as follows (with the document listed first having the highest precedence):
13.1.1 any written amendments or addenda to these, duly executed by the parties;
13.1.2 the main body of these Terms;
13.1.3 any attached Schedules, Annexes, or Exhibits;
13.1.4 any referenced documents or external terms (e.g., policies, specifications) incorporated by reference.
To the extent possible, the documents shall be interpreted in a manner that gives full effect to all provisions. However, where such interpretation is not possible, the document with higher precedence shall govern with respect to the conflicting or inconsistent provision.
13.2 This Contract shall be governed and interpreted exclusively according to the Law of England and Wales and You agree to submit to the non exclusive jurisdiction of the English Courts.
13.3 We shall not be liable for any breach of contract delay or failure to perform any of Our obligations if the breach delay or failure was due to any cause beyond Our reasonable control including industrial action.
13.4 The waiver by Us of any breach or default of these Terms shall not be construed as a continued waiver of that breach nor as a waiver of any subsequent breach of the same or any other provision.
13.5 If any clause or sub-clause of these terms is held by a competent authority to be invalid or unenforceable the validity of the other clauses and sub-clauses of these Terms shall not be affected and they shall remain in full force and effect.
13.6 If the Housing Grants, Construction and Regeneration Act 1996 Part II applies to this Contract the Scheme under that Act shall apply and take precedence in the event of conflict between the Scheme and these Terms.
13.7 Any reference in these Terms to any Statute, Statutory Provision or Regulation includes a reference to that Statute, Statutory Provision or Regulation as amended extended or re-enacted at the relevant time.
13.8 The headings of these Terms are for convenience only and shall not affect their interpretation.
13.9 Termination of this Contract shall not affect rights and obligations which have already accrued at the time of termination.
13.10 Nothing in these terms or the Contract is intended to or will create any benefit for or right to enforce any of the terms of the Contract to any third party.
13.11 This Contract contains the whole agreement between You and Us in respect of the supply of Goods to You and supersedes any prior written or oral agreement between You and Us relating to it and You confirm that You have not entered into this Contract on the basis of any representations that are not expressly incorporated in this Contract.
Separate conditions and prices apply to all export orders and contracts.
Nothing in this Contract purports to exclude liability for any fraudulent statement or act.
