Consumer Sales - Terms and Conditions of Consumer Sales for the Nicholls & Clarke Group of Companies
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 a person (not a Company, business or sole trader etc) not acting within your trade or profession 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.a All orders are accepted by us only under these Terms and they may not be altered without our written agreement. Any contrary or additional terms unless so agreed are excluded.
2.b Quotations are invitations to treat only and shall lapse 30 days from their date.
2.c 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.d (i). We shall not be liable in respect of the fitness of the Goods for any particular purpose unless specifically asked for confirmation prior to sale or any representation is fraudulent.
(ii) Without prejudice to clause 2.d.(i) 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. 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.e In the case of ‘distance selling’ or sales from our Web site cancellation of the whole or any part of any order is permitted within 8 days. In the event of such cancellation you should return the Goods in the condition and wrapping in which they were received within the 8 days. Any payment which has been received for the Goods will be refunded to the buyer within 30 days of the Goods being received back. 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.a The price of the Goods shall be as published in our price list current at the date of sale of the Goods. The price will be in sterling and inclusive of VAT.
3.b Prices quoted are applicable to the quantity and specification provided by you. If the order placed is subsequently varied then there may be a need to adjust the unit price
4. PAYMENT
4.a Cash sales are due for payment immediately in cash or by cheque or credit card.
4.b Finance arrangements may be available through a third-party agreement for certain categories of product (e.g. bathrooms and kitchen installations) and details will be available in-store where this is applicable.
4.c Where 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 on overdue accounts shall accrue on a daily basis at 4% above Barclays Bank base rate.
4.d We reserve the right to refuse to execute any order or contract if the arrangements for payment are 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.
5. DELIVERY
5.a 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.b Delivery dates are given in good faith but are estimates only.
5.c Unless otherwise agreed in writing time for delivery shall not be of the essence of the Contract.
5.d 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.e If we fail to deliver the Goods our entire liability shall be limited to the excess (if any) over the price of the Goods, of the cost to you (purchasing in the cheapest market reasonably available to you) of similar goods to replace those not delivered.
5.f 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):
(i) store the Goods at your risk and cost
(ii) invoice you for the Goods
(iii) terminate this Contract without liability on our part
(iv) recover from you all costs and losses incurred by us
5.g Delivery by instalments or in part may be requested by you or agreed.
5.h Unless otherwise stated all quotations and estimates assume delivery in full loads and additional charges for deliveries by instalments will apply where requested by you
5.i. The price agreed includes the cost of delivery on week days during normal working hours. An additional charge will be payable if we agree to your request to deliver outside normal working hours, Saturdays, Sundays and/or Bank Holidays.
5.j We will provide only one employee (the driver) per delivery and you must provide any additional labour necessary for unloading the Goods. If our delivery vehicle is kept waiting for an unreasonable time or is obliged to return without completing delivery or if we agree to provide additional staff to unload Goods an additional charge will need to be agreed.
5.k We shall deliver the Goods to a ground floor entrance of a building or 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.l 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.m 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.
5.n We recommend that goods are delivered prior to you confirming fixing dates with any contractor as we cannot accept any charges if fixing is delayed.
6. INSPECTION
6.a You shall inspect the Goods as soon as reasonably practical after unloading
6.b (i) you must give us written notice within 3 working days of unloading of any claim for short delivery.
(ii) 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.
(iii) our liability for short delivery is limited to making good the shortage.
7. RETURNS
7.a For sales from our web site by telephone or other ‘distance selling’ you are entitled to withdraw from this agreement and return the Goods in the condition and packaging in which they were received within 8 days and any refund of the purchase price (subject always to 3.b above) will be made within 30 days
7.b For sales from our shops showrooms or premises we are unable to accept the return of non-stock items or Goods manufactured or procured specially for you
7.c We will happily accept the return of Goods surplus to requirements following installation in respect of tiles and natural materials as it is recommended that you always purchase at least the required quantity in one batch to ensure shading problems are avoided wherever possible subject to the following:
(i) full undamaged boxed quantities only
(ii) accompanied by original sales invoice
(iii) return within 28 days
(iv) sales items and non-stock items excluded
7.d Any stock item can be purchased on a sample basis with a full deposit payment being taken which will be refunded in full upon return of the sample within 28 days in a saleable condition with the original receipt.
7.e We recognise that minor shading differences can occur between many manufactured goods and while we will usually endeavour without liability to replace any that show up on delivery it is imperative that you check all products prior to installation as we will be unable to accept the return of any product once installed.
8. TITLE AND RISK
8.a Title to the Goods shall pass to you when the Goods are paid for and collected or delivered.
8.b Risk in the Goods passes to you when collected or delivered.
9. TILES AND NATURAL MATERIALS
9.a There are a number of characteristics of these products which you should be aware of and which should be fully considered prior to purchase including:
(i) 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:
(a) fixing or installation should not be undertaken unless an acceptable blend of shades can be obtained
(b) it is recommended that the contents of a number of boxes be mixed to achieve a random blend
(c) we would stress the importance of satisfying yourself as to the shading / crazing of the products supplied prior to fixing as we will be unable to accept any claims or liability for these subjective qualities once fixed.
(ii) 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
(iii) The British Standard for ceramic tiles BS6431 recommends the use of the European tile manufacturers (CEC) and the European tile fixers (EUF) recommendations for use of glazed floor tiles. This system has now been reviewed as part of the forthcoming International Standard for tiles and this revised system will become the recognised system for the classification of the abrasion resistance of glazed floor tiles. The classification shown in our showrooms are 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.
9.b 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.
(i) Instructions for use and full specifications of all Nicobond products are available within the latest technical literature which is available on request.
(ii) 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
(iii) 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
(iv) 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
9.c 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.
10. RESPONSIBILITIES
10.a 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.b 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.c 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.d Subject to Clauses 10.a and 10.b 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 10.e below.
10.e Where but for the effect of Clause 10.d 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 10.f 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.f We will not be liable under Clause 10.e:
(i) unless the Defect is discovered and we are given notice of the defect within 12 months from the date of purchase
(ii) if the Defect arises from fair wear and tear;
(iii) if the Defect arises from Your wilful damage negligence abnormal working conditions mis-use alteration or repair of the Goods failure to follow British or EN Standards or industry instructions relevant to the Goods or installation of the Goods other than according to methods issued by the British Standards Institute or storage of the Goods in unsuitable conditions; or
(iv) 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 subclause 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.g Subject to Clauses 10.a and 10.b 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 whatever the cause for:
(i) any loss of profit, business, contracts, revenues or anticipated savings; or
(ii) any special, indirect or consequential damage of any nature whatsoever.
11. NON-PAYMENT
11.a If you fail to pay any invoice or any sum due to us under any contract on the due date we shall be entitled to do any one or more of the following (without prejudice to any other right or remedy we may have):-
(i) require payment in cleared funds in advance of further deliveries;
(ii) cancel or suspend any further deliveries to you under this or any other contract without liability on our part;
(iii) terminate this or any other contract with you without liability on our part.
12. DATA PROTECTION
12.a You agree that we may:-
(i) 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.
(ii) Use this information for credit assessment purposes and to administer and operate any credit account granted to you and to monitor and analyse the conduct of that credit account and to assess your credit limit.
12.b 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.a 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.b 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.c 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.d 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.e 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.f The headings of these Terms are for convenience only and shall not affect their interpretation.
13.g Termination of this Contract shall not affect rights and obligations which have already accrued at the time of termination
13.h. 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.i 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.
Nothing in this Contract purports to exclude liability for any fraudulent statement or act. (01/06)
