WAXMAN CERAMICS LTD
TERMS AND CONDITIONS OF SALE
1. GENERAL
(a) In these terms and conditions, "Company" means Waxman Ceramics
Ltd of Grove Mills, Elland Lane, Elland, HX5 9DZ, "Purchaser" means the
person buying the Goods from the Company, and all other defined terms
shall have the meanings given to them overleaf. "Goods" means the tiles
and tile products detailed overleaf. “Business Day” means a day (other
than Saturday, Sunday or public holiday) when banks in London are open
for business. “Contract” means the contract between the Company and
the Purchaser for the sale and purchase of the Goods in accordance with
these terms.
(b) Whether or not the Purchaser has signed and returned a copy of this
document, all quotations are given and all orders are accepted by the
Company exclusively on these terms and conditions (in conjunction with
any Incoterm specified overleaf, as modified by these terms and
conditions) to the exclusion of all other terms or conditions which the
Purchaser purports to apply through any order, confirmation, specification
or other document of/ or communication from the Purchaser in the course
of negotiations or any other terms, conditions or representations referred
to in any course of dealings between the Company and the Purchaser. All
orders hereafter made by the Purchaser shall be deemed to be made
subject to these terms and conditions.
(c) These are the terms on which the Company supplies Goods to the
Purchaser and apply to the exclusion of any other terms that the
Purchaser seeks to impose or incorporate, or which are implied by trade,
custom, practice or course of dealing.
(d) No modification of these terms shall be effective unless made by an
express written agreement between the Company (acting through a
Director) and the Purchaser. The signing by the Company of any of the
Purchaser’s documentation shall not imply or effect any such
modification.
(e) The Purchaser shall not be entitled to cancel any contract without the
consent of the Company, which if given shall be deemed to be given on
the express condition that the Purchaser shall indemnify the Company
against all loss, damage, costs, claims or actions arising out of such
cancellation.
(f) No stock can be held or reserved without an official order and delivery
date
(g) The Company only supplied the Goods and does not provide any
services for the installing of the Goods. The installation of the Goods is
the responsibility of the Purchaser. Any advice which the Company
provides to the Purchaser or any customer of the Purchaser relating to
installation or use of the Goods shall be for assistance only and shall not
create any liability or duty of care on the part of the Company.
2. PRICES
In the case of all orders for the supply of the goods described overleaf (“the
Goods”), unless otherwise expressly stated in writing by the Company
orders are accepted on the basis that:-
(a) The price stated is the net price of the Goods (after deduction of any
discounts) excluding delivery in accordance with the provisions overleaf
and is exclusive of value added tax, customs duties and import levies or
any similar duties or levies:
(b) Please note that the Company is entitled without prior notice to
adjust the price stated to take account any change in specification made
at the request of the Purchaser or any alteration before the date of
delivery in the cost to the Company of labour materials sub-contracted
services or import or export duties or tariffs or transport or fluctuations in
currency exchange rates which directly affects the cost to the Company of
supplying the Goods;
(c) the price stated is for stipulated quantities only and does not hold good
for lesser quantities.
3. PAYMENT
(a) In the case of orders for UK delivered Goods, unless otherwise
expressly stated, prices are due and payable in United Kingdom pounds
sterling on the 20th day of the month following the date of delivery (actual
or deemed) of the Goods.
(b) In the case of all orders, if the Purchaser shall fail to make payment in
full on the due date above, then (without prejudice to any other rights of
the Company) the Purchaser shall, without any need for the Company to
give notice, become liable to pay the Company interest on the amount for
the time being unpaid at the rate of 2.5% above the base rate of the
HSBC Bank (or such other rate if any as is specified overleaf) which shall
accrue from day to day, compounded monthly, and be calculated from the
date of delivery of the Goods until the date of actual payment, both before
and after any court judgement and:-
(i) the Company shall be entitled to suspend all or any other deliveries to
be made under that or any other contract with the Purchaser. In such
event the Purchaser shall not in any respect be released from its
obligations to the Company under that or any such other contract; or
(ii) instead of suspension in accordance with paragraph (i) above the
Company shall be entitled to terminate the relevant contract or any
other contract with the Purchaser in accordance with Conditions 11
below and to claim damages from the Purchaser.
(c) Time for payment is of the essence of these terms and conditions.
4. DESPATCH AND DELIVERY
(a) The exact method and target date for delivery as agreed between the
Company and the Purchaser is stated on the order form. Any despatch or
delivery date shown on the order form is a target date only, and whilst the
Company will use all reasonable endeavours to achieve any stated
despatch or delivery date it accepts no liability whatsoever for any loss or
damage resulting from delay howsoever the same shall have been
caused. Time of delivery is not of the essence and shall not be made of
the essence by notice. Please note that where the Company physically
deliver the Goods there may be an additional delivery charge which the
Purchaser will be notified of before delivery or will be stated on the order
form.
(b) In the case of orders for UK delivery, delivery shall (unless otherwise
stated overleaf) be effected on loading the Goods on to the carrier’s
transport at the Company’s Premises.
(c) In the case of orders for delivery outside the UK, delivery shall (unless
otherwise stated overleaf) be effected:
(i) in the case of CIF and CFR contracts (as defined in Incoterms 2010),
by delivery to the Purchaser or its duly authorised agents of the bills of
lading, airway bill or other document in respect of the Goods; or
(ii) in the case of FOB contracts (as defined in Incoterms 2010), by
delivery to the ship or aircraft at the place of export or to the specified
carrier or its duly authorised agent of the Goods and to the confirming
house or its agent of the bills of lading, airway bill or other document in
respect of the Goods.
(d) Notwithstanding that the stated price may include the cost of carriage
from the Company’s Premises the risk in the Goods sold shall pass to the
Purchaser upon their transfer at such Premises onto the carrier’s or
Purchaser’s transport save that where the contract is stated to be CIF,
FOB and CFR the risk shall pass to the Purchaser when the Goods are
delivered onto the ship or aircraft.
(e) The Purchaser shall keep the Goods fully insured against all risks
normally insured against at least throughout the period between the risk
therein passing to the Purchaser and the property therein ceasing to
remain with the Company.
(f) Upon delivery of the Goods in each case the Purchaser shall sign the
Company’s delivery note and check the consignment. Please note: If the
Goods are not delivered or upon delivery are found to be damaged or
short the Company shall not in any event be liable unless:
(i) the Purchaser gives written notice to the Company and to the carrier
within two working days of the date of delivery and
(ii) in the case of short or damaged delivery the Purchaser gives the
Company or its representative(s) a reasonable opportunity to inspect
the Goods concerned in the state and condition and location in which
they were delivered.
(g) The Purchaser shall inspect the Goods for shade and quality and accept
the Goods before they are installed, no claims will be considered after the
Goods have been installed.
(h) When the Goods are delivered or shipped in lots or by instalments the
contract for the Goods shall be construed as a separate contract in
respect of each lot or instalment subject to these conditions and subject to
any special conditions incorporated in the contract in writing.
(i) If 10 Business Days after the day on which the Company notified the
Purchaser that the Goods were ready for delivery the Purchaser has not
accepted delivery of them, the Company may resell or otherwise dispose
of part or all of the Goods
5. PROPERTY
(a) Notwithstanding delivery of the Goods or of any documents representing
the Goods the property in each item of the Goods shall remain with the
Company until receipt by the Company of payment in full in cleared in
funds for each such item, and until the receipt by the Company of
payment in full of any other sum from time to time owing to the Company
on any account whatsoever.
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(b) The Purchaser shall (unless otherwise agreed by the Company in
writing) ensure that all Goods which are in the possession or control of
the Purchaser and the property in which remains with the Company are
stored separately and that they are labelled so that they may be readily
identified as property of the Company.
(c) Subject to condition 11(b) (i) the Purchaser may sell any item of the
Goods prior to the Company receiving payment in full for such item and in
such event:-
(i) the Purchaser shall hold on trust for the Company and shall account to
the Company for the proceeds of sale of such item; and
(ii) until payment to the Company in full for such item the Purchaser shall
maintain such proceeds of a sale in a separate bank account.
(d) The Purchaser may resell or use the Goods in the ordinary course of its
business (but not otherwise) before the Company receives payment for
the Goods. However, if the Purchaser resells the Goods before that time:
(i) it does so as principal and not as the Company’s agent; and
(ii) title to the Goods shall pass from the Company to the Purchaser
immediately before the time at which resale by the Purchaser occurs.
(e) If before title to the Goods passes to the Purchaser the Purchaser
becomes subject to any of the events listed in clause 12(a)(i) to 12(a)(viii)
inclusive then, without limiting any other right or remedy the Company
may have:
(i) the Purchaser's right to resell the Goods or use them in the ordinary
course of its business ceases immediately; and
(ii) the Company may at any time:
(1) require the Purchaser to deliver up all Goods in its possession which
have not been resold, or irrevocably incorporated into another
product; and
(2) if the Purchaser fails to do so promptly, enter any premises of the
Purchaser or of any third party where the Goods are stored in order to
recover them.
6. SPECIFICATIONS, DESCRIPTIONS AND CATALOGUES
Please note the following important provisions:
(a)The Purchaser shall be responsible to the Company for the accuracy of
any order and specification submitted by the Purchaser. Only
specifications accepted in writing by the Company will form part of the
contract for the Goods. The Purchaser shall be responsible for supplying
to the Company all pertinent information relating to the supply of the
Goods (including but not limited to the purpose for which the Goods are to
be used). It is the Purchaser's responsibility to check the suitability of the
Goods prior to order
(b) All drawings, descriptive matter, descriptions, specifications, ,
photographs, physical examples, advertising and any other data issued
by the Company and any descriptions or illustrations contained in the
Company's catalogues, brochures or price lists are issued or published for
the sole purpose of giving an approximate idea of the Goods described in
them and only being intended to serve merely for guide purposes only
and no warranties or representations are given by the Company in
respect of the same of the above. The Company is not responsible for
any images or statements contained within any brochure or website
produced or controlled by a third party including (but not limited to) the
manufacturer of the Goods.
(c) Where a sample of the Goods is supplied or is inspected or is shown to
the Purchaser such sample is provided for the sole purpose of giving an
approximate idea of the Goods and for guide purposes only, the
Purchaser shall not rely upon any representation or description
concerning sample of any Goods supplied unless reference is made
thereto overleaf.
(d) Accordingly the Company shall not be liable for the accuracy of any
information or samples referred to whether in 7(a) (b)or(c) or otherwise
and such information and samples will not form part of the contract and
the contract shall not be a sale by description or a sale by sample as
defined in s 13 and s15 of the Sale of Goods Act 1979.
(e) It is the Purchaser’s responsibility to specify certification requirements at
the time of ordering.
(f) Where the Goods are hand made or comprise of natural materials, the
Goods may vary in accordance with reasonable natural tolerances, (e.g
appearance of or in dimension (including crazing) from the specification or
order made by the Purchaser) and the Purchaser irrevocably and
unconditionally waives it's right to make any claim against the Company in
respect of any such variations.
(g) The Company reserves the right to substitute alternative Goods where
necessary and to make changes to any specifications provided that such
substitutions or changes are minor (i.e. do not materially alter the quality
or performance of the Goods) or which are required to comply with any
applicable Statute, Statutory Instrument or regulatory requirements.
7. WARRANTY AND GENERAL LIABILITIES
Please note the following important provisions:
(a) The Company warrants that Goods supplied are free from substantial
defects in materials and workmanship PROVIDED ALWAYS that
(i) the Purchaser notifies the Company in writing of the alleged defects as
soon as it becomes aware of them and in any event within two weeks
from the date of delivery;applied to any other Goods, property or land,
AND the Purchaser therefore acknowledges that it must take steps to
inspect all Goods supplied immediately upon delivery.
(ii) the Purchaser returns the allegedly defective Goods to the Company
carriage paid; and
(iii) the Company’s liability under this warranty is limited to the repair of the
defect or; at the discretion of the Company, the provision of replacement
Goods or the refund of the price paid for the defective Goods; and
(iv) any liability on the part of the Company shall cease upon any of the Goods
supplied being blended or mixed with other Goods or upon any
manufacturing or other process being applied thereto, or upon the Goods
being affixed or
(b) The Company does not exclude or restrict its liability for death or personal
injury to the extent that it results from the negligence of the Company or its
employees or agents, or for fraud or fraudulent mis-statement nor in any other
circumstance forbidden by law.
(c) Save as provided in sub clauses (a) and (b) the Company hereby
excludes to the fullest extent permitted by law, all other liabilities
(including liability for its negligence) and all other warranties and
conditions whether express or implied and whether arising by common
law statute or otherwise other than those relating to title to the goods. In
particular but without limitation of the foregoing the Company shall not be
liable for the failure of any Goods supplied to be fit for any particular
purpose for which they are required or to comply with any laws, rules or
regulations as regards their use or subsequent re-sale.
(d) Subject to 7(b) above, the Company shall not be liable for: any indirect
or consequential loss injury or damage of any nature whatsoever; any
loss of profit (direct or indirect); loss of business; depletion of goodwill; or
other costs, claims or expenses of an indirect or consequential nature
arising out of or in connection with this agreement or any Goods supplied.
(e) Without in any way limiting the effect of the foregoing the Purchaser
acknowledges that the provisions of this clause are reasonable having
regard to the fact that the Purchaser has either inspected the Goods prior
to the conclusion of the contract, or has decided at its own risk not to
inspect the Goods; and furthermore the Purchaser accepts that it should
procure insurance cover for such risks as the Purchaser considers are of
importance to it.
8. RETURNS
The Company has absolute discretion whether it accepts Goods returned
by the Purchaser. Goods supplied for special orders cannot be returned. If
Goods are returned they may be only accepted if they are for full cartons
only within 30 days from invoice date. Goods that are accepted as returns
will be subject to a 20% restocking charge.
9. INDEMNITIES
Please note the following important provisions:
The Purchaser shall be solely responsible for and shall keep the Company
indemnified against any loss, liability or expense arising directly or indirectly
from the negligent, wrongful, or inappropriate (including a failure to follow
manufacturer’s instructions) use or re-sale of the Goods.
10. FORCE MAJEURE
The Company shall be entitled to cancel or rescind any contract without
liability for loss or damage resulting there from if the performance of its
obligations under the contract is in any way adversely affected by any
circumstances beyond its reasonable control, including but not limited to
war, strike, lockout, sit-in, trade dispute, flood, accident to plant or
machinery, shortage of any material or labour or any other cause
whatsoever beyond the Company’s control.
11. ASSIGNMENT
The Purchaser shall not assign this Agreement or any rights hereunder in
whole or in part without the prior written consent of the Company.
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12. DEFAULT
(a) The Company may by notice in writing to the Purchaser terminate any
contract for Goods forthwith if:-
(i) the Purchaser shall commit any breach of any of these terms and
conditions (including without limitation terms concerning the time for
payment of the purchase price) or other terms of that or any other
contract with the Company PROVIDED if such breach is remediable
that the Company has previously given to the Purchaser notice thereof
and the same has not been remedied within seven days thereafter;
(ii) if an order is made or a resolution is passed for the winding up of the
Purchaser or circumstances arise which entitle a Court of competent
jurisdiction to make a winding-up order of the Purchaser; or an order is
made for the appointment of an administrator to manage the affairs,
business and property of the Purchaser or documents are filed with a
court of competent jurisdiction for the appointment of an administrator of
the Purchaser or notice of intention to appoint an administrator is given
by the Purchaser or its directors or by a qualifying floating charge holder
(as defined in paragraph 14 of Schedule B1 to the Insolvency Act
1986); or
(iii) a receiver is appointed of any of the Purchaser’s assets or
undertaking or if circumstances arise which entitle a court of competent
jurisdiction or a creditor to appoint a receiver or manager of the
Purchaser or if any other person takes possession of or sells the
Purchaser's assets; or
(iv) the Purchaser makes any arrangement or composition with its
creditors or makes an application to a court of competent jurisdiction for
the protection of its creditors in any way; or
(v) the Purchaser is, or is reasonably considered to be unable to pay its
debts when they fall due as defined in Section 123 of the Insolvency Act
1986; or
(vi) any distraint is levied against the Purchaser or its property by any
third party;
(vii) if the Purchaser ceases, or threatens to cease, to carry on business.
(viii) the Purchaser's financial position deteriorates to such an extent that
in the Company's opinion the Purchaser's capability to adequately fulfil
its obligations under the Contract has been placed in jeopardy.
(b) In the event of any such termination:-
(i) the Company shall be entitled to repossess any Goods which are in the
possession or control of the Purchaser and the property in which
remains with the Company and for such purpose to enter into and upon
the premises of the Purchaser and the Purchaser shall cease to be
entitled to sell any Goods supplied by the Company which have not yet
been paid for; and
(ii) the Company shall be entitled by notice in writing to the Purchaser to
declare (and there shall forthwith become) immediately due and
payable any amounts outstanding from the Purchaser to the Company
under that or any other contract and all such amounts shall bear interest
at the rate set out in Condition 3 above, calculated from the date of the
notice until actual payment.
(c) Without limiting its other rights or remedies, the Company may suspend
provision of the Goods under the Contract or any other contract between
the Purchaser and the Company if the Purchaser becomes subject to any
of the events listed in clause 12(a)(i) to clause 12(a)(viii), or the Company
reasonably believes that the Purchaser is about to become subject to any
of them, or if the Purchaser fails to pay any amount due under this
Contract on the due date for payment.
(d) The provisions of (a) and (b) above and the exercise by the Company of
its rights thereunder are without prejudice to any other rights of the
Company.
13. LIEN
Please note the following important provision: The Company shall have a
general lien over all and any Goods or property belonging to the Purchaser which
is in possession of the Company from time to time in respect of all and any sums
due from the Purchaser to the Company and shall be entitled to exercise such
lien by selling such goods or property and applying the proceeds of sale against
any sum so due at any time following the expiry of 7 days’ notice to the
Purchaser demanding payment thereof.
14. PROCESSING
(a) In relation to any agreement made with the Purchaser which involves
processing of property or goods belonging to the Purchaser (or a third party)
such agreement is made on the assumption that such goods or property are
suitable for processing on the Company’s plant. If this proves not to be the
case the Company reserves the right to cancel or renegotiate the agreement
and the purchaser shall have no claim whatsoever against the Company in this
regard.
(b) Where an agreement involves work upon materials supplied by the Purchaser
the Company shall use reasonable care to remove contaminating matter
therefrom but shall have no liability whatsoever (whether for negligence or
otherwise) arising out of the presence of such contamination.
15. GENERAL
(a) Notices to be served hereunder shall be served on the relevant party at its
address shown on the order form, invoice or other relevant documents or such
other address as may be notified in accordance with this clause or (in the case
of a company) its registered office for the time being or (in the case of a
Purchaser not being a company) its principal place of business for the time
being, by pre-paid first class post (if in the United Kingdom) or prepaid airmail
(if outside the United Kingdom) and such notices shall be deemed to have
been duly served 2 days (7 days in the case of airmail post) after the same has
been put in the post properly addressed.
(b) The headings used in these Terms and Conditions are for convenience only
and shall not affect the construction thereof.
(c) If for any reason any wording in any part of these conditions is rendered or
held by a Court to be unreasonable, void or unenforceable then such offending
wording shall be deemed severable from the remaining wording in such part of
these conditions, and the remainder of such wording shall continue to have full
force and effect.
(d) no forbearance or indulgence on the part of the Company in enforcing any of
these Conditions shall prejudice its strict rights hereunder or be construed as a
waiver thereof.
(e) All contracts shall be construed in accordance with English Law and where
the Purchaser is based in the United Kingdom, the Company and the
Purchaser hereby submit to the exclusive jurisdiction of the English Courts,
and otherwise to the non-exclusive jurisdiction of the English Courts.
(f) A person who is not a party to the Contract shall not have any rights to
enforce its terms.