In these conditions:
the “Seller means
H & R Johnson Tiles Ltd
the “Buyer” means
the customer of the Seller
the “Contract” means
any contract entered into for the supply of Goods by the Seller to the Buyer
the “Goods” means
the products forming the subject matter of any Contract including (where the context so admits) services
2.1 Contractual terms
These conditions shall apply to all Contracts
to the exclusion of any terms and conditions referred to by the Buyer. Acceptance of any delivery or performance by
or on behalf of the Buyer shall in any event be conclusive evidence of the Buyer’s acceptance of these conditions.
2.2 All drawings, illustrations, performance
data and other details in the Seller’s catalogue, sales or promotional literature or elsewhere are included as a guide
only, and while such details are printed in good faith they shall not bind the Seller. The Seller reserves the right
to change specifications without prior notice at its absolute discretion. Colours shown in the Seller’s literature
are as close to actual tiles as printing processes will allow. No Contract shall constitute a sale by sample and notwithstanding
that any Goods may have been exhibited or inspected by the Buyer.
or clerical errors or iiiiiiiomissions shall be subject to correction without iiiiiiiliability on the part of the Seller.
3. Creation of contractual relations
Unless previously withdrawn the Seller’s
quotations and tenders shall remain valid for the period stated therein or if no period is stated for 30 days from their date.
The Seller’s offers, estimates, quotations, tenders and price lists are invitations to treat only. All orders must be
accompanied by sufficient information to enable the Seller, if the order is accepted, to proceed without delay with the execution
of the order. All Contracts shall be subject to the Buyer’s credit being approved and to cancellation without
liability of the Seller should the Seller subsequently find the Buyer’s credit inadequate.
Unless otherwise specified all prices quoted
by the Seller are ex works prices and do not include Value Added Tax where applicable (which will be added at the rate prevailing
at the date of invoice) or any other taxes or duties of whatever kind.
4.2 The Seller’s prices unless otherwise
stated and subject to sub clause 4.1 hereof are those in its price lists in force at the date of despatch of the goods.
The Seller reserves the right to adjust the prices of Goods for any costs incurred by the Seller after the date on which they
were quoted, as a result of any fluctuations in the cost of materials, equipment, transport or utilities arising from whatsoever
cause, any alterations in the specifications, quantities or times of delivery (as applicable) or any Goods or any suspension
of work requested by the Buyer or any delay in the supply by or on behalf of the Buyer of any instructions data or materials
or other matter of whatever kind or any inaccuracy, insufficiency or defect therein.
4.3 In cases where quotations or tenders
have been submitted by the Seller (whether on a “firm price” basis or otherwise) prices quoted only apply in respect
of the quantities of Goods stated in the quotation. If the Buyer requests any variation in quantity the Seller reserves
the right, in its absolute discretion, to vary the price accordingly.
4.4 Notwithstanding clause 7.6 below in
respect of prices specified in any published price list of the Seller the prices for specific quantities as set out in such
price list will only apply in cases where the quantity concerned is to be despatched in one consignment to one address.
If the Buyer requires split deliveries the Seller reserves the right, in its absolute discretion, to vary such prices accordingly.
Unless otherwise agreed in writing payments of
all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and
confirmed by a bank acceptable to the Seller.
Notwithstanding the earlier passing of risk and
without prejudice to any other rights of the Seller until payment in full of the price of the Goods sold by the Seller to
the Buyer and of all other debts for goods and services owed to it by the Buyer on any account has been received by the Seller
in cash or cleared funds ownership of the Goods shall remain with the Seller and not pass to the Buyer (who shall nevertheless
subject to the conditions stated below, be entitled to resell them as principal only and to use then in the ordinary course
6.2 Until title passes:
6.2.1 the Buyer shall hold the Goods or
any part thereof as bailee for the Seller and ensure that they are at all times readily identifiable as the property of the
Seller and during such time the Buyer shall ensure that the Goods are kept and maintained in the condition in which they were
6.2.2 the Seller shall be entitled at any time to:
126.96.36.199 repossess, remove from other equipment (without being liable
for any damage thereby occasioned) and sell all or any of the Goods and thereby terminate (without liability to the Buyer)
the Buyer’s right to use or sell them; and
188.8.131.52 enter any premises where the Goods are located for the purpose
of inspecting or repossessing them.
6.3 The Seller shall, without prejudice
to any other remedy, be entitled to maintain an action for the price of the Goods although title in them has not been passed
to the Buyer.
6.4 The Seller transfers to the Buyer only
such title and rights of use as the Seller has in any Goods and in the case of material provided by any third party shall
transfer only such title and rights of use as that party had and has transferred to the Seller.
Goods shall be deemed delivered and risk in them
shall pass to the Buyer when they are made available at the Seller’s premises or at another named delivery point agreed
in writing by the Seller.
7.2 The Buyer shall be responsible for:
7.2.1 obtaining (at its own risk and expense) any export
or import licences or other official authorisations which may be required; and
7.2.2 carrying out (where applicable) all customs authorisations
for the export of the Goods.
7.3 Time of delivery shall not be of the
essence of the Contract. The period (if any) quoted for a delivery commences from the date of receipt of the Buyer’s
order but is an estimate only. Whilst the Seller shall use reasonable commercial endeavours to deliver the Goods by
the date (if any) specified it shall not be liable in any way for any loss, damage or expense arising from any delay or failure
in delivery on performance from any cause whatsoever or howsoever arising nor shall such a delay or failure entitle the Buyer
to refuse to accept any delivery or performance or treat the Contract as repudiated or render the Seller liable for damage
in any way. The Buyer shall inspect the Goods on delivery to ensure that they are in accordance with the order.
7.4 It is the Buyer’s duty to inform
the Seller of the detailed delivery arrangements, as applicable, (including but not limited to details of any restrictions
in respect of off-loading and vehicle access) in advance of the consignment leaving the Seller’s premises and to provide
the warning and notice of any changes in such arrangements.
7.5 The trade terms referred to in clause
4.1 or otherwise agreed in writing between the Seller and the Buyer shall, to the extent consistent with these conditions,
be as defined in the edition of “Incoterms” then current. Sections 32(2) and (3) of the Sale of Goods Act
1979 shall not apply to any Contract.
7.6 The Seller may deliver the Goods by
instalments each of which shall be deemed the subject of a separate Contract and, unless otherwise agreed in writing, no failure
by the Seller in any one or more instalments shall entitle the Buyer to repudiate any Contract for Goods previously delivered
or to refuse to accept any undelivered goods.
8.1 Non-acceptance by the Buyer
If by reason of the Buyer’s default the
Goods or any of them have not been taken up or (if applicable) delivered by any date specified for such taking up or delivery
or the Buyer has failed to provide adequate delivery instructions then:
8.1.1 the Buyer shall nevertheless pay the Seller in accordance
with clause 5 of these conditions as if such taking up or delivery had occurred; and
8.1.2 the Seller reserves the right to store
the Goods and to require the Buyer to pay the Seller a storage charge in respect of any of the Goods which have not been taken
up or delivered together with the cost of any additional handling and transport or any other charges incurred by the Seller.
In the event that such storage by the Seller shall continue for a period exceeding six weeks the Seller may (without prejudice
to any other rights which may have accrued) treat the contract as repudiated.
8.2 During the period of any storage of
the Goods or any of them by the Seller as contemplated by sub-clause 8.1:2 above such Goods shall be at the risk of the Buyer.
8.3 No Goods will be supplied by the Seller to the Buyer
on a sale or return basis.
8.4 Unless otherwise agreed in writing by the Seller the
Seller will not accept the return of any Goods.
9.1 Inspection and loss or damage in transit
The Buyer shall be responsible for arranging
for inspection of the Goods at the Seller’s premises or (as applicable) at the agreed named point of delivery before
9.2 Subject to clause 9.3 below the Seller
shall have no liability in respect of any loss of, damage to or shortage of Goods unless the Buyer has given written notice
of the claim to the Seller:
9.2.1 (in the case of shortage, loss or damage which is
not reasonably detectable on inspection by the Buyer pursuant to clause 9.1) within 24 hours of delivery;
9.2.2 (in the case of shortage, loss or
damage which is not reasonably detectable on inspection pursuant to clause 9.1) immediately on such discrepancy becoming apparent
and in any event within 3 working days of receipt of the consignment.
9.3 Notwithstanding clause 9.2 above the Seller shall
have no liability for any loss, shortage or damage to Goods whatsoever which occurs during transit.
10.1 Cancellation and variation
Without prejudice to clause 10.2 below no cancellation
or variation of any order or of any Contract by the Buyer shall be effective unless made in writing and until accepted in
writing by an authorised officer of the Seller at its registered office. The Seller reserves the right to refuse to
accept such cancellation or variation or to accept cancellation or variation only subject to such conditions as the Seller
may determine. Acceptance by the Seller shall be subject to payment by the Buyer of such cancellation or variation charges
as the Seller shall deem reasonable. Such charges shall take into account expenses incurred and commitments made by
the Seller and all other losses due to cancellation or variation.
10.2 Notwithstanding clause 10.1 above,
in respect of Goods which are supplied “made to order” the Buyer in respect of Goods that the Seller will not
accept any cancellation for such orders whatsoever and that the Buyer is responsible for all charges associated with such
11. Force majeure
Should any event whatsoever occur whether at
the Seller’s premises or elsewhere which is beyond the control of the Seller existing at the date of the Contract or
arising thereafter including but not limited to breakdown or failure of plant or machinery, lack or failure of transportation
facilities, supply of labour, materials, power or supplies, strike, labour dispute or lock out (whether or not at the Seller’s
works) act of God, war, civil commotion or restriction of any authority or governmental agency, fire, explosion flood, drought,
illness, epidemic, as a result of which the performance of this contract is prevented or delayed:
11.1 without prejudice to any other of its
rights the Seller reserves the right to cancel delivery or other performance of the Seller’s obligations under any Contract
in whole or in part and in the event of the Seller exercising such right the Seller’s liability shall be limited to
the repayment to the Buyer (without interest) of any part of the purchase or Contract price or charge already received by
the Seller and attributed to any unfulfilled and cancelled part of the Contract less any expenses incurred by the Seller to
the date of cancellation in part performance of the Contract.
11.2 If such prevention or delay continues
for 60 days or more the Buyer may elect either to cancel the Contract or to allow the order to remain on the books of the
Seller and to be completed at some later date at an adjusted price to be determined by the Seller.
12.1 Guarantee and limitation of liability
In general the Seller’s wall tile products
comply with British Standard 6431:Pt9 (as current at the date of printing of these conditions), with the exception that some
glazes, particularly the heavier more reactive effects, used to achieve maximum depth of colour and character are subject
to crazing. This feature is an inherent characteristic of these glazes, and the Buyer confirms knowledge of this and
undertakes to bring this to the attention of its customers and to indemnify the Seller against all losses, costs, damages
and expenses which the Seller may suffer as a result of its failure to do so. Dust pressed floor tile products comply
with British Standard 6431:Pt6 (as current at date of printing of these conditions).
- The Seller shall have no liability for:
12.2.1 any Goods which have been installed,
used, maintained, serviced or stored otherwise than by the Seller or in accordance with its recommendations (or the recommendations
of any supplier of any item with which the Goods are used) or have suffered any excessive wear, misuse, neglect or accident.
12.2:2 any accessories or proprietary parts
or fittings and if any item which is not of the Seller’s manufacture is alleged to be defective, the Seller’s
liability shall be limited to assigning to the Buyer (so far as it is able to do so) any warranty given by the manufacturer
of that item;
12.2:3 any Goods which have been modified
or interfered with in any way or have undergone any further manufacturing or decorating processes or with regard to which
any part not of the Seller’s manufacture or supply has been used in each case without the Seller’s prior written
approval or the Buyer has failed to carry out any modification or improvement recommended by the Seller;
12.2:4 any Goods whose serial number or other identification
mark or plate has been removed, defaced or tampered with;
12.2:5 any costs (including labour) of removing
any Goods forming the subject of any claim which has been accepted by the Seller or the refitting of any repaired or replacement
items or any taxes, duties or similar charges payable in connection with the transportation to the Buyer of any replacement
12.2:6 any discrepancy which results from
any design, specification, advice, information, details or materials (including “free issue” items) supplied by
or on behalf of the Buyer;
12.3 The Seller makes no representation
or warranties in relation to the Goods other than those contained in this clause 12. All other conditions express or
implied in respect of the Goods or their use are hereby excluded.
12.4 Except to the extent stated in these conditions or
otherwise agreed in writing by it;
12.4:1 the Seller shall have no obligation,
duty or liability in contract, tort (including negligence or breach of statutory duty) or otherwise however under or in connection
with the contract other than for death or personal injury resulting from its negligence or for fraud on the part of its officers
or employees whilst acting in the course of their duties;
12.4:2 in particular the Seller shall have
no liability for any consequential loss or damage suffered directly or indirectly by the Buyer under or in connection with
the Contract, including but not limited to wasted time or expenditure, loss of profits, production, business revenue, expected
savings or goodwill or any claim against the Buyer by any person and the Buyer shall be solely responsible for any such claim..
12.5 The Seller shall be discharged of all
liability to which these conditions apply unless proceedings are begun within twelve (12) months after the Buyer became aware
(or should reasonably have become aware) of the facts giving rise to such liability.
12.6 Without prejudice to the provisions of clauses 12.1,
12.2, 12.3 and 12.4, the Seller wishes to draw the following additional matters to the Buyer’s attention:
12.6:1 No guarantee is given against variation
in shades and patterns of different batches of wall tiles or against variation in size, shades and patterns of different batches
of floor tiles manufactured by the Seller. To ensure that tiles purchased give an acceptable random blend of colour
the Buyer is recommended to mix the contents of several packs of tiles in cases where more than one pack is purchased.
No responsibility will be accepted by the Seller once tiles have been fixed.
12.6:2 Bronze glaze effect, while perfectly
suitable for normal domestic uses, is subject, because of its metal content, to discolouration under certain conditions.
It should not therefore be used for work surfaces, external applications, or in any circumstances where fumes or atmospheric
conditions can affect the glaze.
12.6:3 Wall tiles are not suitable for use in any external
application where freezing temperatures can be expected.
12.6:4 The Seller recommends that the wall tiles are fixed
in accordance with the advice contained in British Standards BS5358:Pt.4 as appropriate.
12.7 To minimise the risk of scratching the glazed surface
of the tiles abrasive materials should be avoided when tiles are fixed or cleaned.
13. Intellectual property
All documents, drawings, designs or other data
(whether or not patentable or patented) and all rights therein (including copyright and design rights) and all materials,
tools, patterns or other items prepared or made available by the Seller for the Contract shall, unless otherwise agreed by
the Seller, be and remain the Seller’s property and the Buyer shall not copy or reproduce the same in whole or in part
in any form or allow others to do so.
If the Buyer fails to make any payment when and
as due or otherwise defaults in any of its obligations under the Contract or any other agreement with the Seller, is unable
to pay its debts in the ordinary course of its business, has a receiver, manager, administrator or administrative receiver
or trustee in bankruptcy (as the case may be) appointed for all or any part of its undertaking, assets or income, has a resolution
passed for its winding up (compulsorily or voluntarily), enters into any composition or arrangement with its creditors (whether
formal or informal), has any distraint or execution levied on any of its assets, suffers any action similar to any of the
foregoing in any jurisdiction or ceases to trade or the Seller bona fide believes that any of the foregoing matters that occur,
then, in any such event, the Seller shall, without prejudice to any other remedy be entitled at its discretion, without liability
to the Buyer, by giving the Buyer written notice at any time or times to suspend its performance of or (whether or not such
performance has previously been suspended) terminate such Contract.
The rights of the Seller shall not be prejudiced
or restricted by any indulgence or forbearance extended to the Buyer and no waiver by the Seller in respect of any breach
shall operate as a waiver in respect of the same or any subsequent or other breach.
Any provisions of these conditions which in any
way now or subsequently contravene the law shall be deemed severable and shall not affect any other provisions herein.
The Seller may at its discretion sub-contract
all or any of its obligations under the Contract but the contract shall not be assigned by the Buyer without the Seller’s
prior written consent.
The Buyer shall treat the
Contract and all information which it acquires thereunder as confidential.
18. No Contract shall create any rights enforceable by
any third parties.
19. The Buyer authorises the Seller to carry
out checks (including enquiries relating to directors and other individuals) with credit reference agencies and to keep a
record of that search and to make available to such agencies information relating to the conduct of the Buyer’s account,
and the Buyer acknowledges that the agencies concerned may keep and share the information supplied to them with other businesses
in assessing applications for credit and/or fraud prevention.
20. Governing Law
The Contract shall be governed by the laws of
England and shall be subject to the exclusive jurisdiction of the English Courts save to the extent that the Seller invokes
the jurisdiction of the Court of any other country or state.
Any notices required to be served under the Contract
shall be deemed to be properly served if sent by prepaid registered or recorded delivery post to the last known address of
the party to be served and shall be deemed to be duly served the second day following the date of posting.
22. Clause Headings
The Clause headings
or these conditions are for convenience of reference only and shall not affect the interpretation of these conditions.
H & R Johnson Tiles Limited
Registered Office, Harewood Street, Tunstall,
Stoke on Trent, ST6 5JZ
Registered in England number 00307859
Issued: [ ] 2004