1 . DEFINITIONS AND CONSTRUCTION
1 . 1 DEFINITIONS
Unless the context otherwise requires, the following words and expressions shall have the following meanings:
Means Tilex Limited, a private company incorporated and registered in Republic of Ireland with Registration Number 719758 and having its registered Office at Unit 12C, Robinhood Industrial Estate, Ballymount, Dublin 22, D22 E894, Ireland.
Means the buyer/purchaser who use the Product or service of Tilex Ireland.
Means the natural and man-made elements used by the Company in the manufacture of the Product. For the avoidance of doubt, the plural shall also include the singular (“Material”).
Means any product manufactured or supplied by the Company which is composed of or contains elements of natural granite, marble, or any other stone.
Means such tiles, stone, laminate, Mirrors, Bathroom fittings, Sanitary wares, wood and such other items as may from time to time supplied by the Company and offered to the Customer. For the avoidance of doubt, the singular shall also include the plural (“Products”).
Means such trademarks, copyrights, technology rights and similar rights arising from or relating to the Product or Products.
Means the location at which the Product shall be installed as advised by the Customer.
Means the terms and conditions set out in this document.
Means any suppliers of products or services to the Customer who are not part of the Company.
In this Agreement words such as “hereunder”, “hereto”, “hereof” and “herein” and other words commencing with “here” shall, unless the context clearly indicates to the contrary, refer to the whole of this Agreement and not to any particular Section or Clause thereof.
Any reference in this Agreement to a document includes that document as amended, substituted, restated or novated from time to time.
Any reference to any provision of any legislation shall include any modification reenactment or extension thereof and shall also include any subordinate legislation made from time to time under such provision. Any reference to any provision of any legislation, unless the context clearly indicates to the contrary, shall be a reference to legislation of Ireland.
In this Agreement, the masculine gender shall include the feminine and neuter and the singular number shall include the plural and vice versa. References to persons shall include natural persons, firms, bodies corporate, unincorporated associations and partnerships, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality).
Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
These Terms shall apply to the supply of the Products by the Company to the Customer. The Customer agrees that these Terms shall apply and that no other terms, conditions, warranties or representations apply to its relations or commercial arrangements with the Company.
These Terms shall be deemed to have been accepted by the Customer upon the earlier of: -
The Company shall use its best endeavors to ensure that orders are dispatched to the Customer promptly. All orders are subject to Product availability, and the Company will not be liable for loss or damage of any kind caused by a delay in supply to the Customer, where that delay is outside the control of the Company.
Customer is solely responsible for verifying on-Site measurements and fit, and the Company accepts no liability whatsoever for any errors or omissions caused by the negligence or omission of the Customer in the provision of incorrect measurements, dimensions, thicknesses and specifications by the Customer.
The Customer further acknowledges and accepts that any quotations provided by the Company are valid for 7 days unless otherwise noted and all pricing will be based on final measurements only, as estimates do not always match actual measurements.
The Customer shall agree to make payment of the Company’s invoices in accordance with the terms of the Company or as per the terms agreed between the customer and the Company in writing. In the absence of such an agreement in writing it shall be presumed that the customer has agreed to the general payment terms of the company i.e. to pay the full invoice value within 7 days from the invoice. Such payments shall be made by cheque or electronic transfer or as the Company shall direct.
For the avoidance of doubt the price to be agreed between the Customer and the Company does not include the charges for any service or services which are quoted and billed separately by the Company.
The Customer is not entitled to set off against any of the Company’s invoices for the Products any money owed by the Company to the Customer.
If the Customer is late in paying any of the Company’s invoices then the provisions of the EU Regulations (Late Payments in Commercial Transactions) 2012 shall apply and the Company shall be entitled to sue the Customer for all outstanding sums validly due and owing to the Company.
Until the Company receives full payment in respect of any overdue invoices for the Products, title in and to the Products shall not pass to the Customer and the Company shall be entitled to refuse to provide any further Products to the Customer until all outstanding sums due to the Company are paid. The Company shall also be entitled to take back its Products from the Customer which may involve the cancellation of ordered Product or the withholding of ordered Product.
The Customer shall not be entitled to delay or withhold any payment to the Company for any delay arising from the non-performance or non-delivery by any Third Party Suppliers or contractors.
The remedies available to the Company under these Terms are additional to its general rights and remedies under statute and by law.
The Customer acknowledges and accepts that if payments are made to the Company by cheque, no Product will be supplied until cleared funds are available to the Company.
The Customer acknowledges that the Product is supplied on a strict no-refunds and no-returns basis.
The Company accepts cash payments and payments by credit/debit card.
In the event that the Company agrees to accept returns from a customer, a restocking charge of 25% will apply
The Company hereby covenants that it shall use its reasonable efforts to ensure that the materials are dispatched to the Customer in a timely and prompt manner, and that the Product furnished shall be of good merchantable quality and free from obvious defect to the extent reasonably possible given the nature of the Product.
The Customer hereby covenants that it shall: -
Provide accurate information to the Company to enable the Company to provide the Products to the specifications and measurements desired by the Customer.
Ensure that the commercial sensitivity of the Products is protected. The Customer shall not pass any information regarding the composition, manufacture, make-up, or marketing of the Products is disclosed to any third party.
Title to and ownership of the Products shall at all times remain exclusively with the Company until such time as payment in full for the Product is received by the Company.
Title to and ownership of the Intellectual Property and promotional materials or promotional items and/or programs produced solely by the Company for the promotion of the Product or Products shall at all times be owned by the Company.
The Customer shall not rely on any representations or quotations which are not confirmed by the Company in writing. By accepting these Terms, the Customer irrevocably waives any right to claim damages from the Company or to rescind these Terms as a result of any representation whether or not contained in these Terms.
With regard to the supply of tile Product, it is the responsibility of the Customer to ensure that it has selected the desired shade/tone. The Company shall not be liable for errors on the part of the Customer in this regard, and the Company is not liable to make good any loss suffered by the Customer as a result of such errors.
With regard to Natural Stone Tile Product, the Customer agrees and accepts that there will be minor variations in the Product owing to the naturally-occurring substances inherent in the composition of the Product. The Customer agrees and accepts that such variation, where occurring, is a part of the Product, and does not in any way constitute a flaw or defect.
Company will not provide insurance cover against Products which are lost, damaged or stolen while in the care of the Customer. The Company will not be liable for post-supply damage to the Product caused by invasion or encroaching of tree roots, knotweed, animal burrows, or caused by excavation or building works of any kind.
The Company shall not in any circumstances be liable for any indirect, special or consequential loss or damage suffered by the Customer as a result of the Customers’ use of the Product, nor in respect of any loss of profit, loss of business opportunity, wasted overheads or similar costs or losses suffered by the Customer and howsoever caused.
Where an obvious fault is found in the Product supplied the liability of the Company will in all circumstances be limited to the value of the Product supplied. It is the responsibility of the Customer alone to inspect the condition of the Product when taking delivery. The Company will not entertain subsequent claims in this regard, and concerns regarding condition must be reported to the driver employed by the Company immediately. Where bespoke materials have been supplied to the Customer for use on- Site, it is the sole responsibility of the Customer to ensure that the bespoke Product supplied is as ordered and matches desired specifications.
It is the sole responsibility of the Customer to make arrangements for the collection and delivery and unloading of the Product at the destination address. The Company shall not be responsible for any loading on collection or for any loss or damage whatsoever, howsoever caused.
The Company accepts no liability for recommendations provided by the Company based on incorrect or incomplete measurements, dimensions, thicknesses, specifications or other relevant information provided by the Customer to the Company.
The Customer agrees to fully indemnify, keep indemnified, defend (at the Company's request), and hold the Company, its subsidiaries, affiliates, officers and employees, harmless from any claims, demands, losses, expenses (including but not limited to legal expenses) or liability incurred or sustained by the Company or any of its employees and agents, directly or indirectl y, or made or brought by any third party due to or arising out of the following:
Any notice or communication under these Terms required to be served on or given to either the Customer or the Company should be either delivered by hand, sent by first class post to the other party at its operating address(es) or to another address previously notified to the sending party, or sent by e-mail to such domain or e-mail address as it has previously notified to the sending party and should be deemed to have been given when actually received or, if sent by first class post, two full days after posting or, if sent by fax, upon receipt of the relevant fax confirmation sheet or, if sent by e-mail, upon receipt of a reply, acknowledgement or read receipt.
The obligations of the Company under these Terms shall be suspended during the period and to the extent that the Company is prevented or hindered from complying therewith by a Force Majeure Event. In these Terms "Force Majeure Event" shall mean any event beyond its reasonable control which may include but shall not be limited to: (1) acts of terrorism, insurrection, riots, civil unrest and military action; (2) the exercise of emergency powers by any local, regional or national governmental authority; (3) fire, flood, earthquake, storm and other natural disasters; (4) industrial action, strikes and lock-outs; (5) blockage or embargo; and (6) the failure or delay of supplies of power, fuel, transport, equipment, telecommunications systems, Internet or other goods and/or services (including any third party materials).
These Terms and any document referred to in these Terms constitutes the entire understanding between the parties with respect to the subject matter of these Terms and supersedes all prior agreements, contracts, negotiations and discussions between the parties relating to it.
Save as expressly provided in these Terms, no amendment or variation of these Terms shall be effective unless in writing and signed by a duly authorized representative of each of the parties to it.
The failure of a party to exercise or enforce any right under these Terms shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter.
If any provision of these Terms (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
The Customer is solely responsible for ensuring that the Product is collected in a vehicle suitable for and capable of carrying the Product, and one which is forkliftready. The Product is transported at the Customer’s risk once loaded and is carried at the Customer’s own risk.
The Company accepts no liability whatsoever in respect of loss of any nature whatsoever accruing to the Customer arising from delay, failure, or nonperformance of third-party courier or delivery services.
Company may terminate these Terms immediately if: -
These Terms are governed by, and shall be construed in accordance with, the laws of Ireland and the Irish Courts shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any dispute, which may arise out of or in connection with these Terms.
PROVISIONS REGARDING THE BESPOKE NATURE OF THE PRODUCT OR PRODUCTS
The Customer acknowledges and agrees that the following provisions apply in respect of each of the Products listed below: -
The Company accepts no liability in respect of tile Product once affixed by the Customer. The Customer is solely responsible for ensuring that he/she/it is in possession of tiles which are of the desired shade and tone, and that he/she/it is in possession of a sufficient quantity of tiles, as the Company does not guarantee future stock availability. The Customer acknowledges and agrees that any samples provided by the Company are indicative only and may not be identical to current stock. The Company accepts no responsibility for the purchase of incorrect quantities of tile Product purchased by the Customer.
The Customer acknowledges and agrees that wood is a natural substance. The Customer acknowledges and agrees that there may be variations from time to time in the colour and knotting present in the wood.
The Customer acknowledges and agrees that Natural Stone paving is subject to variations in colour and thickness, which are inherent in the Product, and do not constitute a flaw or defect.
The Customer is solely responsible for ensuring that all desired dimensions and finishes are agreed with the Company prior to fit-out. No returns will be accepted in regard to sanitary ware.
The Customer accepts and agrees that owing to the bespoke nature of the Products, there will inevitably be minor differences in how each of the finished Products is presented. The Customer confirms and agrees that such minor differences in appearance arise due to the inherent nature of the Product itself, and such minor differences are in no way defects or flaws in the finished Product.
In some Materials, imperfections, “pitting” and even fossils can be apparent; these are in no way indicative of fault or defect in the Product and are part of the Material selected. All granite, marble and other Materials are sold subject to natural variations in colour, shade, veining and the amount of brecciating; they are stopped, filled, reinforced, etc. in accordance with normal trade practices.
Samples should therefore be looked upon as a colour indication only. When the stone is extracted from the quarry the blocks are not a standard size. If pieces required cannot be cut in one, the Company reserves the right to place a joint in the most appropriate position. The Customer is responsible for the care and maintenance of the Product after delivery, and the Customer is advised to clean and seal Natural Stone Products effectively to avoid damage and staining; and
The Limited Manufacturer’s Warranty shall not be enforceable where the damage to the Product or Products is caused by any of the following: -
