EXITILE TERMS AND CONDITIONS OF SALE

1. DEFINITIONS

1.1 In these Conditions, unless the context permits otherwise:-

“Buyer” the person or company who accepts Exitile’s Quotation for the sale of the Goods or whose Order for the Goods is accepted by Exitile, including Consumer’s;

“Conditions” the standard terms of sale set out in this document and (unless the context otherwise requires) including any applicable special terms agreed in writing betExitileen the Buyer and Exitile;

“Consumer/Buyer” has the meaning given to it under Regulation 4 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013/3134;

“Contract” the contract for the sale and purchase of the Goods;

“Goods” the Goods (including any instalment of the Goods or any parts for them) which Exitile is to supply in accordance with these Conditions;

“Order” means the written order placed by the Buyer requesting the Goods;

“Quotation” means the document or correspondence provided by Exitile to the Buyer setting out the Goods to be provided.

“Exitile” Means the entity specified in the Quotation and/or the Order being Extile Access Ltd] a company registered in England and Wales and whose registered office is at Unit 2, The Coach House, Desford Hall, Leicester Lane, LE9 9JJ and whose company number is 7922814.

1.2 A reference in these Conditions to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. BASIS OF THE CONTRACT

2.1 Exitile shall sell and the Buyer shall purchase the Goods in accordance with Exitile’s Quotation (if accepted by the Buyer), or the Buyer’s Order (if accepted by Exitile), subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms subject to which any such Quotation is accepted or purported to be accepted, or any such Order is made or purported to be made, by the Buyer.

2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and Exitile.

2.3 Exitile’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Exitile in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Conditions affects the liability of either party for fraudulent misrepresentation.

2.4 Any advice or recommendation given by Exitile or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by Exitile is acted on entirely at the Buyer’s own risk, and accordingly Exitile shall not be liable for any such advice or recommendation which is not so confirmed.

2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Exitile shall be subject to correction without any liability on the part of Exitile.

3. ORDERS AND SPECIFICATION

3.1 No Order submitted by the Buyer shall be deemed to be accepted by Exitile unless and until confirmed in writing by Exitile’s authorised representative.

3.2 The Buyer shall be responsible to Exitile for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving Exitile any necessary information relating to the Goods within a sufficient time to enable Exitile to perform the Contract in accordance with its terms.

3.3 The quantity, quality and description of the Goods and any specification for them shall be as set out in Exitile’s Quotation (if accepted by the Buyer) or the Buyer’s Order (if accepted by Exitile).

3.4 Exitile reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to Exitile’s specification, which does not materially affect their quality or performance.

3.5 Subject to clause 11, no order which has been accepted by Exitile may be cancelled by the Buyer except with the agreement in writing of Exitile and on terms that the Buyer shall indemnify Exitile in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Exitile as a result of cancellation.

4. PRICE

4.1 The price of the Goods shall be Exitile’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in Exitile’s published price list current at the date of acceptance of the Order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by Exitile without giving notice to the Buyer.

4.2 Exitile reserves the right to increase the price of the Goods to reflect any increase in the cost to Exitile which is due to any factor beyond the control of Exitile (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Exitile adequate information or instructions.

4.3 Except as otherwise stated in Exitile’s Quotation or in any price list of Exitile, and unless otherwise agreed in writing between the Buyer and Exitile, all prices are given by Exitile on an ex-works basis, and where Exitile agrees to deliver the Goods otherwise than at Exitile’s premises, the Buyer shall be liable to pay Exitile’s charges for transport, packaging and insurance.

4.4 The price is exclusive of any applicable value-added tax, which the Buyer shall be additionally liable to pay to Exitile.

5. PAYMENT

5.1 Subject to any special terms agreed in writing between the Buyer and Exitile, Exitile may invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event Exitile shall be entitled to invoice the Buyer for the price at any time after Exitile has notified the Buyer that the Goods are ready for collection or (as the case may be) Exitile has tendered delivery of the Goods.

5.2 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled but without any other deduction) within 30 days of the date of Exitile’s invoice, and Exitile shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only on request.

5.3 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to Exitile, Exitile may:

5.3.1 cancel the contract or suspend any further deliveries to the Buyer;

5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between the Buyer and Exitile) as Exitile may think fit (notwithstanding any purported appropriation by the Buyer);

5.3.3 charge the Buyer (if the Buyer is a business) interest (both before and after any judgment) on the amount unpaid under the Late Payment of Commercial Debts (Interest) Act 1998;

5.3.4 charge the Buyer 10% of the amount unpaid for third party services engaged for the purposes of recovering the amount unpaid; and

5.3.5 without limitation to 5.3.4, charge the Buyer for any legal fees reasonably and properly incurred in recovering the amount unpaid.

6. DELIVERY

6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at Exitile’s premises at any time after Exitile has notified the Buyer that the Goods are ready for collection or if some other place for delivery is agreed by Exitile when the Goods are delivered to that place.

6.2 Any dates quoted for delivery of the Goods are approximate only and Exitile shall not be liable for any delay or failure of the delivery service in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by Exitile in writing.

6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Exitile to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.4 If the Buyer fails to take delivery of the Goods or fails to give Exitile adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of Exitile’s fault) then, without limiting any other right or remedy available to Exitile, Exitile may store the Goods until actual delivery and charge the Buyer for the reasonable additional costs (including insurance) of storage and redelivery of the Goods.

7. RISK AND TITLE

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1 in the case of Goods to be delivered at Exitile’s premises, at the time when Exitile notifies the Buyer that the Goods are available for collection; or

7.1.2 in the case of Goods to be delivered otherwise than at Exitile’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when delivery of the Goods has been tendered.

7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title in the Goods shall not pass to the Buyer until Exitile has received payment in full and in cleared funds of the price of the Goods and all other Goods agreed to be sold by Exitile to the Buyer for which payment is then due, subject to 7.3.

7.3 Until such time as the title in the Goods passes to the Buyer, the Buyer shall hold the Goods as Exitile’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Exitile’s property.

7.4 Until such time as the title in the Goods passes to the Buyer, Exitile may at any time require the Buyer to deliver up the Goods to Exitile and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

7.5 The Buyer shall not be entitled to pledge, create a lien over or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Exitile, but if the Buyer does so all moneys owed by the Buyer to Exitile shall (without limiting any other right or remedy of Exitile) forthwith become due and payable.

8. WARRANTIES AND LIABILITY

8.1 Exitile shall endeavour to transfer to the Buyer the benefit of any manufacturer’s warranty or guarantee.

8.2 Exitile does make any warranties or guarantees on the Goods. All warranties for the Goods (if any) are made by the third-party vendor of the Goods and are subject to their terms and conditions.

8.3 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.4 Certain statutory provisions may imply warranties, terms or conditions which cannot be excluded, restricted or modified. If those statutory provisions apply, to the extent permitted, Exitile’s liability for breach of the Contract will be limited to one of the following as solely determined by Exitile:

8.4.1 the replacement of the Goods or supply of equivalent Goods;

8.4.2 the payment of the cost of replacing the Goods or acquiring equivalent Goods; or

8.4.3 the payment of the cost of repairing the Goods.

9. LIABILITY

9.1 Except in the case of liability for death or personal injury caused by Exitile’s negligence, liability for defective products under the Consumer Protection Act 1987 or liability under s.12 of the Sale of Goods Act 1979, Exitile shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Exitile, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of Exitile under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.

9.2 Exitile shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Exitile’s obligations in relation to the Goods if the delay or failure was due to any cause beyond Exitile’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond Exitile’s reasonable control:

9.2.1 Act of God, explosion, flood, tempest, fire or accident;

9.2.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;

9.2.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

9.2.4 import or export regulations or embargoes;

9.2.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Exitile or of a third party);

9.2.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;

9.2.7 Exitiler failure or breakdown in machinery.

10. INSOLVENCY OF THE BUYER

10.1 This clause 10 applies if:

10.1.1 the Buyer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Buyer (within the meaning of the Insolvency Act 1986); or

10.1.2 an encumbrancer takes possession or a receiver is appointed, of any of the property or assets of the Buyer; or

10.1.3 the Buyer ceases or threatens to cease, to carry on business; or

10.1.4 Exitile reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

10.2 If this clause applies then, without limiting any other right or remedy available to Exitile, Exitile may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

11. RETURNS POLICY

Returns information for individual consumers

11.1 If the Buyer cancels this Contract within 14 days of the Buyer’s receipt of the Goods, Exitile will reimburse to Buyer all payments received from Buyer, including the costs of delivery (except for the supplementary costs arising if Buyer chose a type of delivery other than the least expensive type of standard delivery offered by Exitile, or where costs have been incurred by Exitile through no fault of its own such as supplementary charges by carriers due to their inability to deliver because of factors / circumstances not advised to it by Buyer).

11.2 Exitile may make a deduction from the reimbursement for loss in value of any Goods supplied, if the loss is the result of unnecessary handling by Buyer.

11.3 The return of Goods is the Buyer's responsibility and must be despatched back to Exitile within 14 working days of notice of cancellation.

11.4 If the Goods cannot normally be returned by post (they are too large, for example), Exitile are not liable for either the costs, organisation or responsibility of collecting them and returning them to Exitile.

11.5 Goods must be returned to Exitile at Buyer’s expense in an unused condition, as supplied and must be suitable for resale at full price.

11.6 Exitile will only accept Goods for refund once inspected by it at the time of delivery or shortly after, and accepted by it.

11.7 Exitile accept no liability for damage to Goods in transit that have been returned to it - these Goods remain the sender's sole responsibility until the Goods have been received by it, inspected and accepted.

11.7.1 Exitile shall be under no obligation to refund Buyer for or accept Buyer’s return of Goods that are made to fit specific measurements, have been changed to fit Buyer’s requirements, or are otherwise bespoke to Buyer and therefore, by their nature, cannot be returned.

11.8 Goods must be returned to Exitile with paperwork clearly indicating when they were purchased, the name and address of the Buyer, the method of payment and, if possible, a copy of the invoice originally supplied with the Goods.

11.9. Exitile will make the reimbursement without undue delay, and not later than 5 days after the day Exitile receives back from Buyer any Goods supplied, or (if earlier) 5 days after the day Buyer provide evidence that Buyer have returned the Goods, or if there were no Goods supplied, 5 days after the day on which Exitile is informed about Buyer’s decision to cancel this Contract.

11.10 Exitile will make the reimbursement using the same means of payment as Buyer used for the initial transaction, unless Buyer have expressly agreed otherwise; in any event, Buyer will not incur any fees as a result of the reimbursement. Exitile may withhold reimbursement until Exitile have received the Goods back or Buyer have supplied evidence of having sent back the Goods, whichever is the earliest.

11.11 Buyer will bear the direct cost of returning the Goods, unless Buyer has received the incorrect Goods as a result of Exitile’s error or if they are faulty or damaged upon receipt.

Returns information for Business customers

11.13 Buyer has the right to cancel the contract at any time up to 5 working days after Buyer receives the Goods by notifying Exitile at [email protected] or in writing.

11.14 If Buyer cancels the Contract after the Goods have been delivered to Buyer, Buyer must return the Goods to Exitile at the address shown on the invoice or notified to Buyer at Buyer’s own cost and risk. Alternatively, Buyer may elect for Exitile to collect the Goods at Buyer’s cost. If Buyer cancels the Contract before the Goods have been delivered to Buyer and these Goods are delivered to Buyer after cancellation, Exitile shall be under no obligation to refund Buyer unless Buyer returns the goods to Exitile in their original, unopened and undamaged packaging or Buyer requests collection of the unopened, unused Goods within 5 days of receipt of the Goods. If Buyer fails to request collection or return the Goods, the Buyer may be liable for additional charges.

11.15 Whilst the Goods are in the Buyer’s possession, Buyer must take all reasonable steps to ensure they are not damaged. Provided that Exitile receives the Goods within the specified period above (5 days) and that they are in the same condition they were in when delivered to Buyer then Exitile will refund Buyer within 14 days of the receipt by Exitile of the Goods.

11.16 Exitile may make a deduction from the reimbursement for loss in value of any Goods supplied, if the loss is the result of unnecessary handling or other damage caused by Buyer.

11.17 The return of Goods is the purchaser's responsibility, and must be despatched back to Exitile within 14 working days of notice of cancellation has been given.

11.18 If the Goods cannot normally be returned by post (they are too large, for example), Exitile is not liable for either the costs, organisation or responsibility of collecting them and returning them to it.

11.19 Goods must be returned to Exitile in an unused condition, as supplied and must be suitable for resale at full price.

11.20 Exitile will only accept Goods for refund once inspected by it at the time of delivery or shortly after, and accepted by it.

11.21 Exitile accepts no liability for damage to Goods in transit that have been returned to it - these Goods remain the sender's sole responsibility until the Goods have been received by it, inspected and accepted.

11.22 Goods must be returned to Exitile with paperwork clearly indicating when they were purchased, the name and address of the purchaser and the method of payment and a copy of the invoice originally supplied with the Goods.

11.23 Buyer cannot cancel a contract for Goods which made to fit specific measurements, have been changed to fit Buyer’s requirements, or are otherwise bespoke to Buyer and therefore, by their nature, cannot be returned, except where a fault has been discovered that could not have been identified without unsealing the Goods.

12. ANTI BRIBERY

12.1 The Buyer shall ensure that it does not, by any act or omission, place Exitile in breach of the Bribery Act 2010.

12.2 The Buyer shall, to the extent applicable, comply with the Bribery Act 2010 and ensure that it has in place adequate procedures to prevent any breach of this clause 12.

13. GENERAL

13.1 Exitile shall process the Buyer’s personal data in accordance with its privacy policy available at https://www.buildingmaterials.co.uk/privacy-policy.

13.2 Exitile is a member of the group of companies and accordingly Exitile may perform any of its obligations or exercise any of its rights under the Contract by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of Exitile.

13.3 A notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the counterparty at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

13.4 No waiver by Exitile of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

13.5 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.

13.6 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.