Terms & Conditions
In these Terms and Conditions the following definitions shall apply:
Authorised Person: Lee Curnow and any other member of Varcurn’s Staff so authorised by him.
Bespoke: Goods that are made to measure to the Customer’s Specification or Dimensions and Ordered accordingly. This could be tiles (natural stone or porcelain), worktops, vanity units, hearths, fireplaces or any other bespoke Goods.
Contract:the Contract between Varcurn and the Customer entered into for the sale and purchase of the Goods in accordance with these Terms;
Customer:the person or company who purchases the Goods from Varcurn;
Estimate: the Estimated Price of the Goods requested by the Customer before the Order is finalised.
Goods:the Goods or any part of them set out in the Order;
Invoice: the document submitted to the Customer, identifying the transaction for which the customer owes payment to Varcurn, giving such details that could include a description of the Goods Ordered including type of material, size, quantity, the Invoicenumber, name and address of the seller and name and address of the Customer.
Order:any Order from the Customer to purchase Goods from Varcurn which incorporates these Terms, as set out in the Customer’s Invoice; or the Customer’s written acceptance of Varcurn’s Estimate; or, where no Estimate has been issued, as set out in the Customer’s written request for Goods (including by email); or as set out in any Order made over the phone, as the case may be;
Payment: Payment of the Goods as set out on the Invoice inclusive of VAT and any Delivery charges.
Price:the Price of the Goods plus any labour, fitting, other materials and delivery costs, all inclusive of VAT as stated on the Invoice forming the Contract.
Specification or Dimensions:any Specification for the Goods, including any related plans or drawings, agreed by the Customer and Varcurn;
Varcurn:the supplierVarcurn Marble Limited, a company registered in England & Wales under Company Number 5222520. Registered Office: Zenith House, Dudnance Lane, Pool, Redruth, Cornwall, TR15 3QY. VAT Number: 768977737.
Website:means the website operated by Varcurn under the domain namewww.varcurn.co.uk;
Terms:the terms and conditions set out in this document, as amended from time to time, as set out in Clause 7.
In these Terms, unless otherwise stated: a reference to a "person" includes a reference to a neutral person, a body corporate, association, partnership or individual; a reference to a "third party" is to be a person who is not a party to the Contract; the singular shall include the plural and vice versa; a reference to a gender is to every gender; a reference to a "Clause" is a reference to a Clause of these Terms; a reference to a statute, statutory instrument, regulation, Order or license is a reference to that statute, statutory instrument, regulation, Order or licence as substituted, varied or amended from time to time; a reference to any document or agreement is to that document or agreement as substituted, varied or amended from time to time; a reference to “include” and “including” shall be construed without limitation.
The headings in these Terms are for convenience only and shall not affect the construction or interpretation of these Terms.
1. BASIS OF CONTRACT
1.1By Ordering Goods the Customer agrees to be bound by these Terms and accepts that they shall govern all Contracts between the Varcurn and the Customer, to the exclusion of any other terms and conditions.
1.2No terms and conditions of the Customer, including any terms and conditions in any Orders, offers or acceptances of the Customer, shall form part of the Contract and are hereby expressly excluded.
1.3Varcurn agrees to sell and deliver or make available for collection and the Customer agrees to Purchase and accept delivery or collect the Goods on and subject to these Terms.
1.4These Terms shall apply and prevail over any other term of the Contract, unless otherwise agreed by Varcurn. Varcurn shall only be considered to have agreed otherwise where it has expressly agreed in a written document issued for and on behalf of Varcurn by an authorised person.
1.5These Terms and any document expressly referred to in them constitute the entire agreement between Varcurn and the Customer and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between Varcurn and the Customer, whether written or oral, relating to their subject matter.
1.6The Customer acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms or in any document expressly referred to in them.
1.7Varcurn and Customer agree that neither shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
2.1Goods can consist of Tiles (i.e. Tiled Goods), Worktops, Kitchens, Bathrooms, Stoves, Fireplaces, Fires, Wood Flooring, Adhesives, Accessories etc, and any other Goods as sold by Varcurn to the Customer, being natural or manufactured. Any descriptions or images of the Goods on Varcurn’s Website, or in any of the Varcurn’s printed materials, are for illustrative purposes only and no Goods are warranted to be exact replicas of any samples, drawings or advertising supplied. The Customer must also refer to the specific terms & conditions for each type of Goods (i.e. Kitchens, Worktops, Stoves etc) and any other specific terms & conditions as added to these terms as & when, that follow these General Terms & Conditions.
2.2All descriptions, drawings, advertising, colours, samples of any Goods are for guidance purposes only and the actual Goods supplied may differ slightly from any descriptions given.
2.3The majority of the Goods sold by Varcurn are natural, geological products and variations in colour, markings, form, texture and size should be expected. Variations can exist in crystalline composition, veining, fossil deposits and mineral activity and no Goods are claimed by Varcurn to be exact replicas of images, colours, or samples. This can also occur in any manufactured goods. Varcurn recommends that the Customer views as much of the Goods as possible before entering a Contract.
2.4Any samples of Goods are for giving an approximate representation of the Goods only. All samples have been prepared to a presentation standard and allowed to dry.
2.5Although Varcurn makes every effort to be as accurate as possible, Varcurn’s Goods are supplied under a variety of industry-accepted size-tolerances and all dimensions and measurements indicated have a tolerance of up to 5mm. To minimise variations in finish and tolerance, Varcurn recommends that Goods are selected from a variety of boxes, if more than one box is purchased. Any variation will be deemed to be agreed by the Customer once Varcurn has accepted an Order.
2.6The Customer should bear in mind that natural stone tiles may be subject to natural chipping and pitting and may be easily scratched. The Customer must handle Goods correctly to prevent damage. Care needs to be taken when unpacking the Goods as the spacers may need to be removed from the packaging before the Goods are lifted out. The Goods should always be stacked and stored vertically (on the edge) but not on a hard surface as this may cause unnecessary edge chipping. Varcurn cannot be held responsible for damage which occurs after delivery or, if Varcurn decides to collect the Goods, after collection. Stone tiles may need to dry out before the installation process begins. The Customer should ask their fitter/tiler to advise them if this is the caseand can also check with Varcurn (with reference to Clauses 2.7 – 2.11 below).
2.7Details about how to care for Goods are available by request. Varcurn recommends that the Customer reads these carefully. All advice is given in good faith and is intended for general guidance only.
2.9When Ordering bespoke Goods it is the Customer’s responsibility to ensure the Goods are appropriate for its intended purpose and are compliant with any regulations, permissions or approvals required for the Customer’s intended purpose. Varcurn will not be liable where the Customer’s use of such Goods is not compliant in such circumstances.
2.10In agreeing to sell Goods to the Customer, Varcurn makes no guarantee as to the suitability of those Goods to the specific installation the Customer has in mind and gives no warranty that the Goods can be used in any given environment. The Customer should seek professional advice in relation to the fixing, installation and care of the Goods.
2.11Varcurn will not be liable to the Customer for lost working time or the cost of third party Contractors, or any other consequential loss, where the Customer (or its Contractor) fails to install the Goods correctly or fails to use the correct base, adhesive, grout or sealants or fail to use the correct installation techniques or the Goods are fixed in an unsuitable environment.
3. ORDERING GOODS
3.1When Ordering Goods the Customer is responsible for ensuring that the information provided to Varcurn, including in any applicable Specifications, is correct.
3.2If Ordering Bespoke Goods the Customer’s Order must be made in writing with clear instructions as to size, colour, stone type, finishing, and any other particular requirements it may have, unless agreed verbally with Lee Curnow or authorised staff. Orders can be submitted via email at email@example.com or by writing to Varcurn at Zenith House, Dudnance Lane, Pool, Redruth, Cornwall, TR15 3QY. The Customer should confirm which Estimate number they wish to proceed with and supply any information required e.g. the full property address including the postcode. Varcurn should then email the Customer an Invoice and the Customer should check it and immediately let Varcurn know if there are any errors or changes they require to the Order and pay the deposit requested or pay the Price in full if so required. In any case the deposit/Price in full as requested must be paid before any templating required on the Order takes place.
3.3If requested, Varcurn may provide an Estimate of the quantity of Goods the Customer may need for a project before the Customer Orders, based on the information and measurements the Customer provides. However, the Customer should seek independent, professional advice before Ordering as (subject to these Terms) Varcurn will not be responsible for any surplus or shortfall of Goods ordered.
3.4Given the fragile nature of some of the Goods including tiles, industry practice recommends that the Customer include an additional 10% (ten percent) of Goods to any Order to allow for wastage due to minor damage (such as edge chipping during the packing and unpacking of the stone) minor imperfections and damage that may be caused from cutting during the fitting process. Goods affected in this way can often be utilised for ‘cuts’ during installation and/or for future repairs.
3.5Varcurn will not replace or refund damaged Tiled Goods & Wood Flooring constituting less than 10% (ten percent) of the total Order.
3.6If the Customer Orders too few Tiled Goods or Wood Flooring in any one consignment, any subsequent Tiled Goods Ordered may be different in finish, shade, pattern and tolerance and the delivery of a few extra tiles or wood flooring may, in some cases, be as much as the original delivery costs.
3.7The Customer should be aware that some of Varcurn’s Goods are imported from abroad, often by way of container shipment, either direct or via UK based Suppliers and that stock levels may subsequently be affected by reasons beyond its control. Occasionally, this may lead to a delay in the availability and delivery of Goods Ordered. In such circumstances Varcurn will notify the Customer, as soon as possible and cannot be held responsible for any such delays.
3.8Varcurn will not be responsible for delays beyond its reasonable control including any delays relating to shipping or customs requirements.
3.9. If a Customer already has their own Goods, be it natural stone or a composite or porcelain etc and Varcurn agrees to cut the Customers own Goods, Varcurn would usually request that the Customer signs a waiver that if there was any breakages or damage whilst the Goods were in Varcurn’s possession, albeit at Varcurn’s premises or in transit during a delivery to the Customer, Varcurn cannot be held responsible for any such damage. This would still be the case if a waiver is not signed by the Customer. The Customer would have to assess the risk before placing an Order for any work, cuts, polishing etc.
4. DATA PROTECTION
4.1During the Ordering process the Customer will be required to provide personal information such as name, billing address, email address, delivery address, telephone number and payment details if paying over the phone.
4.2Varcurn will treat and store all personal information confidentially and comply with all applicable UK Data Protection and consumer legislation in place from time to time.
4.3The Customer accepts that Varcurn may, from time to time:
4.3.1make a search with a credit reference agency in respect of the Customer and keep a record of that search; and
4.3.2monitor and record information relating to the credit performance and make such records available to credit reference agencies who will share that information with other businesses in assessing applications for credit and fraud prevention.
4.4By placing an Order the Customer consents to Varcurn carrying out the activities referred to in Clause 4.3.
5. HOW THE CONTRACT IS FORMED
5.1The Order placed by the Customer constitutes an offer to purchase the Goods in accordance with these Terms.
5.2The Order shall only be deemed to be accepted when:
5.2.1Varcurn issues an Invoice, detailing the Goods included in the Contract and any Specifications and any other relevant information required in relation to the Contract, at which point the Contract shall come into existence, and the Customer pays either the full amount or the deposit amount requested;
5.2.2(if earlier) Varcurn delivers the Goods to the Customer.
5.3On receipt of an Order Varcurn mayissue an ‘acknowledgement of Order’, by automated email or otherwise. This is intended only to confirm that an Order has been received and is not confirmation that the Order has been accepted.
5.4Upon Order Varcurn will issue an Invoice for the Goods Ordered and give to the Customer either in person or by email and the Invoice will be included in the Contract. If for some reason the Customer does not receive the Invoice (e.g. if they do not supply their email address), the Invoice will still be deemed to form part of the Contract in any case and Varcurn will keep the Invoice on file which the Customer can request at any time.
5.5. Any Extra Goods required by the Customer must be requested either verbally or in writing and will be added to the Invoice accordingly. Varcurn may also add Extra Goods to the Invoice if it becomes apparent that the job cannot be finished without them and/or the Customer has not informed Varcurn of certain Specifications that mean that the Extra Goods are required. Extra Goods may sometimes be added to a new Invoice if the first Invoice has already been paid or for clarity. Varcurn will endeavour to inform the Customer of the Price of the Extra Goods as soon as possible either in person or by phone or email. If the Extra Goods are not added to the Invoice or a new Invoice for any reason, Varcurn reserves the right to add them to the Invoice or a new Invoice at the end of the job (or as soon as possible thereafter) for completion of the Order for the Customer to pay in full as per these Terms & Conditions.
5.6 Estimate Validity; All Estimates are valid for 30 days (thirty days) from the date sent. This does not take into account manufacturers price list updates that may affect an Estimate at the time of order. Varcurn’s sales team are happy to check and advise Customers when new price lists are due should this be of concern. All costs relating to installation and commissioning will not be affected.
6. CANCELLATION BY VARCURN
6.1If Varcurn is unable to supply the Customer with any Goods Ordered, for example because Goods are not in stock and cannot be delivered within 28 days (twenty eight days) of Varcurn confirming the Customer’s Order, or are no longer available, or because Varcurn cannot meet the Customer’s requested delivery date, or because of an error in the Price of the Goods by Varcurn or on Varcurn’s website or any published Price list (as referred to in Clause 14.8) or the Suppliers’ Price changes for any other reason, Varcurn will notify the Customer in person, by e-mail or by telephone and the Customer’s Order will not be processed. If the Customer has already paid for the Goods, Varcurn will refund the Customer the full amount, including any delivery costs charged.
6.2Varcurn reserves the right to cancel any Orders and to end the Contract in the following circumstances:
6.2.1if the Customer does not, within a reasonable time of Varcurn asking for it, provide information necessary to provide the Goods;
6.2.2if the Customer does not, within a reasonable time, allow Varcurn to deliver the Goods to it, or collect them from Varcurn;
6.2.3if any of the information the Customer has provided as part of the ordering process is fraudulent and/or inaccurate;
6.2.4if the Customer has requested delivery of Goods to an address outside Varcurn’s usual delivery areas; or
6.2.5if the Customer’s method of payment is declined.
6.3If Varcurn ends the Contract in the situations set out in Clause 6.2 it will refund any money the Customer may have paid in advance for any non-bespoke Goods it has not provided but it may deduct or charge the Customer reasonable compensation for the costs it will incur as a result of the Customer breaking the Contract.
7. VARCURNS RIGHT TO VARY THESE TERMS
7.1Varcurn reserves the right to amend these Terms from time to time to reflect changes in its own working practices, Policies, relevant laws and regulatory requirements, changes in market conditions affecting its business and changes in technology, including its internal systems and/or preferred payment methods, and/or for any other reason.
7.2Every time the Customer Orders Goods from Varcurn, the Terms in force at the time of the Order will apply to the Contract between Varcurn and the Customer, unless Varcurn notifies the Customer of any changes to the Terms before sending the Customer an Order Confirmation. In these circumstances, Varcurn reserves the right to assume that the Customer has accepted any such changes to the Terms. If the Customer does not accept the changes, the Customer must notify Varcurn, within 7 days (seven days) of receiving the Goods.
8. PERFORMANCE AND QUALITY
8.1Varcurn will supply the Goods and any ancillary services in accordance with the Order and with that degree of skill and care and attention reasonably and ordinarily exercised by experienced and competent persons engaged in similar circumstances and conditions.
8.2Varcurn warrants (subject to these Terms) that on delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and be free from material defects.
8.3Varcurn shall not be liable for a breach of any of the warranties in this Clause 8:
8.3.1where the Customer makes any further use of such Goods after giving relevant notice of any breach of warranty;
8.3.2where the defect arises because the Customer failed to follow any guidance given by Varcurn as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
8.3.3the Customer alters or repairs such Goods without Varcurn’s written consent;
8.3.4the defect arises as a result of Varcurn following any Specification supplied by the Customer; or
8.3.5the Goods differ from their description or the relevant Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.4If any of the Goods do not conform with the warranties in Clause 9, Varcurn will (subject to Clause 10) either (i) refund the Price of the Goods paid (exclusive of VAT), in full or in part on a pro-rata basis, or (ii) repair or replace the Goods if repair or replacement is possible, provided that the Customer will return the Goods (or the part of such Goods which are defective) to Varcurn.
8.5If Varcurn complies with Clause 8.4, Varcurn shall have no further liability for a breach of any of the warranties in Clause 8, in respect of such Goods.
8.6The Customer accepts that the Terms implied by Sections 13 to 15 of the Sales of Goods Act 1979 are, to the fullest extent possible, excluded from the Contract.
8.7These Terms shall apply to any repaired or replacement Goods supplied by Varcurn.
9. THE CUSTOMERS RIGHT TO CANCEL, RETURN AND REFUND
9.1In accordance with Clauses 9 and 10, the Customer shall be entitled to cancel any Orders within 14 days (fourteen days) commencing on the date the Customer either collects the Goods, or from the date of delivery, provided that such goods are returned in the same condition as at collection/delivery and are not damaged, broken, fractured, cut or scratched in any way (for damaged items see Clause 10 below);
9.2The Customer shall return the goods to Varcurn at its own risk and expense to Zenith House, Dudnance Lane, Pool, Redruth, Cornwall, TR15 3QY, or such other address as notified to the Customer from time to time.
9.3The Customer’s right of return and refund does not apply in the case of:
9.3.1Goods which due to use or damage by the Customer cannot be re-sold at full Price (for instance if Goods are, in Varcurn’s reasonable opinion, damaged, broken, cut or scratched in any way);
9.2.1Goods which are made specifically for the Customer under a Specification and are of a Bespoke nature (e.g. Goods which have been made to Order to the Customers’ specific sizes and/or requirements) (unless defective)). This includes all kitchens, worktops, any natural stone products, some natural stone tiles and all porcelain tiles, glass splashbacks, and any other Bespoke Goods that are made to Order.
9.3.2Goods which have already been installed, laid or used (unless defective – in which case they will need to be returned);
9.3.3Goods which have become mixed inseparably with other items after their delivery;
9.3.4Goods which are sealed or shrink-wrapped and which have been opened (unless defective);
9.3.5Bagged & bottled goods including all adhesives, grouts, sealers etc which have been opened; and
9.3.6Goods which cannot be returned due to hygiene reasons (unless defective).
9.4The Customer can cancel the Order by serving notice under Clause 20.
9.5If the Customer qualifies for a refund under these Terms, Varcurn will refund the purchase Price of Goods returned within 30 days (thirty days) of receiving notice under Clause 20 of the Customers intention to return the Goods.
9.6If the Customer cancels an Order after dispatch, but before receipt of the Goods, Varcurn reserves the right to levy a charge for the cost of return.
9.7If Goods have been delivered to the Customer before the Customer decides to cancel the Contract:
9.7.1then the Customer must return the Goods to Varcurn without undue delay and in any event not later than 14 days (fourteen days) after the day on which the Customer let Varcurn know that the Customer wishes to cancel the Contract. The Customer should return the Goods to Varcurn in person to Zenith House, Dudnance Lane, Pool, Redruth, Cornwall, TR15 3QY or another address which Varcurn may give. If Varcurn has offered to collect the Goods from the Customer, Varcurn will arrange for the Goods to be collected from the address to which they were delivered and will contact the Customer to arrange a suitable day for collection;
9.7.2the Customer will be responsible for the cost of returning the Goods to Varcurn. If Varcurn has agreed to collect the Goods from the Customer, it will charge the Customer for the cost of collection.
9.8Goods must be returned in the original packaging, including any accessories, brochures, manuals, guarantees or warranties that came with the Goods on delivery. No refund will be issued for Goods returned in an incomplete state (unless the Goods are defective). If the original packaging of a defective product has been damaged or destroyed the Customer should ensure the Goods are returned in suitable, protective packaging. Varcurn reserves the right to ask the Customer to provide evidence by way of photograph that the items are packed securely before returning (see Clause 10).
9.9Varcurn will not issue refunds for any items lost or stolen in transit on return to Varcurn.
9.10Where a return is lost or stolen in transit to Varcurn, the Customer should claim compensation from the organisation responsible for shipping/delivering the return.
9.11If the Customer fails to return Goods to Varcurn, Varcurn reserves the right to organise collection and charge the Customer for the costs of doing so and for any losses incurred.
9.12If the Customer wishes to cancel their Order or change the material or colour of the Goods they must tell Varcurn as soon as possible, in writing. If the Customer informs Varcurn verbally they should also confirm in an email. If the Goods have already been ordered from Varcurn’s particular supplier a 20% (twenty percent) re-stocking charge of the Total Price will be payable by the Customer to Varcurn immediately.
10. EXAMINATION AND ACCEPTANCE
10.1Varcurn and its Suppliers take a great deal of care to ensure that Goods leave their premises in good condition. If, however, there is obvious damage to the Goods, the Customer should make a note of the damage at the time of receipt.
10.2The Customer shall inspect the Goods immediately upon receipt. Varcurn shall not be liable for loss of, defects to or shortages of Goods discoverable on reasonable inspection (or for total loss of the Goods in transit, if delivery is arranged), unless the Customer notifies Varcurn within 24 hours (twenty-four hours) of collection, or within 24 hours (twenty-four hours) of delivery. If the Customer does not give any such notice then the Goods shall be considered to have been received in full and accepted by the Customer. Notice under this Clause 10.2 can be given either in person, by email or telephone.
10.3If after notifying Varcurn of its intention to reject the Goods, the Customer deals with the Goods as the owner of them or if any of the Customer’s conduct is inconsistent with such rejection or with the ownership of the Goods by Varcurn, the Customer shall be deemed to have accepted the Goods and be bound to pay for them.
10.4If the Customer does not reject the Goods within the timescale outlined at Clause 10.2, or if the Customer has used or installed them after having rejected them, Varcurn will deem the Customer to have accepted them.
10.5Varcurn reserves the right to arrange to inspect Goods and to request documentary evidence, such as photographs, to demonstrate any defects.
10.6If Varcurn accepts on inspection or photographic evidence that the Goods are defective then (subject to the notification requirements at Clause 10.2) Varcurn will repair or replace the Goods if repair or replacement is possible, provided that the Customer will return the Goods (or the part of such Goods which are defective) to Varcurn. If repair or replacement is not possible Varcurn will refund the Price of the Goods in full, or in part on a pro-rata basisdepending on the amount paid and Varcurn’s arrangement with its particular supplier.
10.7If Varcurn does not agree that Goods are defective, or if any defect is deemed to be through fault of the Customer, Varcurn reserves the right to recover any associated costs from the Customer (such as the cost of carrying out an inspection) and to reject any claim in respect of alleged damages or defective Goods. In these circumstances, the Customer will be expected to bear the cost of collection and/or redelivery of any replacement Goods.
10.8The Customer will not be entitled to a reject Goods delivered or claim damages in respect of any deviations in quantity of goods delivered of 3% (three percent) or less of value from that set out in the Contract and the Customer shall be obliged to accept and pay for the Goods as per the Contract.
11. DELIVERY AND COLLECTION
11.1Varcurn aims to deliver Goods within the timescale relevant to the Customer’s location and will provide an estimated delivery date (or, if requested, an estimated Collection date) as part of the Order confirmation. If the estimated date is not convenient the Customer should call Varcurn on 01209 610777/01209 614512, within 12 hours (twelve hours) of receiving its Order confirmation/Invoice, to re-arrange an alternative time. If the Customer would prefer to collect the Goods the Customer should notify Varcurn before placing an Order. Varcurn can be contacted on 01209 610777/01209 614512 or by email at firstname.lastname@example.org.
11.2If Goods are being imported from abroad or the Goods Ordered are not in stock at the time of purchase, delivery may be in excess of 30 days (thirty days). Varcurn will advise the Customer as soon as it can of any such delays.
11.3Varcurn’s scheduled delivery times are between 7:30am and 6.00pm, unless arranged otherwise. Deliveries are either by Varcurn direct or via a third-party pallet network and/or courier, for which Varcurn is not responsible. All delivery times are estimates only and cannot be guaranteed. Estimated times for delivery are not of the essence and Varcurn’s failure to meet an estimated delivery date shall not entitle the Customer to repudiate the Contract.
11.4Varcurn recommends that the Customer does not book Contractors or tilers on the day of delivery and will not be held responsible for any losses the Customer incurs from doing so, should delivery be delayed for any amount of time thereafter.
11.5Varcurn shall not be liable for any failure to deliver, or for any delay in delivery of the Goods, or damage to Goods delivered, arising from circumstances beyond its reasonable control.
11.6Due to their weight and dimension, Goods are usually delivered on a 17 ton lorry, with a tail-lift and pallet-truck for moving tiles. The Customer must notify Varcurn upon Order about any obstacles at the Customer’s chosen delivery location (Delivery Location) which may affect delivery, such as low hanging sign posts and trees, low bridges, narrow country roads or lanes and steep gradients, as well as any parking and/or unloading restrictions at the Customer’s chosen address, including double yellow lines. The Customer can provide this information by calling Varcurn on 01209 610777/01209 614512 or emailing email@example.com. Where possible in such circumstances Varcurn will try to deliver by smaller vehicle, but this cannot be guaranteed. Delivery by smaller vehicles may incur additional delivery charges and delivery schedules. Varcurn reserves the right to recover from the Customer, and the Customer agrees to pay, any costs incurred on delivery, such as fines incurred for parking and/or unloading in restricted areas (see Clause 14.10).
11.7The Goods will be delivered by way of an economy kerb-side drop. It is the Customers responsibility to move Goods to their final destination once delivered.
11.8If no one is available at the Customer’s address to take delivery, or if Goods cannot be dropped-off because of difficulties accessing the drop-off point, Varcurn reserves the right to levy a charge for having to abort the delivery and for the cost of any redelivery and/or storage charges.
11.9Delivery of an Order shall be completed when either (i) Varcurn or the third party pallet network or courier delivers the Goods to the Delivery Location; or (ii) the Customer, or a carrier organised by the Customer, collects the Goods.
11.10The Customer will be responsible for the removal of all packaging after delivery. This will include the disposal of any wooden pallet supplied with delivery.
11.11Varcurn shall be entitled to make delivery of the Goods by instalments and to Invoice the Customer for each instalment dispatched. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
11.12Where Goods are to be supplied or delivered by Varcurn or third party (as above) in accordance with periodic delivery schedules or similar notification of the Customer’s delivery requirements, the Customer shall not be entitled to cancel or vary any such delivery schedule or requirement which is expressed by the Customer to be a firm requirement without Varcurn’s prior written consent and Varcurn shall be entitled to reimbursement of any additional costs and expenses incurred or suffered as a result of such cancellation or variation.
11.13If the Customer arranges to collect Goods from Varcurn’s premises, either in person or via a third party carrier, the risk in the Goods will pass to the Customer on collection (see Clause 13). Varcurn will not be liable for any damage or breakages incurred while the Goods are in transit after collection. It is essential that:
11.13.1The Customer checks the weight and dimensions of the Order before collection and ensures that a suitable vehicle is used - one which is able to accommodate the weight and volume of the Goods and which can be loaded by fork-lift truck. Varcurn’s staff will only load Goods onto a collection vehicle if it is safe to do so; and
11.13.2The Customer ensures that the Goods are packed securely to avoid any damage in transit.
11.14Where postponement of delivery or collection is agreed with Varcurn at the Customer’s request the Customer shall, if required by Varcurn, pay all costs and expenses incurred as a result of such postponement (including a reasonable charge for storage and insurance of the Goods and interest on the Price of the Goods). The Goods shall be held at the Customer’s risk as from the time of postponement.
11.15If performance of the Contract is suspended at the Customer’s request or delayed through default of the Customer’s, including (without limitation) lack of, incomplete or incorrect instructions or refusal to collect or accept delivery of the Goods for a period of 14 days (fourteen days), Varcurn shall be entitled to payment at the Contract rate for Goods supplied or Ordered and any other additional costs thereby incurred including storage, insurance and interest PROVIDED THAT if the Customer fails to collect or accept delivery of the Goods or any part thereof within 7 days (seven days) of written notification from Varcurn that the Goods are ready for collection or delivery, Varcurn shall be entitled (without prejudice to any other remedies under the Contract for such breach) to sell or, at its option, destroy the Goods and to apply the proceeds of sale thereof if sold, and the scrap value if destroyed, towards payment of all sums due to Varcurn under the Contract.
11.16Varcurn shall be entitled to withhold or suspend delivery of any Goods where any amounts payable by the Customer are overdue on any account whatsoever, or where Varcurn has reasonable grounds for believing the Customer will not be able to pay the Price for the Goods or any other amount due to Varcurn, unless and until such amounts are paid in full, in cleared funds.
11.17Any liability of Varcurn for non-delivery of the Goods shall be limited to replacing the Goods and within a reasonable time reissuing a credit note for the pro-rata Contract rate against any Invoice raised for such Goods.
12. INTERNATIONAL DELIVERY
12.1Varcurn does not typically deliver Goods abroad, but is happy to discuss any requirements the Customer may have for international deliveries. If the Customer has any queries relating to international deliveries Varcurn can be contacted on 01209 610777/01209 614512. International Orders will not be accepted on-line.
12.2If the Customer Orders Goods for delivery to an international destination, the Order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Varcurn has no control over these charges and cannot predict their amount.
12.3The Customer will be responsible for payment of any such import duties and taxes. The customer should contact its local customs office for further information before placing an Order.
12.4The Customer should indemnify Varcurn against all and any losses and costs for which Varcurn is required to pay in respect of, or incidental to the Order and referred to in Clauses 12.2 and/or 12.3.
13. RISK AND TITLE
13.1All Goods shall remain Varcurn’s property and legal and beneficial title to the Goods shall remain with Varcurn until the Customer has paid all sums due to Varcurn under the Contract and any other Contract in full in cleared funds.
13.2The Goods will be at Varcurn’s risk (including all losses for breakages and damage) from the time of delivery or collection. If the Customer arranges for Goods to be collected by a third party carrier, risk will pass to the Customer when the third party carrier collects the Goods.
13.3If the Customer receives Goods before payment is received by Varcurn in full, the following Clauses will apply:
13.3.1The Customer shall maintain in satisfactory condition and at its own risk and expense insure all Goods supplied by Varcurn from the date of delivery for their full replacement value against all the usual risks and keep all Goods safe and in good condition stored separately and clearly identifiable as Varcurn’s property with all identifying marks intact and legible.
13.3.2The Customer shall store or otherwise denote consignments of the Goods in respect of which legal title remains with Varcurn in such a way that the same can be recognized as Varcurn’s property and where the same type of goods have previously been supplied by Varcurn and in which legal title has passed to the Customer, the Customer shall ensure that such goods are lent, sold, hired or otherwise utilized in priority to the Goods supplied under this Contract. The Customer shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods.
13.3.3The Customer shall hold the Goods on a fiduciary basis as Varcurn’s bailee and may use or sell the Goods or any of them in the ordinary course of its business on the basis that any proceeds of sale shall be held in trust by the Customer for Varcurn absolutely until the Customer has paid all sums due to Varcurn under the Contract in full. The Customer’s rights under this Clause shall be conditional upon the Customer including a retention of title Clause substantially in the form of that contained at Condition 13.1 above in all Contracts entered into by the Customer for the sale of the Goods or any of them.
13.3.4The Customer’s rights under Clause 13.3.3 shall terminate immediately on notice from Varcurn or automatically on the presentation of a petition for the Customer’s winding-up or for the making of an Administration Order in relation to the Customer or if the Customer has a Receiver or Administrative Receiver appointed over any of its assets or undertaking or the Customer goes into voluntary liquidation (other than for the purposes of a bona fide reconstruction or amalgamation of a solvent supplier) or if the Customer ceases to carry on business or applies or proposes or makes any compromise, arrangement or voluntary arrangement with its creditors or is unable to pay its debts (within the meaning of Section 123 or 268 (as appropriate) of the Insolvency Act 1986) or upon the happening of any equivalent event under the laws of any relevant jurisdiction, or the Customer encumbers or in any way changes any of the Goods. The Customer grants Varcurn, Varcurn’s agents and employees an irrevocable licence at any time to enter into any premises where the Goods may be stored to recover them where the Customer’s rights to possess them are terminated.
13.3.5Varcurn and Varcurn’s agents and employees may at any time enter the Customer’s premises for the purpose of inspecting the Goods and identifying them as Varcurn’s property and the Customer irrevocably authorizes Varcurn to enter upon the Customer’s premises for that purpose.
13.3.6Upon the termination of the Customer’s powers of use and sale under Clause 13.3.3 above Varcurn shall be entitled at its option:
22.214.171.124to cancel all or any part of any Orders for Goods placed by the Customer and not yet delivered (whether or not accepted or whether or not under the Contract or any other Contract); and/or
126.96.36.199to deal direct with any of the Customer’s customers and/or to resell the Goods and any proceeds of any sale to such customers shall belong to us absolutely.
13.4On termination of the Contract, howsoever occurred, Varcurn’s rights contained in this Clause 13 shall remain in effect.
13.6Title and risk in any returned Goods (where title and risk has already passed) will not pass back to Varcurn until Varcurn is satisfied on receipt of the Goods, and on inspection, that they are in satisfactory condition and suitable for re-sale (or in the case of return due to defect, that the Goods are defective).
14. PRICE OF GOODS AND DELIVERY CHARGES
14.1If Ordering on-line, the Price of the Goods will be as quoted on Varcurn’s Website.
14.2Varcurn takes all reasonable care to ensure that the Price of Goods is correct. However, the Customer is referred to Clause 14.11 for what happens if Varcurn discovers an error in the Price of Goods the Customer Orders.
14.3The Price of Goods quoted does not include the cost of cases or other packing materials, the cost of delivery or insurance of the Goods in transit, which the Customer shall pay in addition.
14.4The Price of the Goods is exclusive of Value Added Tax.
14.5Any Estimate given by Varcurn is valid for a period of 30 days (thirty days) from the date it is issued, provided that Varcurn has not previously withdrawn it.This does not take in to account manufacturers price list updates that may affect an Estimate at the time of Order. Our sales team are happy to advise you when new price lists are due should this be of concern. All costs relating to fitting and commissioning should not be affected unless a different tradesperson has to be used and they charge more than the original one that was going to be used.
14.6The Price given to any particular Customer can be based upon many things such as a reduction in the price if it is a return Customer, discount for a trade Customer, or the Customer is purchasing a large amount of Goods, e.g. a large square meterage of tiles, or a few different Goods in which case Varcurn may reduce the normal price of the Goods accordingly. There may also be discounts available to Varcurn at the time from a particular Supplier which it can pass on to the Customer if it so wishes. In any case, if the Price given from one Customer to another is different there could be any number of reasons for that. The Customer is always welcome to ask why and Varcurn will let them know accordingly.
14.7Where the Price has been quoted based on stated production runs and specific delivery periods, we reserve the right to vary the Price for the Goods should the Customer Order different quantities from those stated and/or require delivery over a different period.
14.8Varcurn reserves the right to vary the Price of Goods without notice by any amount attributable to a change in or insufficiency of the Customer’s instructions, change of law, any variation in the cost of materials, labour, transport, duties, taxes, exchange rates or any costs of whatsoever nature between the date of the Contract and the date of delivery or completion of payment.
14.9If the rate of VAT changes between the date of the Customer’s Order and the date of delivery, Varcurn will adjust the VAT the Customer pays, unless the Customer has already paid for the Goods in full before the change in VAT takes effect.
14.10Varcurn’s delivery charges vary depending on the distance of the Customer’s delivery address either from Varcurn’s premises/its Suppliers premises, the weight of the Goods Ordered and the means of delivery used, including the type of vehicle. If Ordering on-line, delivery options and costs will be calculated as part of the Order process and the Customer’s available options will be made clear before the Customer places an Order (see Clause 11.6).
14.11Varcurn supplies a large number of Goods. It is always possible that, despite Varcurn’s best efforts, some of the Goods on Varcurn’s Website or published Price lists may be incorrectly priced. Varcurn will normally check Prices as part of its dispatch procedures so that:
14.11.1where the correct Price of Goods is less than the Price stated on Varcurn’s Website, or published Price list, Varcurn will charge the lower amount when dispatching the Goods to the Customer. However, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by the Customer as a mispricing, Varcurn does not have to provide the Goods to the Customer at the incorrect (lower) Price; and
14.11.2if the correct Price of the Goods is higher than the Price stated on Varcurn’s Website, Varcurn will contact the Customer as soon as possible to inform the Customer of this error and Varcurn will give the Customer the option of continuing to purchase the Goods at the correct Price or cancelling the Customer’s Order.
15.1Unless individual credit terms are agreed between Varcurn and the Customer, the Total Price of the Goods, including any delivery charges and VAT shall be paid for in full, in cleared funds, before any Goods are despatched.
15.2Payment for any bespoke Orders must be received in full and clear funds before the fabrication of such Orders will begin, unless otherwise agreed.
15.3If credit terms are arranged, Varcurn may, at its discretion, despatch goods sooner and agree payment no later than 30 days (thirty days) after the date of the Invoice.
15.4Varcurn shall be entitled at its sole discretion from time to time to require the Customer to pay up to a maximum of 100% (one hundred percent) of the Total Price of the Goods on the date the Customer submits an Order and/or up to the date that Varcurn notified the Customer that the Goods are available for collection.
15.5Where the Goods are delivered by instalments, the Customer shall be obliged to pay for each instalment upon the terms set out in Clauses 15.1 or Clause 15.2 as appropriate.
15.6The time stipulated for payment shall be of the essence and failure to pay within the period specified shall entitle Varcurn upon the expiration of 7 days (seven days) notice in writing, to suspend further performance of the Contract pending payment and in addition Varcurn shall be entitled, without liability, wholly or partially to cancel the Contract or any other Contract between the Customer and Varcurn without prejudice to any other remedy available to Varcurn. The Customer shall be liable for all cancellation, delivery and ancillary costs incurred by Varcurn arising in respect of any failure to make the payments due under the Contract.
15.7The Customer shall make all payments due under the Contract in full without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court Order requiring an amount equal to such deduction to be paid by Varcurn to the Customer as any monies due to the Customer under the Contract.
15.8Varcurn may at any time in its absolute discretion set off any payment made by the Customer in respect of the Goods to any outstanding debt owed by the Customer to Varcurn.
15.9All payments due to Varcurn under the Contract shall become due immediately upon its termination despite any other provision.
16. INTEREST FOR LATE PAYMENT
16.1Without prejudice to any other remedy which may be available to Varcurn hereunder or at law, if the Customer fails to pay the Total Price for the Goods in full (including any VAT and delivery charges) by the due payment date, the Customer shall pay to Varcurn during the period commencing on the day following the due date for payment and expiring on the day that payment is received by Varcurn in cleared funds, interest at the rate in force on the due date for payment pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 on the total amount outstanding accruing on a daily basis until payment is made, whether before or after any judgment.
16.2If at any time the payment of any Invoice falls overdue, whether such Invoice is issued by Varcurn under this Contract or any other Contract, all Invoices issued by Varcurn under this Contract or any other Contract shall immediately become due and payable.
16.3The Customer shall on demand fully indemnify and hold Varcurn harmless against all charges, costs, expenses and liabilities incurred by Varcurn or its agents in the collection of any monies due from the Customer whether under this Contract or any other Contract.
17. VARCURN’S LIABILITY
17.1Subject to Condition 17.2 and Condition 17.3, the total liability of Varcurn to the Customer in respect of:
17.1.1any breach of these Terms;
17.1.2any use made or resale by the Customer of any of the Goods, are of any product incorporating any of the Goods; and
17.1.3any representation, statement of tortuous act or omission including negligence arising under or in connection with the Contract in Contract, tort (including negligence/statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price paid for the Goods, exclusive of VAT.
17.2Nothing in these Terms limits or excludes Varcurn’s liability for:
17.2.1death or personal injury caused by our negligence;
17.2.2fraud or fraudulent misrepresentation;
17.2.3breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
17.2.2defective Goods under the Consumer Protection Act 1987.
17.3Subject to Clause 17.2, Varcurn will under no circumstances whatever be liable to the Customer, whether in Contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
17.3.1any loss of profits, sales, business, or revenue;
17.3.2loss of production, opportunity or loss of bargain;
17.3.3loss or corruption of data, information or software;
17.3.4loss of business opportunity;
17.3.5loss of anticipated savings;
17.3.6loss of goodwill; or
17.3.7any indirect or consequential loss;
17.3.8any claim for loss, damage or any liability of the Customer to any third party.
17.4Except as expressly stated in these Terms, Varcurn does not give any representation, warranties or undertakings in relation to the Goods which may or may not come from the particular manufacturer of the particular Goods. Any representations, conditions or warranties which might be implied or incorporated into these Terms by statute, common law, or otherwise, save for the conditions implied by section 12 of the Sales of Goods Act 1979 is excluded to the fullest extent permitted by law. In particular, Varcurn will not be responsible for ensuring that the Goods are suitable for the Customer’s purposes.
17.5The Customer acknowledges and agrees that in entering into the Contract, it does not rely on, and shall have no remedy against Varcurn in respect of any statement, representation, or warranty given by any person or manufacturer relating to the Goods or their supply (including as to condition, quality, and fitness for purpose and conformity with any sample). All warranties implied by statute, common law, custom or otherwise as to the condition or quality of the good, or fitness for purpose of the Goods, or correspondence with any sample are hereby excluded.
18.1Varcurn shall be entitled at any time with immediate effect and without prejudice to any other of its rights under the Contract following a breach of the Contract by the Customer which is incapable of remedy, or a remediable breach of this Contract which the Customer fails to remedy within 14 days (fourteen days) after notice of the breach, or a series of persistent breaches of the same provision of this Contract and the Customer commits a similar breach within 14 days (fourteen days) after notice of the breaches to:-
18.1.1suspend further performance of the Contract, and of any other Contract between Varcurn and the Customer until the default has been made good;
18.1.2terminate the Contract or any other Contract between Varcurn and the Customer or any unfulfilled part of the Contract; and
18.1.3make partial supplies of the Goods.
18.2Notwithstanding such termination as set out in Clause 18.1 the Customer shall pay to Varcurn the Price for all completed work, all materials used and for all or any Goods delivered up to and including the date of termination (including VAT and the cost of delivery).
18.3The Customer shall on demand fully indemnify and keep Varcurn fully indemnified against any resulting loss, damage or expense incurred by Varcurn in connection with the supply or non-performance or termination of the Contract whether in whole or in part, including but not limited to the cost of any material, plant or tools used or intended to be used and the cost of labour and other overheads including a percentage in respect of profit.
18.4Either party shall be entitled to terminate the Contract immediately by notice to the other party if the following events occur in relation to the other party: the other party shall be made bankrupt, or if a body corporate, be dissolved, liquidated or wound up or have a petition for winding up presented against it which is not withdrawn within 30 days (thirty days) of its presentation or pass a resolution for voluntary winding up, or have a petition for the making of an Administration Order presented against it, or have a Receiver or Administrative Receiver appointed to the whole or a part of its undertaking or assets or convene any meeting of its creditors or make an arrangement or otherwise compound or compromise with its creditors or cease or threaten to cease trading or suffer any similar event in any jurisdiction relevant to that party.
19 FORCE MAJEURE
19.1Varcurn will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under a Contract that is caused by an Force majeure Event, as defined below in Clause 19.2.
19.2If Varcurn is prevented or hindered from performing the Contract or any part of the Contract by circumstances beyond its reasonable control including (without limitation) acts of God, strikes, lockouts or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure, fire, flood, civil commotion, riot, protest, terrorism problem, war, natural emergency or any course of whatever kind and whenever occurring (“Force Majeure Event”), further performance of the Contract shall be suspended for so long as Varcurn is so prevented or hindered. Varcurn shall not have liability to the Customer for direct, indirect or consequential loss or damage suffered by the Customer because of delayed delivery, non-delivery or otherwise as a result of Varcurn’s inability to perform our obligations under the Contract by reason of any such circumstances.
19.3The Contract is not cancellable by the Customer upon the occurrence of a Force Majeure Event without the express written consent of Lee Curnow or other Authorised Person acting on behalf of Varcurn.
20 COMMUNICATIONS BETWEEN US
20.1Notices under this Contract shall be in writing by email or sent by hand, courier, registered post, first class post to the address of the other party (or any other address, which a party by notice states for this purpose). If the Customer gives notice verbally, they must also confirm in writing as above.
20.2Notices shall be deemed to have been received: if sent by email, hand, courier or registered post, on delivery; if sent by post, on the second day from but excluding the day of posting if sent to an address in the United Kingdom.
21 OTHER IMPORTANT TERMS
21.1Varcurn may transfer its rights and obligations under a Contract to another organisation, but this will not affect the Customer’s rights or obligations under these Terms.
21.2Unless otherwise stated, the Customer shall not without Varcurn’s prior written consent assign, transfer, sub-Contract, delegate, charge or mortgage or otherwise dispose of the benefit of this Contract or any of its rights, obligations or authorization under this Contract.
21.3This Contract is between the Customer and Varcurn. No other person shall have any rights to enforce any of its terms whether Contractual, statutory or otherwise whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.