Website Terms and Conditions of Sale
TERMS AND CONDITIONS FOR WEBSITE SALE OF TYRES AND TYRE FITTING SERVICES
1.1 In these Conditions:
'BCL' means Blackcircles.com Limited, a company incorporated under the Companies Acts (Company No. SC224310) and having its registered office at Unit 3, Rowan Court, Kingsmeadows Rd, Peebles, Scotland EH45 9BU;
'BCL Site' means the website published by BCL on the World Wide Web of the Internet with the uniform resource locator http://www.blackcircles.com;
'Conditions' means these terms and conditions for website sale of tyres and tyre fitting services;
'Contract' means the contract for the purchase and sale of the Goods as constituted and evidenced by the Customer's Order and the Order Confirmation;
'Customer' means the person whose offer for the Goods is accepted by BCL;
'Customer's Order' means an order from the Customer submitted to BCL through the BCL Site by completion of the staged ordering process set out therein through submission of forms and following a series of hypertext links as directed on the BCL Site;
'Force Majeure' means any Act of God, explosion, flood, tempest, lightning strike, fire, accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock outs or other industrial actions or trade disputes (whether involving employees of BCL or of a third-party), difficulties in obtaining raw materials, labour, fuel, parts or machinery or power failure or breakdown in machinery;
'Fully Fitted Service' means the service provided by BCL for the sale of tyres to Customers via the BCL Site and the subsequent arranging of fitting of such tyres to Customers' vehicles using third party service providers;
'Goods' means the tyres (including any fitting of the tyres or any parts for them) or services which BCL is to supply in accordance with these Conditions;
'Mail Order Service' means the service provided by BCL via the BCL Site for the sale and delivery of tyres only to Customers;
'Order Confirmation' means confirmation in Writing by BCL of acceptance of the Customer's Order issued prior to supply of the Goods to the Customer;
'Writing' includes electronic mail, telex, cable, facsimile transmission and comparable means of communication.
2. BASIS OF THE SALE
2.1 BCL shall sell and the Customer shall purchase the Goods in accordance with the Customer's Order and Order Confirmation, subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such offer is made or purported to be made by the Customer.
2.2 The Customer acknowledges that the website text, price lists, lists of items for sale or other sales literature published on the BCL Site constitute an invitation to treat and may not be construed by the Customer as any offer by or binding obligation upon BCL to sell any item to the Customer.
2.3 No variation to these Conditions shall be binding unless agreed in Writing between authorised representatives of the Customer and BCL.
2.4 BCL's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by BCL in Writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed.
2.5 Any advice or recommendation given by BCL or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by BCL is followed or acted upon entirely at the Customer's own risk, and accordingly BCL shall not be liable for any such advice or recommendation which is not so confirmed.
2.6 Whilst every effort is made by BCL to ensure no such error or omission occurs, any typographical, clerical or other error or omission in any sales literature, price list, website text, acceptance of offer, invoice or other document or information issued by BCL shall be subject to correction without any liability on the part of BCL.
3. OFFERS AND SPECIFICATIONS
3.1 The Customer's Order shall not be deemed to be accepted by BCL unless and until the Order Confirmation has been issued to the Customer.
3.2 The Customer shall be responsible to BCL for ensuring the accuracy of the terms of the Customer's Order submitted by the Customer, and for giving BCL any necessary information relating to the Goods within a sufficient time to enable BCL to perform the Contract in accordance with its terms. BCL shall incur no liability resulting from inaccurate information being supplied by the Customer.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Order Confirmation.
3.4 BCL reserves the right to change the Goods or any relative specifications (whether such specifications have been submitted by the Customer in the Customer's order or otherwise) and designs at any time, without notice, as a result of changes in the law or at the sole discretion of BCL.
3.5 Subject to Clause 8.1, the Customer's Order may not be cancelled by the Customer after the Order Confirmation has been issued except with the agreement in Writing of BCL and on terms that the Customer shall indemnify BCL 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 BCL as a result of cancellation by the Customer of the Customer's order.
4. PRICE OF THE GOODS
4.1 The price of the Goods shall be the price specified by BCL in the Order Confirmation, or, where no price is quoted in the Order Confirmation, the price listed in BCL's price list or website text on the BCL Site current at the date and time of the Order Confirmation.
4.2 BCL reserves the right, by giving notice to the Customer at any time before issuing of the Order Confirmation, to increase the price of the Goods to reflect:-
- 4.2.1 any increase in the cost to BCL which is due to any factor beyond the control of BCL (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),
4.2.2 any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or
4.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give BCL adequate information or instructions.
4.3 The price of the Goods shall be inclusive of any applicable Value Added Tax.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Customer and BCL, BCL shall be entitled to payment in full for the price of the Goods (including VAT) on the date of the Customer's Order. BCL shall debit the Customer's credit/debit card with payment in full for the Goods and applicable Value Added Tax on or after the date of the Customer's Order;
5.2 The Customer shall be obliged to pay the price of the Goods on the date of the Customer's Order. BCL shall be entitled to recover the price of the Goods, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued.
5.3 If the Customer fails to make any payment by the relevant due date or if payment is declined or not authorised by the issuer of the Customer's credit/debit card when processed by BCL then, without prejudice to any other right or remedy available to BCL, BCL shall be entitled to:
- 5.3.1 cancel the Contract or suspend any further deliveries to the Customer;
5.3.2 appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and BCL) as BCL may think fit (notwithstanding any purported appropriation by the Customer); and
5.3.3 charge the Customer interest (both before and after any decree or judgement) on any amount unpaid, at the rate of four per cent per annum above the Bank of Scotland base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Where a Customer has booked the Mail Order Service, delivery of the Goods shall be made by BCL or its nominated carrier delivering the Goods to the delivery address specified in the Order Confirmation or such other address as shall be approved of in advance by BCL.
6.2 Where a Customer has booked the Fully Fitted Service, delivery of the Goods shall be made by BCL when the Goods are fitted to the Customer's vehicle by the fitting centre specified in the Order Confirmation or such other address as shall be approved of in advance by BCL.
6.3 Any dates quoted for delivery and/or fitting of the Goods are approximate only and not guaranteed and BCL shall not be liable for any delay in delivery and/or fitting of the Goods howsoever caused. Time for delivery or fitting shall not be of the essence of the Contract unless previously agreed by BCL in Writing. Where the Mail Order Service is booked by the Customer, the Goods may be delivered by BCL in advance of the quoted delivery date upon giving reasonable notice to the Customer.
6.4 If the Customer fails to take delivery of the Goods or fails to give BCL adequate delivery instructions in the Customer's Order then, without prejudice to any other right or remedy available to BCL, BCL may:
- 6.4.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.4.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract; or
6.4.3 return the Goods to the supplier and charge the Customer for any costs incurred as a result of such return.
6.5 Delivery of the Goods shall be evidenced by the return to BCL of its or its authorised carriers' official packing/delivery note which, howsoever signed as acknowledgement of receipt of the goods, shall constitute absolute proof of delivery of the items specified in it.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Customer:
- 7.1.1 in the case of the Mail Order Service at the time when the Goods are delivered to the delivery address specified in the Customer's Order or such other address as shall have been approved of in advance by BCL; or
7.1.2 in the case of the Fully Fitted Service (subject to the terms and conditions of the relevant tyre fitting agreement between BCL and the relevant fitting centre to the contrary which, if any such agreement exists, shall take precedence) at the time when the Customer is notified that the Goods have been fitted and are ready for collection.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title to and in the Goods shall not pass to the Customer until all sums due by the Customer to BCL (including any applicable interest and charges) have been paid in full.
7.3 Until such time as the property in the Goods passes to the Customer, the Customer shall keep the Goods separate from those of third parties and properly stored, protected and insured and identified as BCL's property.
7.4 Until such time as the property in the Goods passes to the Customer, BCL shall be entitled at any time to require the Customer to deliver up the Goods to BCL and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods. The Customer shall be obliged to assist and allow BCL to repossess the Goods.
7.5 The Customer shall not be entitled in any way to charge by way of security for any indebtedness any of the Goods which remain the property of BCL, but if the Customer does so, all moneys owing by the Customer to BCL shall (without prejudice to any other right or remedy of BCL) forthwith become due and payable.
8.1 In the case of the Mail Order and Fully Fitted Services and subject to Clause 8.2, within 7 days of the day after the day of delivery of the Goods to the Customer, or before the arranged fitting date, the Customer shall be entitled to cancel the Contract, return the Goods and receive a full refund (or where the goods have not been paid for, full credit), provided that the Goods have not been used in any way, are in the same good condition in which they were received by the Customer and are returned to BCL. In such event the Customer shall be responsible for the costs of returning the Goods and shall indemnify BCL or demand against all and any such costs. If BCL collect the goods, BCL retains the right to charge the customer for any direct costs associated with the return of the goods. No additional restocking charge or administrational charge will be added in accordance with Distance Selling Regulations. Blackcircles.com customer service centre can be contacted for an accurate cost on returning goods as costs may vary depending on tyre specification and location For more information on your right to withdraw from your purchase within the seven working day cooling-off period, visit the Department of Trade and Industry's website at: http://www.dti.gov.uk/consumers/buying-selling/distance-selling/index.html
8.2 Subject to Clause 8.1, refunds to the Customer are entirely at the discretion of BCL. In the event that BCL, in their sole discretion, grant a refund to a Customer, any costs incurred by BCL in procuring that refund shall be borne by the Customer.
9.1 BCL shall be under no liability in respect of any defect in the Goods arising from any inaccuracy in the Customer's Order. BCL shall have no liability for errors in any Customer's Order and any loss (or otherwise) that may arise therefrom.
9.2 BCL shall be under no liability in respect of any defect in the Goods arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow BCL's instructions (whether oral or in writing) or misuse or alteration or repair of the Goods without BCL's approval.
9.3 Save 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.
9.4 Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to BCL in Writing within 48 hours from the date of delivery or fitting (in the case of Fully Fitted Service) or where the defect or failure was not apparent on reasonable inspection) within 24 hours after discovery of the defect or failure.
9.5 Subject to Clause 8.1, if delivery is not refused, and the Customer does not notify BCL in accordance with Clause 9.4, the Customer shall not be entitled to reject the Goods and BCL shall have no liability for such defect or failure.
9.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to BCL in accordance with these Conditions, BCL shall be entitled to replace the Goods (or the part in question) free of charge or, at BCL's sole discretion, refund to the Customer the price of the Goods (or a proportionate part of the price), but BCL shall have no further liability to the Customer or any other person.
9.7 Except in respect of death or personal injury caused by BCL's negligence, BCL shall not be liable to the Customer 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 any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of BCL, its employees or agents or otherwise) which arise out of or in connection with the supply or fitting of the Goods or their use or resale by the Customer, and the entire liability of BCL under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
9.8 BCL shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of BCL's obligations in relation to the Goods, if the delay or failure was due to any Force Majeure or other cause beyond BCL's reasonable control.
10. INSOLVENCY OF CUSTOMER
10.1 If the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), has a receiver, liquidator or administrator appointed over any of its property or assets, ceases, or threatens to cease, to carry on business, or if BCL reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly, then without prejudice to any other available right or remedy, BCL shall be entitled to cancel the Contract or suspend any further deliveries without any liability to the Customer, and if the Goods have been delivered, but not paid for, the price of the Goods shall become immediately due and payable in full notwithstanding any previous agreement or arrangement to the contrary.
11.1 BCL may perform any of its obligations or exercise any of its rights hereunder by itself or where applicable through any other persons (legal or otherwise) or entities.
11.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party 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.
11.3 No waiver by BCL of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
11.5 The Contract and these Conditions shall constitute the entire agreement between the Customer and BCL in respect of the supply of the Goods and shall supersede all previous oral or written representations or agreements relating thereto. In particular, the Customer may not rely on any statements made by any employee, representative or agent of BCL.
11.6 BCL may assign the Contract with the Customer or sub-contract the whole, or any part thereof to any other person (legal or otherwise) or entity. Unless otherwise agreed in Writing, the Customer may not assign either the benefit or the burden of any contract with BCL.
11.7 The Contract shall be governed by the law of Scotland and the Customer agrees to submit to the non exclusive jurisdiction of the Scottish courts.