Terms and Conditions of Sale

Terms and conditions for website sale of tyres and tyre fitting services:

1. INTERPRETATION

1.1 In these conditions:

"Buyer" means the legal or natural person whose order for the Goods is accepted by the Seller.

"Buyer’s Order" means an order from the Buyer submitted to the Seller through the Net Site by completion of the staged ordering procedure set out there by the submission of forms and following a sequence of hypertext links as specified on the Net Site.

"Conditions" means these terms and conditions of sale and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.

"Contract" means the contract for the purchase and sale of the Goods being, unless the context otherwise requires, as constituted by the Buyer’s Order and the Order Confirmation.

"Fully Fitted Service" means the service provided by the Seller for the sale of tyres to Buyers via the Net Site and the subsequent arranging of fitting of such tyres to Buyers’ vehicles using third party service providers.

"Goods" means the tyres (including any fitting of the tyres and or any parts for them) to be supplied by the Seller to the Buyer pursuant to the Contract and in accordance with the Conditions.

"Mail Order Service" means the service provided by the Seller via the Net Site for the sale and delivery of tyres to Buyers.

"Net Site" means the website published by the Seller on the World Wide Web of the Internet with the uniform resource locator http://www.netatyre.co.uk.

"Order Confirmation" means confirmation in Writing by the Seller of acceptance of the Buyer’s Order issued prior to supply of the Goods to the Buyer.

"Seller" means Net A Tyre Limited (registered in Scotland under registration number SC318624) whose registered office is at 179 Rumblingwell, Dunfermline, Fife KY12 9AR.

"Writing" includes electronic mail, telex, cable, facsimile transmission and comparable means of transmission and communication.

1.2 Any reference in these Conditions to any provision of a statute shall be constructed as a reference to that provision as amended, reenacted 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 SALE

2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with the Buyer’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 offer is made, accepted or purported to be accepted, or any offer is made or purported to be made by the Buyer. No contract shall exist between the Seller and the Buyer unless and until the Seller acknowledges to the Buyer in writing that such a contract exists between them or the Seller acts in reliance on the Contract.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller 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 the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller 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, Order Confirmation, invoice, website text or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.6 The Buyer accepts that the website text, price lists, lists of items for sale, or other sales literature issued by the Seller or published on the Net Site constitute an invitation to treat and shall not be capable of being construed by the Buyer as an offer by or binding obligation on the Seller to sell any good to the Buyer.

3. ORDERS AND SPECIFICATIONS

3.1 The Buyer’s Order shall not be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative by an Order Confirmation.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the Buyer’s Order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms. The Seller shall incur no liability arising from the inaccuracy of information supplied by the Buyer.
3.3 The quantity, quality, description and any specification for the Goods shall be those set out in the Order Confirmation.
3.4 The Seller reserves the right to change the Goods or the specification or design of the Goods which are required to conform with any applicable safety or other statutory requirements or at the Seller’s sole discretion.
3.5 Subject to clause 10, no Buyer’s Order which has been accepted by the Seller by issue of an Order Confirmation may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller 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 the Seller as a result of such cancellation.

4. PRICE OF THE GOODS

4.1 The price of the Goods shall be the price specified by the Seller in the Order Confirmation or, where no price has been so specified, the price listed in the Seller's published price list or website text on the Net Site current at the date and time of the Order Confirmation.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before issue of the Order Confirmation, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (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 specification 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 the Seller adequate information or instructions.
4.3 The price of the Goods is inclusive of any applicable Value Added Tax.

5. TERMS OF PAYMENT

5.1 The Seller shall be entitled to payment in full for the price of the Goods on the date of the Buyer’s Order. The Seller shall debit the Buyer’s credit/debit card with payment in full for the price of the Goods and applicable VAT on or after the date of the Buyer’s Order.
5.2 The Buyer shall be obliged to pay the price of the Goods on the date of the Buyer’s Order. The Seller 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 Buyer. 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 Buyer fails to make any payment on or by the due date or if payment is declined or not authorised then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:-
1. 5.3.1 cancel the Contract and/or suspend any further deliveries to the Buyer;
2. 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 the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
  
  and
3. 5.3.3 charge the Buyer interest (both before and after any decree or judgement) on the amount unpaid, at the rate of 4 per cent per annum above the base rate of the Bank of Scotland as it may be from time to time (compounded monthly) , until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

6. DELIVERY

6.1 Where a Buyer has nominated the Mail Order Service, delivery of the Goods shall be made by the Seller or its carrier delivering the Goods to the delivery address specified in the Order Confirmation or such other address as may be agreed to in advance by the Seller.
6.2 Where a Buyer has nominated the Fully Fitted Service, delivery of the Goods shall be made by the Seller when the Goods are fitted to the Buyer’s vehicle by the fitting centre specified in the Order Confirmation or such other address as may be agreed to in advance by the Seller.
6.3 Any dates quoted for delivery and/or fitting of the Goods are approximate only and not guaranteed by the Seller and the Seller shall not be liable for any delay in delivery and/or fitting of the Goods howsoever caused. Time for delivery and/or fitting shall not be of the essence of the Contract unless previously agreed by the Seller in writing. Where the Mail Order Service is nominated by the Buyer, the Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions in the Buyer’s Order (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
1. 6.4.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage;
  
  or
2. 6.4.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract;
  
  or
3. 6.4.3 return the Goods to the supplier and charge the Buyer for any costs of such return.
6.5 Delivery of the Goods shall be evidenced by the return to the Seller of its or its carriers’ packing/delivery note which, regardless of the way in which it has been signed as acknowledgement of the receipt of the Goods, shall be sufficient proof of delivery of the Goods specified in it.

7. RISK AND PROPERTY AND RETENTION OF TITLE

7.1 Risk of damage to or destruction or loss of the Goods shall pass to the Buyer:
1. 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 Buyer’s Order or such other address as may have been agreed to in advance by the Seller;
  
  or
2. 7.1.2 in the case of the Fully Fitted Service (subject to the terms and conditions of the relevant tyre fitting agreement between the Seller and the applicable tyre fitting centre to the contrary of which, if any such agreement exists, shall take precedence), at the time when the Buyer 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 provision of these Conditions, the title to and property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and payment in full (without set-off or counterclaim) of all and any other sums owed by the Buyer to the Seller, including any applicable interest and charges.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall store the Goods separately from those of the Buyer and any third party, shall ensure that the Goods are clearly marked as the property of the Seller, and shall keep the Goods adequately protected and insured as the Seller’s property. The Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for an indebtedness, any of the Goods which remain the property of the Seller but, if the Buyer does so, all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8. WARRANTIES AND LIABILITY

8.1 The Seller shall be under no liability in respect of any defect in the Goods arising from any inaccuracy in the Buyer’s Order nor any liability arising from any errors in the Buyer’s Order.
8.2 The Seller shall be under no liability in respect of any defect in the Goods arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval.
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 Any claim by the Buyer 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 Buyer) be notified to the Seller in writing within 48 hours from the date of delivery or fitting (in the case of the Fully Fitted Service) or (where the defect or failure was not apparent on reasonable inspection) within 24 hours after discovery of the defect of failure. Subject to clause 10, if delivery is not refused, and the Buyer does not notify the Seller of the alleged defect in accordance with these Conditions, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.5 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 the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge, or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
8.6 Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation, 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 consequential compensation whatsoever (and whether caused by negligence of the Seller, 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 Buyer, except as expressly provided in these Conditions, and the entire liability of the Seller under the Contract shall in no event exceed the price of the Goods. Further and without limitation, where the Buyer uses the Fully Fitted Service, the Seller shall not be liable to the Buyer in respect of any loss, damage, costs, expenses and claims suffered by the Buyer arising from any defect or failure in the fitting of tyres to the Buyer’s vehicle by the fitting centre which carries out the fitting.
8.7 The Seller 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 the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:
1. 8.7.1 Act of God, explosion, flood, tempest, fire or accident;
2. 8.7.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
3. 8.7.3 act, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
4. 8.7.4 import or export regulations or embargoes;
5. 8.7.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
6. 8.7.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
7. 8.7.7 power failure or breakdown in machinery

9. INSOLVENCY OF BUYER

9.1 This clause 9 applies if:
1. 9.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or has a receiver or administrator appointed;
  
  or
2. 9.1.2 any third party takes possession of any of the property or assets of the Buyer;
  
  or
3. 9.1.3 the Buyer ceases, or threatens to cease, to carry on business;
  
  or
4. 9.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this clause 9 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract and/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.

10. RETURNS

10.1 In the case of the Mail Order Service and subject to clause 10.2, within 7 days of the day following the date of delivery of the Goods to the Buyer, the Buyer 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 Buyer, and are returned to the Seller. In that event, the Buyer shall be liable for the costs of returning the Goods and shall indemnify the Seller on demand against all such costs.
10.2 Subject to clause 10.1, refunds to the Buyer are entirely at the Seller’s discretion. If the Seller, in the Seller’s sole discretion, grants a refund to a Buyer, any costs sustained by the Seller in giving that refund shall be borne by the Buyer.

11. GENERAL

11.1 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.
11.2 No waiver by the Seller 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.
11.3 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 thereby.
11.4 The Contract shall be interpreted in accordance with and shall be subject to Scottish Law. The Buyer on entering the Contract submits to the non-exclusive jurisdiction of the Scottish Courts.
11.5 The Contract is personal to the Buyer and the Buyer shall not be entitled to assign or transfer or purport to assign or transfer to any other person any of its rights or obligations under the Contract in whole or in part. The Seller shall be entitled to assign or transfer any of its rights or obligations under the Contract without the Buyer’s consent. The Seller shall be entitled to sub-contract the whole or any part of the Contract to any other party.
11.6 The Seller may perform any of its obligations or exercise any of its rights under the Contract by itself or through any other party.
11.7 The Contract and these Conditions shall constitute the entire agreement between the Buyer and the Seller in respect of the supply of the Goods and shall supersede all previous oral or written representations or agreements relating thereto.