In these Conditions:
“Business Day”: a day (other than a Saturday, Sunday or public holiday) when banks in the city of Edinburgh are open for business;
“Company” means Cosmo Ceramics Limited, a Scottish company with registered number SC077518, and having its registered office at 515 Lawmoor Street, Dixons Blazes Industrial Estate, Glasgow G5 0TY;
“Conditions” the terms and conditions set out below, as amended from time to time in accordance with their terms;
“Contract” means the contract between the Customer and the Company for the sale and purchase of Goods in accordance with these Conditions;
“Goods” means the goods to be supplied to the Customer by the Company in accordance with these Conditions;
“Order” means the Customer’s order for Goods made using the Order Form;
“Order Form” means the Company’s standard order form (whether online or offline) to be used by Customers when ordering Goods; and
“Website” means the Company’s website located at www.cosmoceramics.co.uk.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors or permitted assigns.
A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
A reference to writing or written includes faxes and e-mails.
CONDITIONS OF SALE AND FORMATION OF CONTRACT
Goods are sold under these Conditions to the exclusion of any terms or conditions referred to or supplied by the Customer, or which may otherwise be implied by trade, custom, practice or course of dealing. Acceptance by or on behalf of the Customer of delivery of any Goods shall in any event constitute the Customer’s acceptance of these Conditions.
These terms and conditions deal with all sales of Goods by the Company but please note that some of these conditions apply only to Orders made via the Website and/ or Orders made by a Customer who is contracting with the Company as a consumer.
If you plan to place an Order on the Website, please click on the button marked "I Accept" on the Website, to indicate that you accept these terms and conditions.
None of the Company’s personnel are authorised to vary these Conditions, unless by a written amendment signed by a duly authorised signatory of the Company and expressly making reference to these Conditions.
All Orders constitute only an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order submitted by the Customer are complete and accurate.
No Order shall be deemed to be accepted unless (i) the Company issues an express written acceptance of it (which may be by email) (ii) the Company provides the Customer with an invoice in respect of the relevant Goods or (iii) the Company delivers the relevant Goods, at which point the Contract will come into existence. Please note that an acknowledgement of an Order does not constitute an acceptance of it.
The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
If you are a consumer please note that nothing in these Conditions affects your statutory rights as a consumer, including but not limited to your right to cancel a Contract concluded following an order on the Website or otherwise concluded a distance (e.g. over the phone).
ACCOUNTS AND PAYMENT
An application form for credit if desired, may be obtained from the Company and time should be allowed for necessary enquiries to be completed.
Unless expressly stipulated in writing by the Company (in relation to, for example, in-store or online orders which require immediate payment) payment for Goods should be made no later than 30 days following the month of the relevant invoice without any setoff or other deduction.
In addition to any other of the Company’s rights, if payment is not made when due (i) interest may be charged on any overdue amount from the date on which payment was due to that on which it is made before or after any judgement on a daily basis at the rate of 3%above the Clydesdale Bank plc base rate from time to time in force, compounded monthly, (ii) all other invoices, whether or not they are otherwise due for payment, shall become immediately due and payable, and (iii) the Company reserves the right to apply amounts received first in settlement of interest on overdue debts then on debts due beginning with the oldest. The Customer shall also pay all legal and other costs incurred by the Company in recovering any amounts owing by the Customer and (where applicable) any Goods in which title has been retained by the Company, and such costs shall be due for payment immediately on invoice.
Goods that are to be delivered may be consigned to destinations in Great Britain. The form of packaging and transport shall be at the Company’s discretion.
Unless otherwise agreed in writing the Company will not consign or otherwise
deliver Goods to any parties other than those who are paying for the Goods.
If the Customer fails to take delivery of any Goods when tendered in accordance with the Company’s instructions, or to provide adequate delivery instructions, or to collect the Goods when notified they are ready for collection, the Company at its discretion may exercise any or all of the following rights: namely (i) to store the goods at risk to the Customer, (ii) to require the Customer to pay all storage, transportation, handling or other charges (including expenses in connection with the delay or detention of vehicles) incurred by the Company as a result of such failure and (iii) to require the Customer to pay for the Goods as though the delivery has taken place.
CONDITION OF GOODS.
The Customer shall inspect the goods at the first possible opportunity following delivery.
In respect of any Goods in which damage, pilferage or shortage is revealed on delivery, or which are not delivered, the Customer must give the Company (and any third party carrier where applicable) written notice of any claim as soon as possible and in any case within 7 working days of receipt.
If any responsibility is accepted by the Company in respect of any missing or damaged Goods, the Company’s liability (other than any liability which we may not lawfully exclude) will be limited to replacing the goods or, at its discretion, allowing credit for their invoice value.
Any samples, descriptive matter, or advertising produced by the Company or its suppliers are provided for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
If we agree to uplift Goods which are alleged to be deficient in any way, this is not an admission of liability by the Company and is strictly subject to a quality check by the Company on return. The Company reserves the right to withhold refunds or credit if Goods are not returned in compliance with our returns policy.
Goods must be returned within 30 days of delivery and returns are conditional on the Customer providing proof of purchase. Plain tiles are only accepted in full boxes, and we may at our discretion accept the return of decorative tiles that are unboxed.
Sale offers and special order Goods are strictly non-returnable. The return of any Goods may be subject to a re-stocking charge.
Consumers may have additional rights of return as detailed below.
If you are contracting with us as a consumer and (1) you place an order for standard Goods which are not the subject of a specification or special order and (2) the Order is placed via the Website or by telephone, then you may have the right to cancel your order within a fourteen day cooling off period beginning the day after you receive the Goods.
AGREEMENTS, CREDITS AND SUPPLIES
The Company shall have the right at its discretion and without being required to give any reason, notwithstanding any prior agreement with the Customer or any contract which the Customer may have with a third party, to exercise, without liability to the Customer or any third party, at any time either or both of the following rights, namely (i) to withdraw or limit the amount of any credit granted to the Customer and require the price of any Goods to be paid in a manner satisfactory to the Company and to refrain from delivering the Goods until the price has been so paid, and (ii) to terminate any agreement to make supplies to any person.
ALTERATIONS OF PRICES AND TERMS
The Company reserves the absolute right at any time to alter any of the selling prices of the Goods without any notice whatsoever however the price applicable to any particular Goods shall be the price as at the time of formation of the relevant Contract.
The Company reserves the absolute right at any time to alter the credit terms afforded to any Customer provided always that such alteration is reasonable in the circumstances and does not contravene applicable laws and regulations.
If Goods are to be delivered then any dates quoted for delivery are approximate only, and the time of delivery is not of the essence of the Contract.
The Company will make reasonable endeavours to meet specific Customer requirements regarding the date and time of delivery/availability and at its discretion, where an inability to satisfy a Customer’s delivery requirements is identified, to inform the customer accordingly, but the Company shall not be liable for any loss, damage or expense arising from any delay in failure in delivery arising from a Force Majeure Event (as defined below), or from the act or omission of the Customer
If the Company fails to deliver the Goods, its liability (save for liability that cannot lawfully be excluded) shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
If 10 Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
The Company endeavours to secure high standards of material and workmanship and accordingly will, within a reasonable period, replace at the original point of delivery or at its option, allow credit on the invoice value of any Goods in which any defect of workmanship or materials is shown (to the Company’s satisfaction) to have existed at the time of despatch by the Company, provided that the Customer has given the Company written notice of the defect immediately upon its becoming apparent and in any event within (28 days) from receipt of the relevant Goods and has afforded the Company a reasonable opportunity to examine the Goods in question.
The Company warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
(1) conform in all material respects with their description;
(2) be free from material defects in design, material and workmanship; and
(3) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
The Company shall not be liable for Goods' failure to comply with the above warranty in any of the following events:
(1) the Customer makes any further use of such Goods after giving notice to the Company of an alleged defect or discrepancy;
(2) the defect or discrepancy arises because the Customer failed to follow the Company's oral or written instructions as to the storage, fixing, use or maintenance of the Goods, or (if there are no such instructions) good trade practice regarding the same;
(3) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
Except as expressly provided in these Conditions, the Company accepts no liability (other than liability which the company may not lawfully exclude under the Sale of Goods Act 1979 or other legislation), express or implied for the quality or condition of the Goods or their suitability or fitness for any particular purpose or use under specific conditions (in either case whether or not known to the Company) and it is the sole responsibility of the Customer to ensure that the goods will meet its requirements.
The Company shall have no liability in respect of any claim by the Customer under these Conditions unless the Customer has afforded the Company reasonable opportunity and facilities for the investigation of any claim and the making good of any discrepancy or defect, which opportunity must be given (in the case of any discrepancy or defect which is reasonably apparent on inspection) within a period of not more than 3 days from the date on which notice of the claim is given and before the Goods are used or re-sold.
It is the responsibility of the Customer to ensure that Goods are of an acceptable blend, specification and condition before fixing. The Customer expressly agrees and understands that the Company shall not be liable for any defect or discrepancy in respect of the Goods after the tiles have been fixed (other than in respect of liability which may not be lawfully excluded by the Company).
No Goods may be returned without the Company’s prior written authorisation. Goods will be collected by the Company unless alternative arrangements are agreed in writing.
Any Goods which have been replaced by the Company following the acceptance of a claim, shall belong to the Company and may be disposed of only in accordance with the Company’s instructions.
Except as expressly provided in these Conditions or otherwise agreed in writing by it:
The Company shall have no obligation, duty, or liability in contract, tort, or delict (including negligence or breach of statutory duty) or otherwise howsoever in connection with the Goods except as set out in this Contract and except that the Company does not exclude liability for (1) death or personal injury resulting from its negligence (2) fraud or fraudulent misrepresentation (3) breach of terms implied by section 12 of the Sale of Goods Act (4) defective Goods under the Consumer Protection Act 1987 or (5) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
The Company shall not be liable to the Customer for any indirect or consequential loss, including but not limited to
(1) wasted time or expenditure;
(2) loss of profits;
(3) loss of production;
(4) loss of business revenue
(5) loss of expected savings
(6) loss of or goodwill or
(7) any claim by any person against the Customer
nor (except as provided above) shall the Company be liable for any loss or damage to any goods or injury (including death) to any person caused by or arising from the use or attempted use of the Goods.
The Company shall have no liability for any advice, opinion or information furnished by the Company or its personnel unless given in writing by an employee authorised in writing by a Director of the Company to furnish the same, in response to a written request by the Customer. Where the Company is liable for any such advice, opinion or information, its liability shall be limited to the invoice value of the Goods supplied by the Company.
The Company shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond the Company’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or adverse weather conditions, or default of suppliers or subcontractors.
RETENTION OF TITLE
Whether or not risk in the Goods shall have passed to the Customer, the property and title in the Goods shall be and remain with the Company until the Company has received in cash or cleared funds payment in full for the Goods and for all other goods supplied by the Company to the Customer, and all other sums then outstanding from the Customer to the Company.
Until the property and title to the Goods passes the Customer shall:
(1) hold the Goods on a fiduciary basis as bailee for the Company and ensure that they are at all times clearly identified as the property of the Company;
(2) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
(3) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
Until the property and title to the Goods passes to the Customer, the Company shall be entitled at any time on demand to:
(1) Repossess and sell all or any of the Goods and thereby terminate (without any liability to the Customer) the Customer’s rights to use or sell them, and
(2) Enter any premises where Goods are located for the purpose of inspecting and/or repossessing them.
(3) raise and maintain an action against the Customer for the price of the Goods although title to them has not passed to the Customer.
The Company transfers to the Customer only such property, title and rights of use as the Company has in any Goods.
Where the Customer is consumer, the statutory rights of the consumer are not affected by these Conditions.
CUSTOMER’S INSOLVENCY OR INCAPACITY
If the Customer becomes subject to any of the events numbered 1 - 12 below, or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Company, the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
For the purposes of the above clause, the relevant events are:
(1) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(2) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(3) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(4)(being an individual) the Customer is the subject of a bankruptcy petition or order;
(5) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(6) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(7) (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(8) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(9) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 1 – 8 (inclusive);
(10) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(11) the Customer's financial position deteriorates to such an extent that in the Company's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(12) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
WEBSITE AND WEB ORDERS
By ordering any Goods on the Website, you agree to be bound by these terms and conditions. If you refuse to accept these terms and conditions, you will not be able to order any Goods from the Website.
After placing an Order on the Website, you will receive an e-mail from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted. Your order constitutes an offer to us to buy Goods. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an e-mail that confirms that the Goods have been dispatched. The Contract will only be formed when we send you the dispatch confirmation.
If you are contracting with us via the Website as a consumer and the Goods ordered are not subject to a specification or special order, you may cancel a Contract at any time within seven working days, beginning on the day after you receive the Goods. In this case, you will receive a full refund of the price paid for the Goods.
If you are a consumer and you return Goods ordered via the Website to us because you have cancelled the Contract within the seven-day cooling-off period referred to above, we will process the refund due to you as soon as possible and, in any case, within 30 days of the day on which you gave us notice of cancellation. In this case, we will refund the price of the Goods in full, and any applicable delivery charges. However, you will be responsible for the cost of returning the Goods to us. To cancel a Contract under the cooling off period, you must inform us in writing. You must also return the Goods to us as soon as reasonably practicable, and at your own cost. You have a legal obligation to take reasonable care of the Goods while they are in your possession. If you fail to comply with this obligation, we may have a right of action against you for compensation.
Nothing in these Conditions affects your statutory rights as a consumer.
The price of Goods available for purchase on the Website will be as quoted on our site from time to time, except in cases of obvious error and will include details of applicable VAT. If the pricing error is obvious and unmistakeable and could have reasonably recognised by you as an error, we do not have to provide the Goods to you at the incorrect (lower) price. All prices for Goods detailed on the Website will be in pounds sterling unless clearly stated otherwise.
DATA PROTECTION AND PRIVACY
These conditions below set out the basis on which any personal data we collect from you, or that you provide to us, will be processed by us. Please read the following carefully to understand our views and practices regarding your personal data and how we will treat it.
For the purpose of the Data Protection Act 1998 (the Act), the data controller is the Company.
We may collect and process the following data about you:
We may obtain information about your general internet usage by using a cookie file which is stored on your browser or the hard drive of your computer. Cookies contain information that is transferred to your computer's hard drive. They help us to improve our site and to deliver a better and more personalised service. Some of the cookies we use are essential for the Website to operate.
You may block cookies by activating the setting on your browser which allows you to refuse the setting of all or some cookies but note that if you block cookies you may not be able to access all or parts of our site.
By submitting your personal data, you agree to us storing it and transferring it where required for storing or processing by a third party. We will take all steps reasonably necessary to ensure that your data is treated securely and in accordance with these Conditions.
All information you provide to us is stored on our secure servers. Any payment transactions will be encrypted. If we issue you with a password for us on the Website, you are responsible for keeping it confidential.
We use information held about you in the following ways:
We will only use your details for marketing purposes if you have consented to this or previously bought similar goods from us.
We may disclose your personal information to any member of our group of companies.
We may disclose your personal information to third parties:
You have the right to ask us not to process your personal data for marketing purposes. We will usually inform you (before collecting your data) if we intend to use your data for such purposes or if we intend to disclose your information to any third party for such purposes.
The Website may, from time to time, contain links to and from the websites of third parties. If you follow a link to any of these websites, please note that these websites have their own terms and conditions and that we do not accept any responsibility or liability for them.
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission subject to prove of successful transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by the Company to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Company.
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with Scots law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Scotland.