GENERAL CONDITIONS OF SALE of TRAILPARTS Ltd
APPLICATION
1 (1) In these Conditions, unless the context otherwise requires words denoting the singular include the plural and vice versa and:-
“Contract” means the contract for the sale and/or supply and purchase of the Goods.
“Customer” means the person so described overleaf.
“Goods” means the goods, works and/or services described overleaf and includes any or any part of them.
“Property Damage” means damage to or loss of any material property.
“Product Liability” means legal liability for accidental loss of or damage to any material property and/or accidental death of or personal injury to any person (except for any employee of the Supplier where it arises out of and in the course of employment) caused by any defect in the Goods, or in any other item supplied or hired by the Supplier to any person in or to any country except the United States of America and Canada.
“Supplier” means the persons carrying on business in partnership on the date of the Contract as TRAILPARTS Ltd.
“Writing” includes facsimile transmission and “person” includes any body corporate or unincorporate.
(2) These Conditions, the terms specified overleaf and any special conditions agreed to in writing by the Supplier constitute the entire agreement for the sale and/or supply and purchase of the Goods and supersede any terms or representations referred to in the Supplier’s sales literature or elsewhere. If any terms specified overleaf and/or any special conditions conflict with these Conditions, the former will prevail.
(3) Nothing in these Conditions will affect any of the Customer’s statutory rights as a consumer under the Sale of Goods Act 1979 (as amended at any time) or any other applicable legislation, and to the extent that the Customer enters into the Contract as a consumer it will be a Consumer Contract under these Conditions.
ORDERS AND SPECIFICATIONS
2 (1) Orders (including any acceptance of any estimate or quotation of the Supplier) will only bind the Supplier when it accepts them in writing or starts to fulfil them.
(2) The Goods may be changed to conform with product development (but without materially adversely affecting their quality or performance) or any applicable safety or other statutory requirements.
PRICE
3 (1) Unless the Supplier otherwise agrees in writing, the price of the Goods will be that specified on its price list current on the date of the Contract. All prices quoted and quotations are valid for 30 days only. All prices and other charges will be subject to any applicable value added tax and other taxes or duties which will be payable at the same time as the price of the Goods.
(2) Unless the Contract otherwise provides, the Customer will pay the Supplier’s charges for packaging, transport and insurance at the Supplier’s rates prevailing at the time of delivery.
(3) The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods:-
(a) to reflect any increase in the cost to the Supplier of supplying the Goods which is due to any factor beyond the Supplier’s control (such as any foreign exchange fluctuation, currency regulation, alteration of duties or material increase in the cost of manufacture), any change in delivery date, quantities or specification requested by the Customer, any delay caused by any instructions of the Customer or any failure or delay by the Customer in procuring the doing of anything which it has agreed to do under the Contract; and
(b) by an amount equal to the sum resulting from applying to the amount of that cost increase the Supplier’s profit margin under the Contract.
PAYMENT
4 (1) The Supplier may invoice the Customer for all sums payable under the Contract on or at any time after delivery or, if the Customer wrongfully fails to collect or take delivery or to give proper delivery instructions, at any time after it has notified the Customer that they are ready for collection or it has tendered delivery of them. The time for payment will be of the essence.
(2) Unless payment is to be made on delivery, the Supplier’s invoices will be payable within thirty days of their date. If the Supplier has serious doubts about the Customer’s ability to pay any sum under the Contract on the due date the Customer will within seven days of written notice from the Supplier pay the balance of all sums payable or becoming payable under the Contract (including any sum held or to be held by way of retention) or provide security for such payment to the Supplier’s satisfaction pending which the Supplier may suspend the performance of all or any of its obligations under the Contract.
(3) If the Customer fails to make any payment on the due date, without affecting its other rights, the Supplier may terminate the Contract or suspend any further deliveries, appropriate any payment by the Customer to such of the Goods as the Supplier decides and/or charge the Customer interest on the amount for the time being unpaid at the interest rate dictated by the Late Payment of Debt Interest Act 1998 until payment in full is made. Such interest will accrue daily and be payable both before and after judgment.
(4) All sums payable by the Customer must be paid in sterling without any deduction and regardless of any set-off, counterclaim or other claim or right.
DELIVERY
5 (1) The Supplier will use its reasonable endeavours to supply the Goods by any estimated delivery or completion date but the time for delivery or completion will not be of the essence of the Contract. The Goods will be delivered where stipulated by the Supplier.
(2) The Supplier may deliver the Goods by instalments as and when they are available. Where the Goods are or are to be delivered by instalments, each delivery will constitute a separate contract.
(3) If the Customer fails to collect or accept delivery of the Goods or give proper delivery instructions (unless due to the Supplier’s default) the Supplier may arrange for storage of the Goods at the Customer’s risk and expense until they are delivered or collected (including if applicable storage charges at the Supplier’s then prevailing rates and the cost of any redelivery) or, if the Supplier terminates the Contract, sell the Goods in its discretion.
TESTING, INSPECTION AND ACCEPTANCE OF GOODS
6 The Customer must notify in writing (otherwise than on a delivery document) (a) the Supplier and any carrier of any claim regarding the quantity or condition of Goods delivered or any damage to them within 3 working days of delivery and for non-delivery of the Goods within 3 working days of the date notified for delivery (if any) and (b) the Supplier of any claim regarding any defect which should be apparent on reasonable inspection within 3 working days of delivery, time being of the essence. Paragraph 8 will apply to any such defect or damage. If no such notice is given, so far as concerns those matters the Customer will be deemed to have accepted the Goods and that they conform with the Contract.
TITLE AND RISK
7 (1) Notwithstanding delivery and the passing of risk or any other provision of these Conditions, the legal and beneficial ownership of the Goods will remain with the Supplier which retains the right of disposal, until the
Supplier has received payment in cleared funds of :-
(a) all sums payable to the Supplier in relation to the Contract; and
(b) all other sums then due from the Customer to the Supplier in respect of the supply of any other goods or services, and any unused Goods shall be presumed covered by the latest invoice issued by the Supplier to the Customer.
(2) Until the property in the Goods passes to the Customer it shall :-
(a) hold the Goods as fiduciary agent and bailee for the Supplier which may, at any time and without prior notice, require the Customer to deliver up the Goods to the Supplier (whether or not they form part of or are affixed to anything) and, if it fails to do so forthwith, enter upon any land or buildings where the Goods may be situated with its representatives and appropriate transport, remove them from any land, building or other item and repossess the same. The Supplier will use reasonable skill and care in removing Goods but, subject thereto, the Customer will be responsible for and indemnify the Supplier in respect of all damage caused by such removal;
(b) not sell, part with possession of or do anything else inconsistent with the Supplier’s ownership of the Goods and ensure they do not become part of or affixed to any land or building and are kept separate from any other thing, properly stored and protected, clearly identified as the Supplier’s property and insured to their replacement value against all normal comprehensive risks.
(3) After the Supplier has repossessed any Goods it may sell them and the sale proceeds will belong to the Supplier absolutely. If the net proceeds received by the Supplier are less than the amount payable to it under the Contract it may recover the balance from the Customer.
(4) Risk in the Goods will pass on delivery. All insurance proceeds receivable by the Customer in respect of the Goods shall be held in trust by the Customer for the Supplier in a separate account and first be applied in or towards discharging any sums payable under the Contract.
WARRANTY
8 (1) The Supplier warrants that the Goods will correspond with their specification and description and sample (if any) at the time of delivery and if within twelve calendar months of the their being delivered or, as the case may be, completion of the supply of any services (or such other period as the Supplier may agree in writing) any defect in the Goods is discovered under normal use which is directly attributable to their not so corresponding or faulty design, materials or workmanship, or a valid claim is made under paragraph 6, the Supplier will at its option and expense remedy the defect or damage by replacement or repair or refund the purchase price of the defective or damaged Goods.
(2) The warranty will be subject to the following conditions:-
(a) it will not apply to any defect or damage resulting from any alteration of the Goods without the Supplier’s prior written consent, incorrect installation (except by the Supplier), overloading, normal wear and tear, misuse or use other than for the Goods’ intended purpose, accident, abnormal conditions of use, maintenance or repair not carried out by the Supplier maintenance, repair or use which is not in accordance with the Supplier’s or manufacturer’s instructions or procedures issued from time to time or any act or omission of the Customer or any third party (excluding the Supplier’s agents or sub-contractors involved in the supply of the Goods) or any fault in any other goods or equipment or any failure by the Customer or any end-user to carry out routine maintenance as recommended by the Supplier or its suppliers or if no such recommendation is made, in accordance with established codes of practice or standards usual in the industry of manufacture.
(b) the Supplier will not be liable for any defect in the Goods arising from any document, information or materials supplied by or for the Customer.
(c) the Customer or any end-user must procure that suitably trained and competent personnel operate the Goods and diagnose and deal with day-to-day operational problems and maintenance.
(d) warranty work will be carried out during the Supplier’s normal business hours so far as is practicable at the Supplier’s premises and/or elsewhere at its option. The Customer will procure that the Supplier’s personnel will have such access to the Goods as they may require to investigate alleged defects or damage and carry out any warranty work.
(e) Goods must be returned carriage paid to the Supplier’s trading premises as required by the Supplier. The Supplier will reimburse the Customer the reasonable carriage costs incurred by it in returning by road from the Customer’s premises in Great Britain or by other agreed mode of transport Goods repaired or replaced under the warranty or whose purchase price is refunded. Replaced Goods will belong to the Supplier.
(f) the Customer must give the Supplier in writing full particulars of any claim under paragraph 6 within the period stated there or under paragraph 8(1) within 7 days after it becomes aware of the same and in any event within 7 days of the end of the warranty period (time being of the essence).
(g) no sum shall be due and unpaid under the Contract when the Supplier is to fulfil its obligations under the warranty.
(h) if the Customer makes any claim falling outside the terms of the warranty the Supplier may charge for examining the Goods and any work done or goods supplied by it in respect of that claim at its then prevailing rates and any cost or expense incurred by the Supplier.
(i) paragraphs 8 and 9 will apply to Goods or components replaced or repaired under the warranty except that the warranty will apply to Goods or components replaced or repaired under the warranty for the balance of the original warranty period.
LIABILITY
9 (1) The warranty will be in substitution for all other terms, warranties, and conditions, express or implied, statutory or otherwise in relation to the Goods (except for the Supplier’s title to them) which are hereby excluded to the fullest extent permitted by law.
(2) The Supplier will not be liable in contract or tort (including negligence) or in any other way for:-
(a) any consequential or indirect loss, liability or damage or any other claim for consequential compensation; or
(b) loss of any kind of profit, business, production or goodwill or anticipated savings or other benefits or any costs, expenses or liability to any third party incurred by the Customer arising directly in the natural and ordinary course or indirectly from or in connection with the Contract or the Goods.
(3) Subject to paragraph 9(5), the Supplier’s liability for all compensation for Property Damage resulting from any act or omission or negligence on the part of the Supplier arising in connection with the Contract or the Goods shall be limited in aggregate to damages of an amount equal to:-
(a) in the case of all and any Property Damage caused by the Goods in any one period of the Supplier’s insurance for Product Liability, £5,000,000, less the Supplier’s total liabilities in relation to all other claims for Product Liability made in respect of that period and which are covered by such insurance.
(b) in all and any other cases for Property Damage, £5,000,000 in relation to any one occurrence or any one or more occurrences of a series arising out of or attributable to one original cause occurring in any one period of the Supplier’s insurance for such Property Damage, less the Supplier’s total liabilities in relation to all other claims arising from or attributable to any such occurrence(s) made in respect of that period and which are covered by insurance.
(4) Excluding its liability under paragraphs 9(3) or 8, the Supplier’s aggregate liability arising in contract or tort (including negligence) or otherwise howsoever for any loss, cost, damage, injury or liability (whether consequential, indirect or otherwise) resulting from or in connection with the Contract or the Goods will be limited to damages equal to the net invoice value of the Goods.
(5) The limits on the Supplier’s liability in paragraph 9(3) shall be exclusive of its legal liability to the Customer for legal costs and expenses relating to the liability concerned, to the extent that they are covered by the
Supplier’s insurance.
(6) The limitations on and exclusions from liability contained in these
Conditions will be subject to section 2(1) Unfair Contract Terms Act 1977 and will not apply to any liability for fraud.
(7) The Customer undertakes to indemnify the Supplier from and against all claims and proceedings brought against the Supplier by any third party arising from any act or omission on the part of the Customer (or any other person for whom it is vicariously liable) in relation to the Goods or their supply or alleging that the Supplier’s use of any document or information supplied by or for the Customer in relation to the Contract infringes any third party’s rights together with all expenses, costs (including legal costs on a full indemnity basis), damage, losses and liabilities incurred by the Supplier in connection with any such claims or proceedings.
(8) The Customer accepts the limitations on and exclusions from liability in these Conditions as reasonable and that without them the price of the Goods would have been materially increased.
TERMINATION
10 (1) If the Customer makes any arrangement or composition with its creditors generally or (being an individual) has an interim order (within the meaning of the Insolvency Act 1986) made against him or becomes bankrupt or (being a firm or body corporate or unincorporate) enters into compulsory liquidation or voluntary liquidation or the equivalent or is dissolved or has a receiver and/or manager, administrative receiver, supervisor or administrator appointed over or in relation to the Customer or any part of its assets or undertaking or is unable to pay its debts within the meaning of sections 123 or 268 Insolvency Act 1986 or anything analogous to any of the foregoing occurs in any jurisdiction in relation to the Customer or the Customer commits any breach of any of the provisions of the Contract (express or implied) the Supplier may terminate the Contract or the balance of the Contract or suspend deliveries or the supply of any services forthwith by written notice to the Customer without any liability whatsoever.
(2) The Customer will indemnify the Supplier against all claims, proceedings, loss, damage, liabilities, costs and expenses incurred by the Supplier arising in connection with any breach by the Customer of, or any act or omission of the Customer in relation to, the Contract.
MISCELLANEOUS
11 (1) The Supplier will not be deemed to be in breach of the Contract or otherwise be liable to the Customer for any delay or failure in performing any of its obligations under the Contract by reason of any cause or event beyond the Supplier’s reasonable control (including, without limitation, breakdown of plant or machinery, strike or industrial dispute, shortage of materials or failure of or delay in receiving supplies).
(2) The Contract will be governed by the laws of England and all claims and proceedings arising relating to it will be subject to the non-exclusive jurisdiction of the Courts of England.
(3) Any variation of the Contract or waiver of any breach by the Customer must be agreed to in writing by the Supplier’s authorised representative. Any time or indulgence given by the Supplier will not in any way prejudice any of its rights in respect of the Contract.
(4) If any provision of the Contract or part of it is held to be invalid or unenforceable by any court or other body of competent jurisdiction that will not affect the other provisions or the remainder of the relevant provision.
(5) The Customer may not assign or otherwise deal with all or any of its rights or obligations in relation to the Contract without the Supplier’s prior written consent but the Supplier will be free to do so.
(6) The Supplier’s rights under these Conditions are cumulative and in addition to its other rights.
(7) Any notice or claim under the Contract must be in writing and will be effectively served if it is personally delivered or sent by pre-paid first class post or facsimile transmission to the addressee at its address overleaf or any other address for service notified to the other party in accordance with this paragraph.
