DEFINITIONS AND INTERPRETATION
- “The Company” means Guest Motors Limited or Sherwood Truck and Van Ltd and shall include any subsidiary company (as defined in Section 736 of the Companies Act 1985) and any trading division of Guest Motors Limited or Sherwood Truck and Van Ltd.
- “The Customer” shall mean any person, partnership, unincorporated business or incorporated company to whom the Company agrees to sell the Goods and/or supply the Services.
- “Goods” shall mean the goods (including any instalment of the goods or any part of them) which the Company is to supply in accordance with these conditions and shall include inter alia trailers chassis components parts and attachments new or used and whether sold separately or together and where appropriate goods in relation to which Services have been carried out.
- “Services” shall include any services to be provided by the Company pursuant to the contract whether in relation to the supply of Goods or otherwise and where the contract is for or includes work or work and materials, the supply of labour.
- “Contract” means the contract for the sale of Goods and/or supply of services by the Company to the Customer and includes these conditions.
- Any reference to these conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
- The singular shall include the plural and male shall include the female and neuter and vice versa.
- The headings in these conditions are for convenience only and shall not affect their interpretation.
FORMATION OF CONTRACT
- These conditions shall apply to all Contracts to the exclusion of all other terms and condition which the Customer may purport to apply under any purchase order confirmation of order or similar document and shall prevail over any inconsistent terms implied by law or by trade customer practices or course of dealing.
- All orders for Goods and Services shall be deemed to be an offer by the Customer for purchasing the goods and Services pursuant to these condition.
- Any promotional material or specification for used vehicles produced by the Company shall constitute an invitation to treat and not an offer to sell the same.
- Acceptance of delivery of the goods on which services have been performed shall be deemed conclusive evidence of the Customer’s acceptance and conditions.
- No modification of these conditions shall be effective unless the same is in writing and signed by a Director or Authorised Signatory of the Company.
- If a contract has not been concluded between the Company and the Customer within a period of Twenty Eight (28) days from the date of any quotation the Company reserves the right to re-quote for such Goods and Services and the Company may at its discretion refuse to accept any order which constitutes part only of the Goods or Services forming the subject of a quotation.
- The order must be accompanied by sufficient information to enable the Company to proceed with the order forthwith otherwise the Company shall be at liberty to amend the quotation to cover an increase in costs which has taken place after acceptance.
- Any statement with respect to dimension description date of delivery price or other detail given by the Company in any brochure quotation tender estimate or other communication or made verbally and not expressly stated in the Contract shall not be considered or implied as a representation condition or warranty governing amplifying or enlarging the Contract or deemed to be an express or implied term thereof unless the same is agreed in writing between the parties. In placing an order the Customer acknowledges that it does not rely on and waives any claim for breach of any representation other than those made in writing by the Company.
- Any advice or recommendation given by the Company or its employees or agents to the customer or its employees or agents as to the storage, application or use of the Goods which it is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
- If the contract is for and includes and Services the Company shall be obliged to carry out such Services only during normal working hours. If the Customer requests that overtime be worked and the Company agrees thereto such overtime shall be paid for by the Customer in addition to the Contract price at the Company’s published hourly rate.
- Unless otherwise agreed in writing all prices quoted are in pounds Sterling on an ex-works basis and are exclusive of any applicable Value Added Tax (VAT) for which the customer shall be additionally liable at the rate ruling on the date of the VAT invoice and where the Company agree to deliver the Goods and/or package the same customer shall be liable to pay the Company’s charges for transport packing and insurance.
- If after accepting the Customer’s order and before giving notice that the Goods are ready for delivery to or collection by the Customer the Company shall publish notice of an increase in the List Price (as the term is commonly interpreted in the motor industry) of the Goods such an increased price may be notified to the Customer and shall if so notified become payable by the customer provided that the Customer shall be entitled to cancel the Contract by written notice of cancellation served on the Company in accordance with clause 19 hereof.
- Prices quoted are based upon the cost of labour and materials at the date of the quotation and the Company reserves the right to invoice at prices based on extra costs incurred as a result of any increase in the cost of labour or materials between the date of quotation and the date of delivery. It is a term and condition of the Contact that local wage agreements are recognised as a basis for the calculation of any increase in labour costs.
- The rates and prices given in the quotation are not subject to any discount, whether trade or cash, except such as may be expressly specified in the quotation.
- The Customer shall not be entitled to set off/deduct any sum from the Contract price.
In the event of:
- The Company suspending work on any contract upon the instructions of the Customer or because the Customer fails to give such information or instructions to the Company as it may reasonably require in order to perform the Contract, or as a result of any breach on the part of the Customer; or
- The Company at the request of the Customer agreeing to any departure from or variation to the Contract specification upon which the quotation was based; or
- The Company being required to carry out any additional work or provide additional or alternative materials as a result of inadequate detail provided in the order during the course of the progress of any work; or
- The Company being required to carry out additional work or provide additional materials or Services as a result of the impact of new statutory or other provisions upon the Company’s or the Customer’s business or
- Forwarding instructions being withheld when the Goods are ready for delivery or the Services have been performed and the Customer has been notified to this effect by the Company; or
- Collection of the Goods by the Customer not taking place when the Goods are ready for collection or the Services have been performed and the Customer has been notified to this effect by the Company; or
- The Customer delaying in or not providing free access to its premises when the Goods are ready for delivery and the Customer has been notified to this effect the Company; or
- The Company as a result of any delay caused by third parties being required to modify or alter the Goods or the Services performed to a particular customer specification. Then in addition to the Contract price the Customer shall be charged at the current charging rate of the Company for all extra work and for any increase in the cost of insurance storage or demurrage or for any disbursements or out of pocket expenses including travelling time and costs reasonably incurred by the Company as the result of the suspension departure variation or delay or works of adaption wheresoever carried out.
Where it has been agreed that the goods will be delivered to the Customer:
- The Customer will be notified in writing that the goods are ready for delivery and the Customer shall take delivery of the goods within seven (7) days thereafter.
- Delivery shall be to the destination specified by the Customer in the order. The Company shall not be bound to deliver to any other destination but in the event of any agreement to deliver to any alternative destination the Customer will be charged for any increased costs thereby incurred in addition to the Contract price.
- Delivery dates (where given) are quoted in good faith by the Company and are based upon the date of receipt of the order and while reasonable efforts shall be made by the Company to meet the estimated delivery date for the Goods or for the performance of services, the Company shall be entitled to revise the estimated delivery date and the time and date of delivery are not of the essence of the Contract.
- The act of transfer of physical control of the Goods to the Customer or the Customer’s authorised agent or to the Customer’s premises or other premises agreed by the Customer shall be deemed for all purposes to be delivery to the Customer.
- The risk in the Goods shall pass to the Customer on delivery and accordingly the Customer shall be responsible for insuring the same as from that date.
- The Customer agrees that the Customer or the Customer’s authorised accepting agent will evidence in writing its acceptance of all Goods at the time of delivery by the signing of the Goods delivery document or other document in such manner as required for the purpose by the Company from time to time.
- Where the Goods are to be delivered in instalments each delivery shall constitute a separate Contract and failure by the Company to deliver any one or more of the instalments in accordance with these conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
- Goods shall be examined immediately upon arrival and any apparent damage failure to conform to order specification or shortages shall be reported in writing or by facsimile to the Company and to the carriers so that such notification is received not later than 48 hours after delivery. The Customer shall indemnify the Company against any loss suffered because of its inability to claim against the carriers as a result of the breach of this provision by the Customer.
FAILURE TO COLLECT/ACCEPT DELIVERY ETC
If collection of the Goods or of any instalment of the Goods has not taken place or forwarding instructions for delivery have not been given or access to the Customer’s premises has not been afforded with fourteen (14) days of notification that the Goods are ready for collection or delivery (as the case may be) the Company shall be entitled to cancel the Contract by written notice and the Customer shall pay forthwith to the Company the balance of the Contract price for the whole of the Customer’s order together with any costs and expenses that Company shall have incurred pursuant to the Contract.
In the event that the Company shall be delayed in or prevented from carrying out any of its obligations under a Contract as a result of any cause beyond its control including (but not by way of limitation) war invasion hostilities any Act of God Government Act civil war strife riot or civil commotion strikes lock-outs breakdown of plant failure of third party to deliver goods or materials storm flood fire or any other cause it shall be relieved of all obligations and liabilities incurred under such Contract insofar as and for so long as the fulfilment of such obligations and liabilities is thereby prevented frustrated or impeded or to cancel the Contract without incurring any further liability whatsoever.
TERMS OF PAYMENT
- Unless otherwise agreed in writing payment of the Contract price for vehicles shall be made by the Customer to the Company in advance of the date of delivery and for the avoidance of doubt such payment must have cleared in the Company’s bank account prior to delivery provided that if the Company agrees to deliver in advance of payment and a cheque drawn by a customer is subsequently not met upon first presentation the Company shall be entitled to recover immediate possession of the vehicle.
- All accounts for Goods and services (except the sale of vehicles to which condition 8.1 shall apply) are to be paid in full by the Twenty fifth (25th) day following the month of invoice (but without prejudice to the right of the Company to require interim payments to be made by the Customer at the option of the Company.
- It is a condition of the Contract that all monies certified as due are paid in full subject only to any discount or any retention covered by a prior arrangement in writing with the Company.
- If the Customer is in default of any payment terms contained in this condition the Customer shall in addition to the Contract price pay interest upon the balance outstanding both before and after any judgement calculated on a daily basis at 5% above the Lloyds Banking Group plc Base Lending Rate from time to time in force from the date of default until the date that payment in full is received.
- Extra costs shall be paid when invoiced by the Company.
- No delay or default in payment nor any retention shall be made by the Customer in respect of any works of minor adjustment remaining to be carried out after delivery.
- In the event of the Customer failing to comply with the provisions for payment contained in the preceding sub-clauses or in the event of any dispute or delay in payment or retention made by the Customer this shall be regarded as a breach of condition and the Company shall be entitled to treat such failure as a repudiation of the Contract and of all other contracts between the Company and the Customer and with prejudice to all other rights of the Company to claim damages or any other relief the Company may without notice suspend all further deliveries to the Customer in relation to the Contract concerned or any other contract without liability to the Customer for any loss or damage howsoever arising.
- The Company may refuse credit facilities or where credit facilities have been authorised alter suspend or withdraw them without stating a reason at any time.
- If terms for payment or credit limits are exceeded the Company may suspend or withdraw credit facilities until the balance on the Customer’s account is within the limits agreed with the Company from time to time.
- Credit facilities may be withdrawn permanently in cases of persistent failure to comply with the Company’s terms of payment whereupon all monies outstanding from the Customer shall immediately become due and payable.
- Subject to the limitations set out below the Company warrants:
- That the Goods or Services will correspond with their specification at the time of delivery or supply and
- That the Services will be carried out with reasonable care and skill and
- That the Goods will be of satisfactory quality and fit for the purposes for which they are commonly supplied. The Company does not give warranty as to fitness for any other purpose.
- In the supply of new and used Goods the above warranty 9.1 is given subject to the condition that the Company shall be under no liability in respect of any defect arising from fair wear and tear wilful damage negligence abnormal working conditions use for purposes for which the Goods are not designed or mis-use or alteration or repair of the Goods without the Company’s written approval or in consequence of defective repair work having been carried out by a third party or where genuine manufacturer’s parts have not been fitted.
- In the supply of used Goods:
- The warranty at clause 9.1 is given subject to the condition that the Company shall be under no liability in respect of:
- any matter specifically drawn to the Customer’s attention or:
- any matter which examination of the Goods reveals or ought to reveal where the opportunity to examine the Goods has been offered to the Customers before the Contract is made.
- Subject to the conditions above the Customer shall not have the right to reject Goods where they are sold subject to minor defect(s) or (where the defect is not a minor defect in proportion to the Contract) the Company indicates its willingness to remedy any defect not covered by clause 9.3.1
- The warranty at clause 9.1 is given subject to the condition that the Company shall be under no liability in respect of:
- In the supply of all Goods and Services:
- The Company shall be under no liability if the total price for the Goods or Services has not been paid by the due date for payment.
- Where Goods are supplied by but not manufactured by the Company the above warranties do not apply but the Customer shall be entitled to the benefit of any warranty or guarantee as may be given by the manufacturer or supplied to the Company and the Company covenants to pass on the benefit of any such warranty so far as it is able to do so.
- Any claim by the Customer which is based on any defect in the condition of the Goods or in Quality of the Goods or Services or their failure to correspond with specifications shall (whether or not delivery is refused by the Customer) be notified to the Company in writing specifying the defect or failure alleged within seven (7) working days from the date of delivery or supply or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect of failure otherwise the Customer shall not be entitled to reject the Goods or Services and the Company shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the Goods or Services had been delivered or supplied in accordance with the Contract.
- Where any valid claim in respect of any of the Goods or Services which is based on any defect in the quality or condition of the Goods or Services or their failure to meet specification is notified to the Company in accordance with these conditions the Company shall be entitled to replace the goods (or the part in question) or perform any work rectification free of charge or at the Company’s sole discretion refund to the Customer the price of the Goods or Services (or a proportionate part of the price) but the Company shall have no further liability to the Customer PROVIDED ALWAYS that where reasonably practicable the said rectification or replacement will only be carried out by persons employed by the Company and that no work on the Goods shall have been carried out by any other person.
- Except in respect of death or personal injury caused by the Company’s negligence the Company shall not be liable to the Customer by reason of any representation or any implied warranty condition or other term or any duty of common law or under the Contract for any consequence or loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company its employees or agents or otherwise) which arise out of or in connection with the provision of the Goods or Services or in the use of resale of the Goods by the Customer except as expressly provided in these conditions.
- Subject as expressly provided in these conditions and except where the Customer is dealing as a consumer (as defined by the Unfair Contract Terms Act 1977) all warranties conditions or other terms applied by statute or common law are excluded to the fullest extent permitted by law.
- Where the Customer is dealing as a Consumer (as defined by the Unfair Contract Terms Act 1977) the statutory rights of the Customer are not affected by these conditions.
- Subject to the limitations set out below the Company warrants:
LIMITATION OF LIABILITY
- The limit of the Company’s liability hereunder for any breach of the terms of these conditions whether as damages or otherwise shall be the Contract price of the Goods and Services or where the Goods are supplied in instalments for the Contract price in relation to the instalment in question.
- The Company shall not be responsible for the design or specification of the Goods ordered by the Customer or for any breach of any third party’s intellectual property rights arising therefrom unless expressly agreed by the Company.
- The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason or any delay in performing or any failure to perform any of the Company’s obligations in relation to the Goods or Services if the delay or failure was due to any cause specified in clause 7 hereof.
- Under no circumstances shall the Company be liable for loss or damage to any premises stocks or other property or for any legal liability of the Customer to any third party or for any loss of expected profits damage to the Customer’s reputation or goodwill loss of expected business damage costs or expenses payable by the Customer to any third party or for any other consequential loss or damage or for economic loss howsoever arising.
EXHIBITIONS AND COMPETITIONS
- The vehicles are sold on the condition that they shall not be:
- Exhibited in the name of the Company or the vehicles manufacturer at any exhibition held in Great Britain Northern Ireland the Channel Islands and the Isle of Man other than exhibitions held by the Society of Motor Manufacturers and Traders Limited (“the Society”) or held by its Bond Signers and approved by the Society; or
- Used in the name of the Company or the vehicles manufacturer in Europe in any competition, competitive trial or collective demonstration unless approved by the Company and the vehicles’ manufacture.
- On each and every breach of these conditions whether by the Customer or by a subsequent owner the Customer shall pay to the Company the sum of £2,000.00 (or such other sum if any as the Company may be ordered to pay by the Society) as liquidated damages.
- 11.3 If the Customer shall purchase the vehicle from the Company for the purpose of resale he shall obtain from the person or persons to whom he shall resell the vehicle an undertaking in the terms (mutatis mutandis) contained in sub-clauses 11.1 and 11.2 of this condition.
- The vehicles are sold on the condition that they shall not be:
RETENTION OF TITLE
- Legal and beneficial title to the Goods supplied to the Customer shall not pass to the Customer until the full invoice price thereof and all sums due to the Company and other applicable charges shall have been received by the Company.
- Until title to the Goods has passed to the Customer as bailee for the Company shall keep them separate and distinct from any other goods in the Customer’s possession and identifiable as being the property of the Company.
- The Customer shall permit the Company at any time during normal working hours upon request forthwith to enter any premises of the Customer to ensure that the Customer is complying with Clause
- and will forthwith at its own expense implement any reasonable instructions of the Company necessary to secure compliance.
- Until such time as the title and ownership of the Goods passes to the Customer:
- The Customer may in the ordinary course of business use or sell the Goods as principal and not as agent for the Company before title has passed but shall hold the benefit of any such contract for sale on trust for the Company to the extent of the sums owing to the Company (including any extra and incidental costs and expenses) and shall accordingly account to the Company for such amount out of the proceeds of sale on receipt.
- The Customer will keep the Goods free from and will indemnify the Company against any Charge lien or other encumbrances thereon.
- The power of the Customer to use or sell the Goods shall cease:
- Forthwith upon notice (whether written or oral) by the Company given at any time after the Customer shall have been in default for more than seven (7) days in payment of any sum whatsoever due by the Customer to the Company.
- If the Customer is a Company, automatically upon the happening of any of the following events:
- The appointment of a Receiver or Manager (including an Administrative Receiver)
- The convening of a meeting for the purpose of the voluntary winding-up (other than for reconstruction or amalgamation)
- The presentation of a petition to wind-up the Customer or for an Administration order under the Insolvency Act 1986
- The summoning of a meeting under Section 3 of the Insolvency Act 1986 or otherwise for the purpose of proposing any arrangement or composition with creditors.
- If the Customer is an individual or a firm, automatically upon the happening of the following events:
- If a bankruptcy petition is presented under the Insolvency Act 1986
- If the Customer applies for an Order under Section 253 of the Insolvency Act 1986 or calls a meeting for the purpose of making any arrangements or composition with creditors.
- After the power to use or sell has ceased the Customer will deliver up the Goods to the Company and hereby authorises the Company to enter any premises occupied by the Customer for the purpose of finding and/or taking delivery of the same.
The Customer shall not without the prior written consent of the Company sell or permit a sale of any vehicle for export to countries other than member states of the European Community or countries having special tariff arrangements with the European Community.
RETENTION OF MONIES
If the Customer is a sub-contractor and the main contractor makes any retention attributable to the Goods and Services which are the subject of this Contract and the Company agrees to accept like retention from the Contract price then the Customer shall hold its interest in the retention monies under the main contract upon trust for the Company until such time as the cost of the Goods and Services has been paid in full and shall upon request of the Company effect an assignment of its rights to such monies to the Company.
Any dispute arising under or in connection with these Conditions or the subject matter of the Contract shall be referred to arbitration by a single arbitrator appointed by agreement or (in default of agreement) to be appointed by the President for the time being of the Society of Motor Manufacturers and Traders limited under the provisions of the Arbitration Act 1996 and the provisions of such Acts shall apply to such arbitration.
SUSPENSION OF DELIVERY
Without prejudice to any other rights that the Company may have for damages for breach of Contract or otherwise against the Customer the Company shall be entitled in the event of the Customer having become insolvent or bankrupt or having made any arrangements with its creditors or suffered a receiver to have been appointed over any of its assets or undertakings or shall have suffered an execution or distress to be levied upon any of its assets or failed to satisfy any judgement debt within seven (7) days of the same becoming payable, to suspend all further deliveries under any Contract.
It is hereby confirmed that the rights of the Company shall not be diminished or waived by any indulgence or forbearance extended to the Customer and no waiver by the Company of any specific breach on the part of the Customer shall operate as a waiver if any breach.
The benefit of the Contract shall not be capable of assignment by the Customer without the consent of the Company.
Any notice or demand given or made hereunder may be served upon the Company by prepaid letter post addressed to its registered office and upon the Customer by prepaid letter post addressed to the Customer at its principal place of business or last known address or by leaving the same upon any premises at which the Customer carried out business. Any notice or demand given or made by post shall be deemed to have been duly served at the time when it is received or would be expected to be received in the ordinary course of post and in proving service it shall be sufficient to prove that the envelope containing the notice or demand was duly addressed and stamped and posted.
CONSTRUCTION AND CHOICE OF LAW
- These conditions shall be construed in accordance with the Laws of England and Wales whose courts shall have sole jurisdiction over all matters arising hereunder.
- Each of the conditions contained herein and each clause and sub-clause hereof shall be construed as independent of every other such condition clause or sub-clause to the effect that if any of the conditions or the application of any of the conditions to any person firm or company or to any circumstances shall be determined to be invalid and unenforceable then such determination shall not affect any other condition clause or sub-clause herein or the application of such to any person firm company or circumstances so that all other provisions shall remain in full force and effect.
- In the event that any condition contained herein shall be held to be invalid or unenforceable by a Court of Law or other competent authority in a way which in the sole opinion of the Company materially adversely affects the right of the Company to receive any payment due to it hereunder or the terms on which the Company supplied Goods or Services to the Customer then and in any such case the Company may without liability terminate this and all other contracts with the Customer by notice in writing to the Customer and in that event the Customer shall indemnify the Company in full against all losses (including loss of profits) costs (including the cost of all labour and materials used) damages charges and expenses incurred by the Company as the result of such termination.
- In the event that any condition herein shall be found to be void, but would be valid if some part were deleted, such conditions shall apply with such modifications as may be necessary to make it valid and effective.
No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and (unless cancelled under the provisions of clause 3.2) upon terms that the Customer shall indemnify the Company in full against all losses (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses incurred by the Company as the result of the cancellation.
If the Customer shall become bankrupt or insolvent or compound with creditors, or in the event of a resolution being passed or proceedings being commenced for the liquidation of the Customer, or if an administrative receiver or manager is appointed of all or any part of its assets, or undertakings, the Company shall be entitled to cancel the contract in whole or in part and also that the Company shall reserve the right to offset any monies owed to the Customer against any outstanding debt existing from the Customer to the Company.
An estimate for service/repair work is considered approximation of the likely costs involved. All estimates are valid for 14 days from the despatch of the estimate by the Company to the Customer. If the Customer deposits a vehicle with the Company for the purpose of an estimate, a storage charge based on the Company’s current rates will be made to the Customer from the fifteenth day after the despatch of the estimate unless the estimate has been accepted by the Customer prior to the fifteenth day.
The Company in no circumstances permits in relation to its business any act which might constitute an offence created by the Prevention of Corruption Acts 1889 – 1916 or by Sections 94 and 117 of the Local Government Act 1972 and the Company states that any such practice is ultra vires any employee of the Company. In the event of the Customer learning of circumstances which are or could be in contravention of the above Acts of the Customer will report forthwith any such practice to the Managing Director of the Company
RETURNS OF GOODS
- All damaged parts must be returned with 48 hours
- Goods ordered specifically for the Purchaser will not be accepted for credit unless damaged and returned within 48 hours.
- A 15% handling charge will be deducted for all items returned within 7 days that have been correctly supplied.