TERMS AND CONDITIONS OF BUSINESS
1.1 In this Contract: “Company” means Pendragon Plc and any of its subsidiary and group companies; “Conditions” means the terms and conditions set out in this Contract; “Contract” means a contract between the Customer and the Company incorporating these terms and conditions; “Customers” means the person, firm, limited company, partnership or other corporate entity that purchases the Goods from the Company. “Delivery” shall be deemed to have been made when the Company supplies to the Customer the Goods and the delivery note; “Due Date” means the date for payment for the Goods and/or the Work stated in a sub-clause 3.6 of these Conditions; “Goods” means the goods, equipment, parts and Vehicle parts sold by the Company to the Customer. “Order Confirmation” means the process whereby the Company agrees to accept an order placed by the Customer by either telephone or writing or website confirmation or some other method agreed by the parties in writing prior to the formation of the Contract.
1.2 Any reference in this Contract to any provision of a statute shall include any subsequent amended provision, re-enactment or extended provision relevant at any time;
1.3 Nothing in this Contract is intended to affect (nor will it affect), the statutory rights of consumers under the Sale of Goods Act 1979, the Sale and Supply of Goods Act 1994 or the Unfair Contract Terms Act 1977.
2 CONTENT OF CONTRACT
2.1 No variation of the Contract shall have effect unless agreed in writing by the Company.
2.2 Unless agreed in writing by the Company and the Customer every sale of Goods by the Company to the Customer shall be governed by the Conditions and these Conditions shall prevail over any terms and conditions of the Customer.
2.3 No employee of the Company has authority to make any warranty statement or promise concerning the Goods except in writing signed by a duly authorised officer.
2.4 The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or which do not materially reduce the quality or performance of the Goods or which reflect changes in the specification of the manufacturer of the Goods.
2.5 The Company reserves the right to decline to fulfil any order made by a Customer for Goods.
2.6 The Company reserves the right at the Company’s discretion to require payment in advance for orders placed by the Customer.
2.7 The Company shall be entitled to carry out its obligations under the Contract in full or in part by using sub-contractors.
2.8 The Company may cancel this Contract at any time before the Goods are delivered by giving written notice. On giving such notice the Company shall repay to the Customer any sum paid in respect of the price within 21 days. The Company shall not be liable for any loss or damage arising from such cancellation.
3 PRICES AND CONDITIONS OF SALE
3.1 The price of the Goods shall be the current price as set out in the Company’s price list at the date the order is received by the Company.
3.2 Unless otherwise agreed in writing all prices are net and exclusive of value added tax.
3.3 All payments shall be made in sterling and/or Euros as notified by the Customer to the Company.
3.4 The Company reserves the right to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company and/or any change in delivery or collection dates, quantities or specifications for the Goods which is requested by the Customer or failure of the Customer to give the Company adequate information or instructions.
3.5 Subject to any different terms agreed between the Company and the Customer the Company shall be entitled to invoice the Customer and the Customer shall pay for the price of the Goods on collection of the Goods. The time for payment shall be of the essence and the Company shall notify the Customer of the date that the Goods are available.
3.6 The Customer shall pay the price of the Goods without any deduction whether by set off counterclaim or otherwise. The Company shall have a right to set off.
3.7 If the Goods are purchased at a distance within the meaning of the Consumer Protection (Distance Selling) Regulations 2000, the Customer may within 14 working days of delivery cancel the contract and require the seller to refund the purchase price. In this instance, the customer must keep the goods in a reasonable condition and return the goods or make them available for collection and pay the company’s reasonable costs of collection and the difference, if any, between the value of the goods when returned and the purchase price.
4 DELIVERY AND COLLECTION
4.1 Delivery of the Goods shall be deemed to have been made when the Company supplies to the Customer the Goods and the delivery note;
4.2 Delivery shall be made at a time and date agreed between the Company and the Customer and specified in the Order Confirmation. Any dates quoted for Delivery and collection of the Goods are approximate only and the Company shall not be liable for any delay in Delivery of the Goods. Times for Delivery and collection shall not be of the essence unless previously agreed by the Company in writing. The Goods may be delivered by the Company in advance of the quoted delivery date.
4.3 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.
4.4 If the Company fails to deliver the Goods for any reason other than any cause beyond the Company’s reasonable control or the Customer’s fault, and the Company is accordingly liable to the Customer, the Company’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
4.5 If the Customer fails to take Delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for Delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
4.5.1 Store the Goods until actual Delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
4.5.2 If the Goods are not collected and paid for within 3 months of the Customer being notified that the Goods were ready for collection, sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract; or
4.5.3 Terminate the Contract; and
4.5.4 Charge the Customer interest (both before and after any judgement) on the amount unpaid at the rate of 3% per calendar month until payment in full is made (a part of the month being treated as a full month for the purpose of calculating interest)
5 RISK AND RETENTION OF TITLE
5.1 Risk of damage to or loss of the Goods shall pass to the Customer upon Delivery of the Goods to the Customer or collection of the Goods by the Customer.
5.2 Title in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other amounts due to the Company by the Customer.
5.3 Prior to the passing of title in the Goods to the Customer from the Company the Customer shall keep the Goods identified as the property of the Company so far as is possible.
5.4 Prior to the passing of title in the Goods to the Customer from the Company the Customer shall keep the Goods safe and insured against loss theft and damage up to the full replacement value of the Goods.
5.5 Prior to the passing of title in the Goods from the Company to the Customer the Company shall be entitled at any time to require the Customer to deliver up the Goods so far as the Customer is able to the Company and if the Customer fails to do so forthwith to enter upon or into any premises or vehicles of the Customer or any third party where the Goods are located in order to recover the Goods.
5.6 Notwithstanding that title to the Goods shall not have passed to the Customer an action for the price of the Goods can be maintained by the Company at any time after the Due Date.
5.7 The Customer shall ensure that the interest of the Company in the Goods in noted on the insurance policy taken out by the Customer pursuant to the obligation stated in sub-clause 7.4 above and provide proof of the same to the Company upon its request.
6 FORCE MAJEURE
The Company shall not be liable to the Customer if unable to carry out any provision of the Contract for any reason beyond its control (including without limitation) Act of God, Iegislation, war, act of terrorism, civil commotion, draught, failure of power supply, lock-out, strike, stoppage or other action by employees or third parties in contemplation or furtherance of any dispute.
7.1 The Company warrants that the Goods will correspond with their specification at the time of Delivery.
7.2 The above warranty is given by the Company subject to the following conditions:
7.2.1 The Customer shall be responsible for ensuring that the Goods are fit for the purpose for which they were requested and the Company gives no warranty (and none shall be implied) that the Goods are fit for any particular purpose;
7.2.2 The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;
7.2.3 The Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the Due Date for payment
7.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. The Company shall not be liable to the Customer by reason of any representation, implied warranty or any other term or duty at common law or for any costs or expenses consequently arising, except as provided in these terms and conditions of sale.
7.4 Any claim by the Customer which is based on any defect in the quality of condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Company within three days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect of failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
7.5 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 Company in accordance with these Conditions, the
Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Customer the price of the Goods (or a proportionate part of the price).
8 PRODUCT RECALL
The Company reserves the right to recall any Goods from the Customer. On the giving of written notice of product recall the Company shall collect the Goods from the Customer and refund to the Customer the price in full or replace the Goods at the Company’s discretion. In the event of a product recall the Customer must use its best endeavours to recover all Goods sold to the Customer’s buyers.
9 LOSS, DAMAGE AND LIABILITY
9.1 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 at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss or 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 supply of the Goods or their use or resale by the Customer, except as expressly provided in these
9.2 The Company shall have no liability to the Customer in respect of damaged or defective Goods where damage has been sustained in transit after Delivery of the Goods to the Customer or its agents.
9.3 Except where otherwise contained in these conditions the Company has no obligation duty or liability in contract, tort (including negligence or breach of statutory duty) or otherwise.
9.4 Subject to sub-clause 10.1 the Company’s liability for any breach of the terms of this Contract or otherwise will be limited to the value of the Goods purchased by the Customer from the Company in the 12 months prior to the breach of this Contract.
9.5 The Company shall accept no liability for the use of the Goods by the Customer other than in accordance with the Company’s and/or the manufacturer’s instructions.
10 INSOLVENCY OF CUSTOMER
10.1 This Clause applies if the Customer 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 a receiver is appointed, of any of the property or assets of the Customer; or the Customer ceases, or threatens to cease, to carry on businesses; the Company reasonably apprehend that any of the events mentioned above is about to Occur in relation to the Customer and notifies the Customer accordingly.
10.2 If this Clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangements to the contrary.
Any notice required to be given or served shall be in writing and sent by first class post or facsimile. Notices shall be served on the Customer at the address stated on the most recent Order Confirmation from the Company or if none has been requested, to the address that the Customer gives to the Company. Notices shall be served on the Company at its registered office at Loxley House; 2 Oakwood Court, Little Oak Drive, Annesley, Notingham NG15 ODR or such other address in England as the recipient may designate by notice given in accordance with the provisions of this Clause.
12.1 No waiver by the Company of any breach by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision and if any of these conditions is held invalid or unenforceable in whole or in part the validity of the remaining conditions and the remainder of the provision in question shall not be affected.
12.2 The Customer may not assign any of its rights and obligations under this Contract without the Company’s consent in writing and for the avoidance of doubt nothing in these Conditions shall confer on any third party any benefit or the right to enforce any term of this Agreement.
12.3 A person who is not a party to this Contract has no right under the Contracts (Right of Third Parties) Act 1999 to enforce any term of this Contract but this does not affect any remedy or right of a third party which exists or is available apart from that Act.
12.4 This Contract shall be governed by the laws of England and Wales and the Customer agrees to submit to the jurisdiction of the English courts.
12.5 If we are unable to resolve your complaint, you may refer it to the National Conciliation Service for Alternative Dispute Resolution via https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.show&lng=EN
Pendragon PLC © 2005