1.1 In these Conditions the following words have the following meanings: "Company" means Truck & Trailer Equipment Ltd, of UNIT 6, PORTWAY INDUSTRIAL ESTATE, ALSTON ROAD, OLDBURY, WEST MIDLANDS, B69 2PP, 0121 5523541, Fax 0121 5444134 "Contract' means any contract between the Company and the Customer for the sale of Goods and/or provision of Services, incorporating these Conditions; "Customer" means the person(s), firm or company who purchases the Goods and/or provision of Services from the Company; "Goods.' means any goods agreed in the Contract to be supplied to the Customer by the Company; "Services" means any services agreed in the Contract to be supplied to the Customer by the Company.
2 Basis of Contract
2.1 Subject to any variation under clause 2.2, the Contract will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any other document).
2.2 The Contract shall not be effective unless and until it is executed by the Company. No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company commences manufacture of the Goods, their appropriation to the Customer's order or despatch of the Goods to the Customer. Any order shall be accepted entirely at the discretion of the Company. Any representations about the Goods or any variation to these Conditions shall have no effect unless expressly agreed in writing by the Company.
2.3 Any quotation or estimate made by the Company is given subject to these Conditions. Without prejudice to the Company's right not to accept an order, quotations will be valid for 30 days from the date of issue. The Customer can only cancel an order (or any part of an order) which the Company has already accepted, with the Company's prior written agreement and provided that the Customer indemnifies the Company in full in terms established by the Company.
3 Delivery and Acceptance of Goods
3.1 Where the parties have agreed for the Company to supply Goods to the Customer, delivery of the Goods shall take place at the Company's premises in normal business hours (unless other agreed in writing by the parties) and the Customer shall take delivery of the Goods within 7 days of the Company giving the Customer notice that the Goods are ready for delivery. Any dates specified by the Company for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates are so specified, delivery will be within a reasonable time.
3.2 If for any reason the Customer does not take delivery of any of the Goods when they are ready for delivery or the Company is unable to deliver the Goods on time due to the Customer's default, then the Goods will be deemed to have been delivered, risk passing to the Customer (including for loss or damage caused by the Company's negligence) and the Company may (a) store the Goods until actual delivery whereupon the Customer will be liable for all related costs and expenses (including storage, re-delivery and insurance); or (b) sell the Goods at the best price readily obtainable and after deduction of all reasonable storage and selling expenses, charge the Customer for any shortfall below the Contract price.
3.3 The Customer shall examine the Goods upon delivery and shall be deemed to have accepted the Goods as being in accordance with the Contract unless the Customer notifies the Company in writing of any defect or other failure of the Goods to conform with the Contract within 7 working day of the date of delivery of the Goods where the defect or failure would be apparent upon reasonable inspection and testing of the Goods or within a reasonable time where the defect or failure would not be so apparent. If the Customer fails to do so, the Company shall have no liability for such defect or failure and the Customer shall pay the Contract price of the Goods.
3.4 Where the Company is to perform Services at the Customer's premises, the Customer shall procure safe access to the premises and the provision of adequate power, lighting, heating and other such facilities or supplies for the Company's employees or agents in accordance with the demands of any applicable legislation and as the Company shall reasonably require.
3.5 The Services will be deemed to be completed and the relevant element of the Contract price to be due (a) when the Company issues a written notice to the Customer confirming such completion; or (b) if the Company is available to perform the Services but is prevented from doing so by reason of the lack of relevant assistance from the Customer (such as lack of availability of test components or parts from the Customer); and/or the condition of the Customer premises on the site at which the Services are to be provided and/or the facilities at or the services available therein at the time agreed for the provision of the Services.
4 Passing of Risk and Legal Title
4.1 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in the Company (even though risk has passed to the Customer) until payment in full, in cash or cleared funds, for all the Goods has been received by the Company and any part exchange vehicle with its registration document has been delivered to the Company free from all encumbrances. The Goods shall be at the sole risk of the Customer from the time of the delivery of the Goods to the Customer or such place as the Customer may direct (including delivery of the Goods to the premises of the Customer's bodywork suppliers for such suppliers to fit bodywork onto the Goods).
4.2 Until full legal, beneficial and equitable title to and property in the Goods passes to the Customer, (a) the Customer shall hold the Goods on a fiduciary basis as the Company's bailee; (b) the Customer shall store the Goods at its premises in a proper manner in conditions which adequately protect the Goods separately from any other goods, ensure that they are clearly identifiable as belonging to the Company and insure them, without any charge to the Company; (c) the Company may at any time, on demand and without prior notice, require the Customer to deliver the Goods up to the Company and the Company may repossess and resell the Goods if any event specified in clause 10.1 occurs or if any sum due to the Company from the Customer under the Contract or on any other account or under any other contract is not paid when due; (d) for the purposes of this clause the Company may have free and unrestricted access to any location where any of the Goods are situated at any time without prior notice; and (e) the Company may maintain an action against the Customer for the price of the Goods notwithstanding that title to the Goods has not passed to the Customer.
5 Price and Payment
5.1 A deposit of such amount as shall be agreed between the parties shall be paid by the Customer upon the signature of the Contract. If the Customer cancels the Contract in accordance with its terms, fails to accept delivery, or fails to complete the Contract, then the deposit shall be payable to the Company, without prejudice to any other remedy which the Company may have against the Customer for breach of this Contract.
5.2 Unless otherwise agreed by the Company in writing, (a) the price for the Goods and/or Services shall be the price set out in the Company's price list published on the date of delivery of the Goods, or completion of performance of the Services and (b) the price for the Goods and/or Services shall be exclusive of any VAT and all charges in relation to packaging, labelling, loading, unloading, carriage, freight and insurance all of which amounts the Customer will pay. If prior to delivery, the quoted price of the Goods and/or Services increases, the Customer may within 7 days of receiving notice of such increase, cancel this Contract and recover from the Company any deposit paid. The Company shall be under no further liability.
5.3 Payment of the price for the Goods and/or Services is due by the 20`" of the month following the date of invoice, save for payments for vehicles which shall be made prior to the delivery of such vehicles. Time for payment shall be of the essence. The Customer shall make all payments due under the Contract without any deduction. The Company shall be entitled at any time to withdraw from the Customer any credit facility made available to the Customer. If this occurs or if any sum is not paid to the Company when due then, without prejudice to any other rights or remedies of the Contractor, the Contractor may suspend its obligations under this Contract until it receives such security for payment of the Charges from the Customer as it may require.
5.4 If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and the Company may (a) cancel or suspend its performance of the Contract or any order; (b) require the Customer to pay for Goods prior to their despatch or collection from the Company's place of business; and (c) charge the Customer interest calculated on a daily basis on all overdue amounts (both before and after judgment) until actual payment at the rate of eight per cent (8%) per annum above the base lending rate of Barclays Bank plc prevailing from time to time until payment is made in full and the cost of obtaining judgment or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
6.1 Photographs, descriptions and other literature relating to the Goods and/or Services are for guidance only. The Seller reserves the right to supply the Goods and/or Services subject to minor variations in published specifications without prior notice.
6.2 If the manufacturer discontinues the sale of the Goods or alters the Goods' specification, the Company may (a) to deliver in fulfilment of this Contract, goods conforming to the manufacturer's specification prevailing at the time of delivery; or (b) to cancel this Contract and return any deposit paid by the Customer without further liability.
7.1 Subject to clause 8, the Company warrants that it shall take reasonable care to ensure that the Goods are of the description stated in the Contract, of reasonable quality and reasonably fit for the purpose stated in the quotation. Where no purpose is stated in the quotation, the Company does not make any warranty as to the fitness of the Goods for any purpose.
7.2 The Customer shall observe the instructions provided by the Company for the proper assembly, maintenance, handling and use of the Goods. If the Goods are new, the benefit of the manufacturer's warranty is passed unconditionally to the Customer, the terms of which form part of this Contract.
8 Exclusion and Limitation of Liability
8.1 Nothing in the Contract excludes or limits the Company's liability for death or personal injury caused by the Company's negligence or for fraudulent misrepresentation.
8.2 The Company and the manufacturer shall not be liable for (a) any economic loss or loss of profit (direct or indirect), or any indirect or consequential loss howsoever caused (b) any liability arising to any third party. (c) any modifications to the Goods carried out in accordance with the Customer's request: (d) any loss howsoever caused from the non-delivery or delayed delivery of the Goods but if the Company is unable to deliver the Goods for any reason whatsoever, either party may terminate this Contract with 7 days written notice, whereupon the Company shall return to the Customer any deposit paid: or (e) any defective or non-performance of any third parties from whom the Customer has directly procured parts and/or services to be used in connection with the Goods (including bodywork to be fitted onto the Goods). Accordingly, all such costs, claims (including warranty claims), losses or damages suffered by the Customer shall be borne by the Customer and save as provided in clause 7 the Customer shall indemnify the Company and the manufacturer of the Goods against such costs, claims, losses or damages.
8.3 The Company's total liability to the Customer in connection with this Contract (for negligence, breach of contract or otherwise) shall not exceed the replacement value of the goods or services to be provided under this Contract.
9 Part Exchange/Finance/Export
9.1 Where the Company has agreed to allow part of the price of the Goods to be satisfied by the Customer selling a used motor vehicle to the Company, such agreement shall be subject to the following conditions: (a) that the used vehicle is the absolute property of the Customer and is free from all encumbrances and that all material representations (written, oral or implied) made by the Customer relating to such used vehicle (including its odometer reading) are correct in every respect; (b) that if such used vehicle is the subject of a hire purchase agreement or other encumbrance, such encumbrance is capable of cash settlement by the Company in which case the allowance shall be reduced by the amount required to be paid by the Company in settlement thereof (c) that if the Company has examined the used vehicle prior to its confirmation of the order, the used vehicle shall be delivered to the Company in the same condition as at the date of such examination (fair wear and tear excepted), (d) that such used vehicle shall be delivered to the Company on a date agreed by the parties but in any event, on or before delivery of the Goods, and the property in the said used vehicle shall thereupon pass to the Company absolutely, (e) that if the Goods through no default of the Company, is not delivered to the Customer within 30 days after the date of the order or the estimated delivery date, where that is later, the allowance on the said used vehicle shall be reduced by an amount not exceeding 2.5% for each completed period of 30 days from the date of expiry of the first mentioned 30 days, to the date of delivery to the Customer of the Goods. If any of the foregoing conditions other than (e) is not fulfilled, the Company shall be discharged from any obligation to accept the used vehicle or to make any allowance, and the Customer shall pay the full contract price in cash.
9.2 If the Customer chooses to acquire the Goods by any method of funding their purchase involving the sale of the Goods to a finance provider, then the sale of the Goods to the finance provider shall be in complete satisfaction of the Company's obligations to the Customer. Notwithstanding such sale, the Customer shall remain bound by the Contract and the Company shall not be obliged to deliver the Goods to the Customer nor accept any vehicle taken in part exchange until the expiry of any statutory period of notice under the Hire Purchase Act, the Consumer Credit Act 1974 or other applicable legislation.
9.3 Where the Goods are supplied for export from the United Kingdom, the Customer shall be responsible for complying with any legislation or regulations governing the use or sale of the Goods in the country of destination, the payment of any duties or taxes on them, the transportation and storage of Goods (including any obligation to translate any instructions, labelling or packaging into any other language). The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company's premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit. The Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
10 Breach of Contract/Insolvency/Force Majeure
10.1 The Company may immediately suspend performance of the Contract, cancel any outstanding provision of the Services or delivery of the Goods, stop any Goods in transit or by notice in writing to the Customer or terminate the Contract without liability to the Company if (a) the Customer commits a material breach of any of its obligations under the Contract which is incapable of remedy or fails to remedy a breach of its obligations under the Contract which is capable of remedy, or persists in any breach of any of its obligations under the Contract after having been requested in writing by the Company to remedy or desist from such breach within a period of 14 days; or (b) the Customer enters into bankruptcy, individual or corporate voluntary arrangement, liquidation, receivership or administration.
10.2 The Company may suspend or cancel the Contract in whole or in part (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business and its obligations under the Contract due to any circumstances beyond the reasonable control of the Company provided that, if such circumstances continues for a continuous period in excess of 3 months, either party may give notice in writing to the other to terminate the Contract.
10.3 Notwithstanding any such termination or suspension of the Contract, the Customer shall pay the Company for all Goods delivered or Services provided up to and including the date of suspension or termination. Termination of the contract for any reason shall be without prejudice to the rights of either party which may have accrued up to termination.
11.1 Any intellectual property rights (including patents, registered and unregistered designs, trademarks and service marks and copyright and any applications for them) created by the Company in the course of the performance of the Contract or otherwise in the manufacture of the Goods or the provision of the Services shall remain the Company's property. Nothing in the Contract shall be deemed to have given the Customer a licence or any other right to use any of the intellectual property rights of the Company.
11.2 Both parties shall each keep confidential and shall not, without the prior written consent of the other, disclose to any third party or otherwise make public the terms or existence of the Contract or any other confidential information of the other party.
11.3 The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person. Save as provided in to clause 8.2, the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract.
11.4 If any provision of this Agreement is ruled to be invalid for any reason, that invalidity will not affect the rest of this Agreement which will remain valid and enforceable in all respects.
11.5 The Contract sets out the entire agreement between the parties in connection with the sale of the Goods and shall supersede all documentation previously issued by the Company purporting to set out its terms and conditions of sale of the Goods. The warranties set out in this Contract are the only warranties given by the Company and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.6 This Contract is governed by English law and all disputes arising out of or relating to this Contract shall be subject to the exclusive jurisdiction of the English courts.