1.1 Contract - these terms and conditions and the agreement between the Parties as to Goods, Delivery Address (if any) and Contract Price.
1.2 Contract Price - the price agreed between the Parties for the Goods (exclusive of VAT).
1.3 Customer - the person, firm or company with whom the Vendor contracts.
1.4 Goods - the goods ordered by the Customer.
1.5 Guarantee Period - the period of 12 months from the date of delivery of the Goods or the running of 12,000 miles by the vehicle in which the Goods are installed whichever is shorter. In respect of electrical and chromed items only the period shall be reduced to 6 months or 6,000 miles respectively.
2.1 The Vendor agrees to supply the Goods to the Customer and the Customer agrees to pay the Contract Price in accordance with the terms of the Contract.
2.2 These terms and conditions shall apply to all contracts for the provision of goods and/or services by the Vendor to the Customer to the exclusion of all other terms and conditions including any which the Customer may purport to apply under any order or other document.
2.3 Placing an order, collection or acceptance of delivery of the Goods by the Customer shall be deemed conclusive evidence of the Customer's acceptance of the Contract.
2.4 The Vendor may employ sub-contractors to carry out any part of its obligations under the Contract at its sole discretion and it may assign its obligations and any liabilities under this Contract to any other party. The Customer may not assign its obligations under this Contract without the written consent of the Vendor.
2.5 Any variation of these terms and conditions (including any special terms and conditions agreed between the Parties) shall be inapplicable unless agreed in writing by Moto-Build Ltd on behalf of the Vendor.
2.6 Any quotation or estimate submitted by the Vendor to the Customer shall be subject to these terms and conditions unless otherwise stated and shall be valid for a maximum of seven days.
At any time prior to delivery or collection of the Goods the Vendor may change the specification of the Goods.
4.1 The Customer shall make such arrangements as are necessary to take delivery of the Goods at its premises, or to collect the Goods, on such date as the Vendor notifies to the Customer.
4.2 The Customer shall install the Goods only in the vehicle for which they are intended and shall read before installation and follow the relevant manufacturer's workshop manual procedures and any special instructions contained on the Vendor's invoice. Failure to follow such procedures and instructions may result in danger to person and property. Particular attention is drawn to the danger of failing to use correct torque settings.
4.3 The Customer shall not use the Goods in any vehicle intended for racing, speed trials or rallying.
5.1 The Contract Price shall be agreed between the Parties before delivery or collection of the Goods.
5.2 The Vendor's price lists do not represent a binding offer for sale and are for guidance only. The Vendor reserves the right at any time before delivery or collection of the Goods to change its price lists and quotations or estimates and to increase the Contract Price if;
5.2.1 The cost to the Vendor of providing or producing such Goods increase due to any factor beyond the control of the Vendor.
5.2.2 The Customer orders different or additional Goods.
5.2.3 The Customer causes any delay.
5.3 Except for credit accounts, all sums due under the Contract will be paid by the Customer on receipt of invoice at or in advance of delivery or collection.
5.4 The Vendor may approve credit accounts for some customers. Such credit accounts, any credit limits and any other conditions are entirely at the Vendor's discretion and may be varied at any time without notice. If the Customer has an approved credit facility and the Contract Price does not take its aggregate credit beyond any limit imposed by the Vendor, the Customer shall pay the Contract Price by the last day of the calendar month following the invoice date. If the Contract Price does take the aggregate credit beyond any such limit, the excess shall be payable in accordance with clause "5.3" above.
5.5 The Contract Price does not include VAT or any similar sales tax or customs duty, which will be paid additionally by the Customer at the then prevailing rate, nor carriage or insurance costs unless expressly stated, which may be added by the Vendor to the Contract Price.
5.6 No act or omission of the Customer in collecting the Goods or which prevents the Vendor from delivering the Goods shall prevent the Vendor from raising an invoice in accordance with this clause 5.
5.7 If the Customer fails to make any payment in accordance with this Contract the Vendor may take any or all of the following steps;
5.7.1 Terminate the Contract and charge the Customer a stocking charge at the rate of 2% of the Contract Price per month until the date of resale if the Vendor cannot resell the Goods within 14 days of termination at an equivalent price.
5.7.2 Charge the Customer interest (both before and after any judgement) on the amount unpaid at the rate of 2% per month until payment in full is made.
5.7.3 Appropriate any payment made by the Customer and set-off any monies due to the Customer, whether under this Contract or any other contract or otherwise (including any VAT applicable), to or against the unpaid invoice or invoices.
5.7.4 Refuse to deliver or allow collection of the Goods or provide any services or guarantee work under this or any other Contract until payment is made in full.
5.8 The Vendor will accept as cleared payment Visa and MasterCard credit cards (subject to clause 5.9 below), personal UK cheques covered by a guarantee card, Switch, Sterling, Banker's Drafts and Bank Transfers. The Vendor may accept other payment methods including business cheques, overseas cheques drawn on a UK Bank, Euro cheques, foreign currency and cheques by prior arrangement. In those cases the Vendor reserves the right to make an additional administrative charge and to delay delivery or collection until cleared funds have been received, except on credit accounts. Monthly credit accounts must be settled by Swift Interbank Transfer payable in £Sterling. Unpaid cheque charges will be passed on to the Customer.
5.9 For payment by Visa or MasterCard, the vendor reserves the right to require such details as it may deem necessary to authenticate validity of payment to its satisfaction prior to the delivery or collection of the goods.
6.1 The Goods shall be at the Customer's risk as from delivery to the Customer's premises or, if the Customer collects or arranges transportation, collection from the Vendor's premises save for damage caused to the Goods by any negligent act of the Vendor or any of its sub-contractors and the Customer will be responsible for insuring the Goods from the time risk passes. In the event that the Customer arranges transportation, the Vendor reserves the right to arrange insurance until delivery to the Customer's premises and to charge the Customer for such insurance.
6.2 In spite of delivery having been made, title in the Goods shall not pass from the Vendor to the Customer until the Contract Price has been paid in full.
6.3 Until title in the Goods passes to the Customer, the Customer shall hold the Goods on a fiduciary basis as bailee for the Vendor. The Customer shall store the Goods so that they may be distinguished from other goods in its possession.
6.4 Notwithstanding that the Goods remain the property of the Vendor, the Customer may sell or use the Goods in the ordinary course of its business and shall deal as principal in any such transactions. Until title in the Goods passes to the Customer, the entire proceeds of any sale or otherwise of the Goods shall be held on trust for the Vendor. The Vendor shall be entitled to recover any such monies notwithstanding that title has not passed to the Customer.
6.5 Until such time as title in the Goods passes to the Customer, the Customer shall on request deliver up such Goods as have not ceased to be in existence or resold, to the Vendor. If the Customer fails to do so, the Vendor may enter upon any premises owned, occupied or controlled by the Customer where the Goods are situated and repossess the Goods. On the making of such request the Customer's rights under clause 6.4 shall cease.
6.6 The Vendor will be responsible at the Customer's cost for the delivery of the Goods to the Customer's premises unless they are to be collected.
6.7 Any intellectual property rights in the Goods shall remain the property of the Vendor. No right or license is granted except the right to use or resell the Goods.
6.8 Products which are in short supply may be subject to surcharges or exchanges which will usually be shown on the Vendor's price lists. The Customer will be invoiced for any Surcharges, which will be refunded if it delivers its original part at its own expense to the Vendor in a suitable state for reconditioning. Exchange products will only be supplied on exchange for the Customer's original part in addition to payment of the Contract Price.
The Vendor will use all reasonable endeavours to deliver the Goods or to make them available for collection on any agreed date but this will be treated as a target date only and time will not be of the essence. In particular, the Vendor shall not be responsible for delay caused by factors beyond its control, including failure of the Customer to comply with clause 4 and adverse weather conditions.
8.1 The Customer may, at its expense, return the Goods to the Vendor within 14 days of delivery or collection and, provided these conditions are met, terminate this Contract for any reason. Such returned goods must be in perfect condition, in their original packaging and accompanied by a copy of the invoice and an explanatory note as to the reason they are returned. The Customer will be liable to pay a handling charge of 20% of the Contract Price, and any balance of monies paid to the Vendor will be returned. The Vendor also reserves the right to raise a stocking charge in accordance with clause 5.7.1 in the event that it cannot resell the Goods within 14 days of termination at an equivalent price and the right to refuse to accept the return of Goods specially ordered which it considers unsaleable.
8.2 Within 14 days of delivery of the Goods the Customer shall notify the Vendor in writing of any defects which are known to it at that time. If no such notification is received the Customer shall be deemed to have accepted the Goods. After acceptance, whether deemed or otherwise, the Customer shall not be entitled to reject the Goods.
8.3 During the Guarantee Period the Customer shall notify the Vendor in writing within 7 days of discovery of any defects in the Goods. It shall also supply the Vendor with such further information as it requests. The Vendor shall use its best endeavours to correct any defect notified to it within the Guarantee Period within a reasonable time of receiving such notification, and may at its discretion:-
8.3.1 Carry out such work as is necessary to remedy the defect.
8.3.2 Take such part of the Goods as is necessary away from the Customer's premises to carry out repair work or otherwise. 8.3.3 Replace all or any part of the Goods
8.3.4 Issue a credit note or refund in respect of the defective parts.
8.4 The Vendor shall not be obliged to provide guarantee services and may invoice the Customer for the cost of any work or materials brought about by the Customer's notification of any defects where such defect is not attributable to any act or omission of the Vendor or is attributable to:
8.4.1 Misuse of the Goods by the Customer, including continued use after discovery of defects.
8.4.2 Failure to follow the Vendor's advice as to use and maintenance of the Goods, including failure to install in accordance with clause 4.2.
8.4.3 Any modification made to the Goods by the Customer or by third parties without the prior written consent of the Vendors.
8.5 The Customer shall take delivery of the Goods notwithstanding that the quantity delivered is greater or less than that contained in the Specification, provided that shortages which are notified to the Vendor within 14 days of delivery or collection will, at the Vendor's discretion, be made up or a credit note issued for the shortfall.
9.1 The Vendor warrants that the Goods will comply with the Specification.
9.2 The Customer warrants that is has not relied on any representation made by or on behalf of the Vendor or upon any descriptions, illustrations or specifications contained in any material produced by or on behalf of the Vendor save for the Specification of the Goods.
9.3 The Customer may not resell the Goods into the USA without the written permission of the Vendor because the Goods may not comply with US product regulations. The Customer will indemnify the Vendor against any claims, liabilities or costs it incurs due to its breach of this clause.
9.4 The Customer shall indemnify the Vendor against all claims and liabilities arising from the Customer's breach of this Contract or from its negligence in use or resale of the Goods.
10.1 The Vendor shall not be responsible for any defects in the Goods which are not notified in writing to it within the Guarantee Period nor for any defects notified to it within this period but not in accordance with the time limits set out at clauses 8.2 and 8.3 above nor for any defects which are the fault of the Customer or any third party.
10.2 The terms of this Contract represent the whole agreement between the parties and except where the Customer is dealing as a consumer all other warranties, conditions, terms, undertakings or representations of any kind, whether express or implied, statutory or otherwise relating to the provision of any goods or services under or in connection with the Contract including (without limitation) as to the condition, quality, performance, merchantability or fitness for purpose of the Goods or any of them or the standard of care used in the provision of any services are hereby expressly excluded from the Contract save for the undertakings implied by the Sale of Goods Act 1979 section 12 in respect of title to the Goods.
10.3 The Vendor shall not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused whether arising under contract, tort (including negligence) or otherwise including (without limitation) loss of production, loss or corruption of data, loss of profits or of contracts, loss of operation time and loss of goodwill.
10.4 the Vendor's total liability (whether in contract, tort including negligence or otherwise) under or in connection with this Contract or based on any claim for contribution or indemnity shall not exceed the Contract Price in aggregate.
10.5 The Customer agrees that except as expressly provided in this Contract, the Vendor will not be under any liability of any kind whatever and however caused, arising directly or indirectly in connection with this Contract.
11.1 The Vendor may terminate this Contract with immediate effect on written notice if:-
11.1.1 The Customer ceases or threatens to cease to carry on its business;
11.1.2 A Receiver, Administrator or similar Officer is appointed over all or any part of the assets or undertaking of the Customer;
11.1.3 The Customer makes any arrangement for the benefit of its creditors;
11.1.4 The Customer goes into liquidation save for the purpose of a genuine amalgamation or reconstruction;
11.1.5 the Customer commits a material breach of this Contract and (in the case of a breach capable of remedy) fails to remedy it within 5 working days of receipt of written notice from the Vendor specifying the breach and containing a warning of an intention to terminate if the breach is not remedied.
11.2 The Vendor may terminate this Contract at its discretion at any time by giving notice in writing to the Customer.
11.3 Upon termination of this Contract for whatever cause the Customer shall pay to the Vendor all monies due to the Vendor at that date including the total value of Goods delivered or collected up to the date of termination. The Vendor may at its discretion retain or take back part or all of the Goods in lieu of the payment attributable to such material. Whether or not the Goods have been delivered or collected, the Vendor may raise a handling charge of 20% of the Contract Price in respect of a termination under clauses 5.8, 11.1 or at the Customer's instigation.
Neither Party shall be liable for any delay in performing or failing to perform any of its obligations under this Contract due to any Act of God, war, strike, lock-out, industrial action, fire, flood, drought, tempest or other event beyond the reasonable control of either party.
13.1 This Contract is the complete statement of the agreement between Parties relating to the subject matter of the Contract and supersedes all previous communications, representations and other arrangements, written or oral.
13.2 If any part of this Contract is found by a court or other competent authority to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of this Contract which shall continue to be valid and enforceable to the fullest extent permitted by law.
This Contract will be construed in accordance with and governed by the laws of England and Wales and each Party agrees to submit to the jurisdiction of the courts of England and Wales.