Terms and Conditions of Sale
1 Interpretation
1.1 In these conditions:
‘BUYER’ means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
‘GOODS’ means the goods (including any instalment of the goods or any parts for them) specified on the order form to which these Conditions are annexed.
‘SELLER’ means POOLE CLAYTON AUTOMOTIVE LIMITED.
‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
‘CONTRACT’ means the contract for the purchase and sale of the Goods.
‘WRITING’ includes facsimile transmission and comparable means of communication.
1.2 Any reference in 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.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of the sale.
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller
which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives
of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless
confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that is does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or
agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advise or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of
offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3 Orders and specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing
by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any
applicable specifications) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (If accepted by the Seller).
3.4 The Seller reserves the right to make any changes in the specification for the Goods which are required to conform with any applicable safety or other statutory requirements.
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in
Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs, damages, charges and expenses incurred by the Seller as a result of cancellation.
4 Price of the Goods
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is
no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only, unless accepted earlier by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right to increase the price of the Goods to reflect any increase in the cost to the Seller
which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise
agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the
Seller.
5 Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Buyer shall pay the price for
the Goods to the Seller in cash or by authorised credit card immediately on delivery or, where appropriate on collection. Failure to make payment in full to the Seller shall entitle the Seller to: -
5.1.1 forthwith cancel the Contract without any liability to the Buyer; and
5.1.2 refuse to release the Goods to the Buyer or, where appropriate, remove them from the custody of the Buyer.
5.2 Where the Buyer is an authorised account holder of the Seller, the following provisions shall apply:-
5.2.1 the Seller shall be entitled to invoice the Buyer for the price of the Goods on or anytime after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods., in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2.2 the Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice, not withstanding that delivery may not have taken place and title to the Goods has not passed to the Buyer. The time of the payment shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.2.3 if the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled: -
a a. immediately to suspend further deliveries to the Buyer:-
b. immediately to appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation of the Buyer); and
c. if payment is 60 days overdue, to charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of two per cent per annum above Lloyds TSB Bank Plc base rate from time to time. Until payment is made in full (a part of a month being treated as a full month for the purpose of calculating interest).
d. if payment is 90 days overdue, to forthwith cancel the Contract.
6 Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after
the Seller has notified the Buyer that the Goods are ready for collection, or if the Seller agrees some other place for delivery, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or
the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time
stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage
6.5.2 after a period of 7 days sell the Goods at the best price readily obtainable and (after deducting all reasonable
storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7 Risk and Title
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions,
title to the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as title to the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and
have not been re-sold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the
Goods that remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8 Warranties and liability
8.1 The Seller shall be under no liability in respect of any defect in the Goods arising from fair wear and tear, wilful
damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval.
8.2 The Seller shall be under no liability to the Buyer if the total price for the Goods has not been paid by the due date for payment.
8.3 The Buyer is aware that the Goods are not manufactured by the Seller and the Buyer shall only be entitled to the
benefit of any such warranty or guarantee as is given by the manufacturer to the Seller namely that: -
8.3.1 the Goods will correspond with their specification at the time of delivery and will be free from defects in
material and workmanship for a period of 12 months form the date of their initial use or 12 months from delivery, whichever is the first to expire:
8.3.2 the Goods will be of satisfactory quality.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (restrictions
on statements) order 1976). The statutory rights of the Buyer are not affected by these Conditions.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to
correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 3 days from the date of delivery or (where the defect of 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 Buyer does not notify the Seller as provided herein, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6 Where any valid claim in respect of any of the Goods is notified to the Seller in accordance with these Conditions,
the Seller shall be entitled to replace the Goods (or part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the
Buyer 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 of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, 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 Buyer, except as expressly provided in these Conditions.
8.8 The Seller shall not be liable to the Buyer or be deemed to be breach of the Contract by reason of any delay in
performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to:-
8.8.1 any cause beyond the Seller’s reasonable control; or
8.8.2 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees if the Seller or of
a third party).
9 Indemnity
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent,
copyright design trade mark or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the buyer in settlement of the claim provided that:-
9.1.1 the Seller is notified of such claim as soon as reasonably practicable;
9.1.2 the Seller is given full control of any proceedings or negotiations in connection with any such claim:
9.1.3 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceeding or
negotiations;
9.1.4 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such
proceedings without the consent of the Seller (which shall not be unreasonably withheld):
9.1.5 the Buyer shall do nothing, which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.6 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for all
damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and;
9.1.7 without prejudice to any duty of the Buyer at common law the Seller shall be entitled to require the Buyer to
take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
10 Insolvency of Buyer
10.1 This clause applies if;
10.1.1 the Buyer 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
10.1.2 an encumbrancer, takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the
Buyer and notifies the Buyer accordingly.
10.2 If this clauses applies then, without prejudice to any right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer and, if the Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement to the contrary.
11 General
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in
part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4 The Contract shall be governed by the laws of England.