Wholesale Terms and Conditions of Sale
Unless other terms and conditions are expressly accepted by MICHELDEVER TYRE SERVICES (hereinafter called ‘the Company’ ) by means of a written amendment to these terms and conditions signed by a Director of the Company, or the Company Secretary, and referring specifically to the terms or conditions to be amended, the Contract shall be on the terms and conditions set out below (hereinafter together called ‘the Contract Terms’) to the exclusion of any other terms and conditions whether or not the same are endorsed upon, delivered with, or referred to in any purchase order or other document delivered by the Purchaser to the Company.
1 GUARANTEE AND LIABILITY
(i) The Company will as far as they reasonably can, transfer or make over to the Purchaser the benefit of any guarantee or warranty which may have been given by the manufacturer in respect of any goods the subject of this Contract which are not made by the Company. In addition if during the period of twelve months from the date of despatch any part manufactured by the company is found upon inspection by the Company to have proved defective in material or workmanship under normal use and service and when properly installed and connected the Company will free of cost repair or if the Company so wish replace such part provided the Company is informed of the defect as soon as possible after discovery thereof and should the Company so require the part is returned carriage paid. Any cost or expense incurred by any person removing or refitting the part shall be borne by the Purchaser. The Company will not however be liable to repair or replace any part of it if has not been properly maintained before and during use in accordance with the Company’s recommended maintenance procedure or has been subjected to any misuse, unauthorised repair, replacement modification or alteration.
(ii) Save as aforesaid the Company will in no circumstances be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any defect in material or workmanship or any defect in the goods or services supplied or by any negligence of the Company or any servant or agent of the Company and in so far as it is lawful to do so all warranties and conditions express or implied statutory or otherwise are hereby expressly excluded.
1 ORDERS AND QUOTATIONS
(i) The Company reserves the right to accept or refuse orders. The Company also reserves the right (without prejudice to any other remedy) to cancel any uncompleted order or to suspend delivery in the event of any of the Purchaser’s commitments with the Company not being met or if the Company are of the opinion that such commitments will not be met by the Purchaser.
(ii) The Company reserves the right to refuse the Purchaser’s acceptance of a quotation unless such quotation is stated to be open for a specific period and is not withdrawn within such period.
(iii) The acceptance of a quotation must be accompanied by sufficient information to enable the Company to proceed with the order forthwith. otherwise the Company will be at liberty to amend the quoted price to cover any increase in cost which has taken place after acceptance. Any sample submitted with the Company’s quotation is returnable.
(iv) If the Purchaser cancels or purports to cancel the order or any part thereof or fails to take delivery of any goods at the time agreed (if any) should such cancellation or failure cause dislocation to the Company’s production, the Purchaser shall be liable without prejudice to any other rights or the Company to claim damages to indemnify the Company against any loss, damage or claim resulting from such dislocation and against any loss damage or expense incurred by the Company in connection with the manufacturer or non-manufacturer of the goods – including the payment of licence or other fees the cost of any material, plant or tools used or intended to be used therefore and the cost or labour and other overheads.
4 CATALOGUE AND PRICES
(i) Catalogue, price lists and other advertising matter are only an indication of the type or goods offered and no particulars therein shall be binding upon the Company. (ii) All prices quoted therein are subject to alteration or withdrawal from tine to time without notice and unless other wise agreed in writing the price is based upon costs ruling at the date when goods are delivered which shall be deemed to be when they are handed over to the carrier or otherwise appropriated to the Contract by the Company. (iii) Except as provided in paragraph (ii) above, all prices are based on the cost of material, labour, transport and of conforming to statutory obligations ruling at the date of order and if between that date and the date on which the goods are delivered variations (either by increase or decrease) shall occur in the costs the Company may amend the price to provide for these variations.
5 DESPATCH AND PACKING
(i) The Company will endeavour to complete the Contract or deliver the goods within the time agreed (if any) but in no circumstances will it be liable for any loss or damage of any kind whatsoever caused directly by any delay in the completion of the Contract or delivery of the goods. If by any reason of force majeure the completion of the Contract or the delivery of the completion or, the Contract or the delivery of the goods is in the Company’s opinion rendered impractical the Company shall be at liberty to terminate the Contract by sending by ordinary post to or by delivering to the Purchaser a Notice in writing to that effect. Thereupon the Purchaser will pay to the Company such a sum as will together with any other sums paid previously bear the same proportion to the Contract price (including any variation thereof) as the goods delivered or services contracted for.
(ii) The goods are despatched at the risk of the Purchaser and the Company shall not be liable for any loss of or damage to the goods after these have been delivered which shall be deemed to be when they are handed over to a carrier or appropriated to the Contract by the Company.
(iii) Where the Purchase alleges that the goods are deficient in numbers upon delivery or defective at that time the Company shall not be liable for such claims unless they and the carrier concerned are advised in writing within 3 days or receipt by the Purchaser.
(iv) Where the Purchaser returns goods to the Company for any reason other than that they are defective, the Company shall levy a handling and administration charge of10% or the current selling value of the goods.
6 DESCRIPTION OF GOODS
(I) All goods will be supplied as specified subject to reasonable availability to the Company or materials.
(II) Variations by the Company within the specification of the goods shall not constitute a breach of Contract or impose upon the Company any liability whatsoever.
If by any reason of instructions or the lack of instructions from the Purchaser despatch in accordance with the Contract is delayed for 21 days after the Purchaser has been notified that the goods are ready for despatch for the purpose of Clause 10 (Payment) the goods shall thereupon be deemed to have been delivered. if and for so long as the company’s storage facilities permit the Company may at its option store the goods and the Purchaser shall pay a reasonable charge therefore PROVIDED ALWAYS the Company shall be under no obligation whatsoever to the Purchaser in respect of the goods stored and neither should they be liable for any damage howsoever arising caused as a result of their failure to keep such goods safe or free from damage.
No right or licence is granted by The Contract terms to the Purchaser under any patent, copyright, registered design or other industrial property right except the right to use or to resell the goods.
9 THIRD PARTIES
(i) The Purchaser undertakes to bring the relevant terms and conditions of this Contract to the notice of all persons to whom the goods are sold, offered for sale, let, hired or otherwise disposed of and undertakes to ensure that the Contract or other arrangement between the Purchaser and other such persons requires such other persons to comply with the said stipulations and also contains a provision in like terms mutatis mutandis to those in this clause.
(ii) Except a Group Company, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(iii) Group Company in the Contract Terms means any holding company of the Company from time to time and any subsidiary of the Company or such holding company from time to time where “holding company” and “subsidiary” have the meanings attributed to them under section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) a person (or its nominee) whether by way of security or in connection with the taking of security or (b) its nominee.
(I) Unless otherwise agreed the price in respect of the goods shall be payable no later than the last weekday of the month, following the date of invoice.
(ii) Notwithstanding that the goods shall be at risk Purchasers from the date of delivery the property in the goods shall not pass except as provided by Clause 11.
(iii) In the event that the Purchaser shall fail to pay for the goods on the due date then the Purchaser shall pay to the Company interest at the rate of 4% above the base lending rate of Barclays Bank PLC at the date of such default.
(iv) Not withstanding that the property shall not pass save as provided by Clause 11 the Company shall be entitled to sue in respect of any monies due to the Company.
11 OWNERSHIP OF GOODS
(I) Property in all goods delivered by the Company will only pass to the Purchaser when all monies owing to the Company in respect of the goods have been paid to the Company.
(ii) The Purchaser’s power of sale shall automatically determine if a receiver is appointed over any of the assets for the undertaking of the Purchaser or a winding up order is made against the Purchaser or the Purchaser goes into voluntary liquidation or commits any act of Bankruptcy.
(iii) Notwithstanding anything to the contrary herein contained the Company shall be entitled at any time and in any event upon the termination of the power of sale as herein provided by servants or agents to enter upon the Purchaser’s premises for the purposes of recovering any goods the property of the Company which had not been paid for in full.
12 LEGAL CONSTRUCTION
(I) Failure by the Company to enforce any of the Contract Terms shall not be construed as a waiver of any of the Company’s right hereunder.
(II) This Contract shall be construed and operate in accordance with English Law and the Purchaser hereby submits himself to the jurisdiction or the English Courts.
(iii) Nothing in this Contract other than the following sub-clause shall exclude or restrict any liability to which the Company may be subject by reason or any misrepresentation made by it before this Contract was made or any remedy available to the Purchaser by reason of such misrepresentation.
(iv) The Company shall not incur any liability nor shall any right accrue to the Purchaser by reason of any misrepresentation arising:
(a) Printing and clerical errors.
(b) Statements in oral, written or any other form by third parties accepted by the Company in good faith and repeated by it.
(c) Oral Statements not confirmed by the Company in writing.
13 SET OFF AND COUNTERCLAIM
(i) In the event that the Purchaser is in default under Clause 10, the Company may in its absolute discretion, set off amounts owed by the Purchaser to the Company or to any Group Company for goods and services supplied by the Company and/or a Group Company against other monies payable by the Company to the Purchaser.
(ii) The Purchaser will not be entitled to withhold payment of any invoice by reason of any right of set off or counterclaim which the Purchaser may have or allege it has against the Company and/or a Group Company or for any other reason whatsoever.
If any provision of this agreement (whether a clause or a sub-clause or part thereof) is held to be invalid or unenforceable such invalidity or unenforceability shall not affect the other provisions (or part of such clauses or sub-clauses) which shall remain in full force and effect