Terms & Conditions
(I) In these Terms and Conditi`ons: – (a) “the seller” means Car Spares Factors (Pearl Castle) Ltd (b) “the buyer” means the individual, firm, company or body with whom the seller contracts; (c) “the goods” means the articles or things or any part of them comprised in the contract between the buyer and the seller.
(II) These Terms and Conditions supersede all previous Terms and Conditions published or adopted by the seller and relate to sales within the mainland of the United Kingdom.
(III) Any quotation or estimate made or given by or on behalf of the seller whether in writing and/or orally is an invitation only to the buyer to make an offer and no order in pursuance of any quotation or estimate shall be binding on the seller unless and until it has been accepted by it.
(IV) These Terms and Conditions shall form the terms and conditions of any Contract between the seller and the buyer; any representation or warranty made by or on behalf of the seller prior to the contract whether the same was made orally or in writing is hereby expressly excluded and shall be of no effect.
(V) No variation of these Terms and Conditions will be affective unless accepted by the seller in writing signed by the director whether or not the same is endorsed upon, delivered with of referred to or in any other way incorporated in, with or by any Order or other document delivered by the buyer to the seller.
(VI) Acceptance by the buyer of part or full delivery of the goods shall constitute acceptance of these Terms and conditions.
(VII) The seller reserves the right to assign, sub-contract or sub-let the fulfillment of the contract or any part thereof. The buyer shall not be entitled to assign the benefit or the burden of the Contract without the consent of the seller in writing signed by the director.
(I) The seller shall be entitled to adjust the contract price of the goods at any time in the event of any variation in the cost of the seller of supplying the same or any part thereof caused by: – (a) any increase in the cost of materials or services required by the seller to complete the contract or any part of it; or (b) any increase in wages, production and manufacturing cost or other overheads; or (c) any other reason whatsoever beyond the control of the seller.
(II) Value Added Tax will be charged at the rate application at the date of invoice and unless otherwise stated any quotation or estimate provided by the seller is exclusive of such a charge.
(III) The buyer hereby agrees that it will pay in addition to the contract price the cost of carriage of the goods to the contracted place of delivery, save as provided for in clause 6 (I) below.
3. TERMS OF PAYMENT
(I) Unless otherwise agreed in writing signed by a director of the seller payment shall be made by the buyer net cash by the last day of the month following the month in which the goods were invoiced.
(II) In the event of payment not being made by the due date the seller shall be entitled to claim interest on the outstanding invoice sum at the rate of 4% above the base rate of Natwest Bank current during the period in which the sum remains outstanding and until the date of any judgment or sooner payment.
(III) In the event of the contract providing that the goods shall be delivered by installments shall be considered to be a separate Contract and construed as such in accordance with these Terms and Conditions; in particular, failure by the buyer to make payment by the due date for any one installment for whatever reason shall entitle the seller to suspend deliveries under the Contract but without prejudice to any other right that may have under the Contract or otherwise.
(IV) The buyer shall not be entitled to refuse or delay payment for any alleged defects in the goods, which the seller undertakes to correct under the terms of its warranty.
4. SUSPENSION AND CANCELLATION
(I) If the buyer shall fail to give delivery instructions or take delivery or make any payment when it becomes due or shall commit any other breach of contract and fail to remedy the same within 7 days of receiving the seller’s request in writing to do so or shall enter into any composition or arrangement with its creditors or if any distress or execution is levied upon any goods or property of the buyer or if the buyer commits any act of bankruptcy or if being an incorporated company shall have a receiver appointed of the whole or any part of its undertaking or shall pass a resolution for winding up (except solely for the purpose of amalgamation or reconstruction) or a court shall make an order to that effect or if not being an incorporated company shall have a receiving order made against it, the seller may defer or cancel any further deliveries and treat the contract and any other contract between the seller and buyer as determined but without prejudice to the seller’s right to any unpaid price for goods delivered under the contract and to damages for loss suffered in consequence of such determination.
(II) Save that the buyer may not cancel orders for goods which are made to its special requirements and/or specifications, the buyer may cancel and order for goods and the seller shall accept the cancellation provided that:- (a) the cancellation is made in writing signed on behalf of the buyer and received by the seller at least 5 working days prior to the date of dispatch of the goods as scheduled by the seller; and (b) the buyer pays prior to the scheduled date of dispatch any handling charge (being no more than 10% of the invoice value of the goods) which the seller in its discretion may impose.
(III) In the event of the seller being prevented from completing the contract either wholly or in part in accordance with the terms thereof for any reason whatsoever beyond its control then provided that notice of an intention to do so has been given in writing signed by a director of the seller, the seller may suspend any performance or delivery due from it under the contract for the period during which it is so prevented provided further that in the event of the contract being suspended for continuous period of more than 3 months then either party may give the other notice in writing to terminate the contract forthwith; in such circumstances the buyer shall make payment net cash for all goods supplied to the date of termination by the last day of the month following the month of the date of termination and the provisions of clause 3 (II) of these terms and conditions shall apply. The seller shall be under no liability whatsoever to the buyer for any direct or consequential loss or damage suffered by the buyer as a result of the seller’s inability to perform the contract in the circumstances set out above.
(IV) The seller shall suspend the performance of the contract upon receipt of a request in writing from the buyer so to do but such suspension shall be for a period of no more than 28 days and the buyer shall reimburse the seller for all storage charges and other additional costs the seller incurs thereby. In the event of the suspension as aforesaid continuing for a period in excess of 28 days then the seller may terminate the contract and the rights and liabilities of the parties shall be the same as if the contract has been suspended for a continuous period of more than 3 months as provided for in clause 4 (III) above.
(I) It is hereby understood and accepted by the parties that no guarantee is given as to delivery dates and that the seller is not liable for any direct or consequential loss or damage suffered by the buyer as result of any delay in delivery or failure to deliver.
(II) Where goods are to be delivered by an independent carrier of the goods by the seller to the buyer shall be deemed to be effected at the time of the delivery to or collection by the independent carrier.
(III) Where goods are to be collected by or on behalf of the buyer whether by its servants or agents or otherwise howsoever, collection of the goods shall constitute delivery to the buyer.
(IV) If the seller shall be prevented from delivering the goods in accordance with the contract as a result of delay or default on the part of the buyer or for any other reason beyond the seller’s control and the contract is not cancelled under the provisions of clause 4 above, the seller shall deliver the goods on such a date or dates as it may possibly do so taking into account its commitments to third parties. In the event of delay or default by the buyer the seller shall be entitled to be paid storage charges for the goods.
(V) From the time of delivery or collection or the prevention of delivery as provided above, the goods shall be at the sole risk of the buyer. The reservation of title provided for the clause 8 below shall not affect the buyer’s responsibility to affect such insurance cover, as it may deem appropriate
The buyer shall pay the cost of carriage except that where the value of the order exceeds a minimum value as started by the company from time to time, the cost of carriage will be paid by the seller.
(II) Risk shall pass as set out in clause 5 (v) above. The seller will not affect insurance on the goods during transit unless requested in writing by the buyer so too; the buyer shall be liable to reimburse the seller for the cost of such insurance.
7. CLAIMS FOR DAMAGE IN TRANSIT AND SHORTAGES
(I) It is understood and accepted by the parties that notwithstanding all possible care being taken by the seller, damage or shortage can sometimes occur during transit. In any event and without prejudice to the foregoing it is further agreed that there shall be a quantity tolerance of 5 % on custom-made articles.
(II) Save as aforesaid and subject to the provisions set out in clause
7 (III) and (IV) below, the seller undertakes to make up any shortage or to repair or at its discretion replace free to charge any such goods damaged in transit to the contracted place of delivery in which event the time for the delivery of the same shall be extended for such period as the seller reasonably may require.
(III) The seller shall be bound by the undertaking mentioned in clause
7 (II) only if: – (a) the buyer has inspected the goods immediately upon the arrival of the same at the buyer’s premises; and (b) the buyer within 3 days of the arrival of the goods has notified the seller in writing of any defect, damage or shortage or any other matter by reason of which the buyer alleges that the goods are not in accordance with the contract; and (c) (where goods are delivered by an independent carrier) the buyer within 3 days of arrival of the goods has notified the carrier in writing of the alleged defect, damage, shortage or other complaint; and (d) the buyer has preserved intact and as received the goods in respect of which a claim is made together with the packing for a period of 28 days from the date of delivery and has during that period permitted the seller its servants or agents full and free access to inspect the goods and investigate the claim.
(IV) If the buyer shall fail to do any such thing or give any such notice as may be required of its pursuant to clause 7 (III) the goods shall be deemed to have been delivered and to be in all respects in accordance with the contract and the buyer shall be found to accept and pay for the goods accordingly.
8. RETENTION OF TITLE
(I) Not withstanding the delivery of and the passing of risk in the goods to the buyer the title to and property in the goods shall remain vested in the seller whilst in the possession or custody of the buyer as long as the price or any part thereof remains unpaid or until re-sale of the goods or their conversion into other products.
(II) If required by the seller, the buyer will keep all such goods separate and apart from other goods and identified as the seller’s goods as may from time to time be determined by the seller.
(III) Pending the payment in full of the price of the goods, the buyer may deal with the goods only by way of resale in the ordinary course of its business but this authority shall automatically terminate if the buyer fails to pay by the due date the price of the goods or if the buyer shall enter into any composition or arrangements with its creditors of its creditors or if any distress or execution is levied upon any goods or property of the buyer or if the buyer commits any act of bankruptcy or if being an incorporated company shall have a receiver appointed of the whole or any parts of its undertaking or assets or shall pass a resolution for winding up (except solely for the purpose of amalgamation or reconstruction) or a Court shall make an order to that effect or if not being an incorporated company shall have a receiving order made against it or if the seller gives to the buyer written notice signed by a director terminating such authority.
(IV) If the buyer authority to resell shall be terminated as above, all goods supplied by the seller in the possession, custody or under the control of the buyer whether paid for or not shall be returned to the seller who may enter any premises where the same may be to repossess them.
(V) The seller shall be under no duty to effect or resell at any particular value or price the goods so repossessed but if it does resell, any surplus remaining after satisfaction of the price payable as between buyer and seller including any Legal expenses incurred by the seller in the exercise of its under this clause shall be paid to the buyer.
(VI) In the event that the buyer shall sell or otherwise dispose of the goods prior to the receipt of the price thereof by the seller such sale or disposal shall be deemed to be a sale or disposal on behalf of the seller and the proceeds of any such sale or disposal shall be held by the buyer in trust for an on behalf of the seller.
(VII) The proceeds derived from any such sale or disposal as mentioned in clause 8 (VI) above shall be paid into a separate and readily identifiable bank account until the price of all the goods supplied by the seller to the buyer has been satisfied.
(VIII) The buyer so required by the seller shall assign to the seller the benefit of any contract by which the goods were sold or disposed.
(I) Subject to clause 13 (II) below the seller’s liability in respect of any defect in or failure of the goods supplied or any loss injury or damage attributable there to is limited to making good by replacement or repair or otherwise at its option any such defect or failure which under proper use or conditions of storage appears therein and arises solely from faulty design materials or workmanship within a period of 12 calendar months after the goods have been dispatched to the buyer. It shall be a condition precedent to the seller’s liability under this warranty that the defect item is immediately returned to the seller upon being found defective together with a claim under this clause in writing. Should any claim be accepted it is agreed that the seller shall be permitted a reasonable period of time in which to replace or repair or otherwise rectify the defect or failure.
(II) The seller’s liability under this warranty shall automatically cease if:- (a) there is any sum outstanding from the buyer to the seller save in accordance with clause 3 herein; or (b) the seller its servants or agents is denied free access to the defective goods; or (c) the buyer permits persons other than the seller its servants or agents to attempt or effect any repair, replacement or other rectification of the defective goods; or (d) the seller has uninsured or not properly maintained the goods; or (e) the defect is caused by fast wear or tear or accident.
(III) The responsibility of the seller is limited to the terms of the warranty and save as is otherwise provided herein and except of death or personal injury resulting from negligence of the seller its servants or agents, the seller shall not be liable for any claim for direct or indirect, consequential or incidental loss, injury or damage whatsoever made by the buyer or any third party against the seller arising out of or in connection with any defects in the goods which are the subject of the contract whether or not such defect is directly wholly or in part caused by negligence, act omission, default or neglect of the seller its servants or agents.
(IV) Insofar as this Warranty applies to parts made good under clause 9 (I), the period of 12 months specified in that clause shall commence from the time when the part has been made good.
(I) The seller reserves the right to dispose of rejected or sub-standard parts (whether the same were manufactured to the buyer’s specification or not) as it shall deem fit.
11. BUYER’S MATERIALS
(I) All moulds, tools and other materials which are the property of the buyer and which are held at the seller’s premises whether in store, on deposit, on loan or for any other reasons are so held at the entire risk of the buyer and seller shall not be obliged to insure the same in respect of loss or damage howsoever caused, whether the same is incurred in the process of manufacture or not.
(II) In the event of moulds, tools or other materials not being used for a period of 5 years from the date of first ordering there from the same shall be deemed to be no longer required and may be disposed of by the seller as it sees fit.
(I) The seller may alter in its discretion any design or characteristic of the goods.
(II) The seller may alter any price of the goods without prior notice to the buyer.
13. GOODS AND MATERIALS MANUFACTURED BY THIRD PARTIES
(I) Where the goods which are the subject of the contract are not manufactured by the seller and are delivered direct to the buyer or collected by the buyer from the manufacturer or other third party the seller shall not be liable for any defect in or loss or damage to such goods whatsoever and whomsoever occurring.
(II) Where the goods are supplied by the seller but manufactured by a third party the seller shall use its best endeavor to pass on to the buyer such benefits of warranties and quarantines of such goods, which the seller has obtained under its contract with the third party.
(I) The seller reserves the right to correct any clerical or typographical errors made by its servants or agents at any time.
(I) If at any time a clause or part of a clause contained in these Terms and Conditions shall be held to be or becomes void or unenforceable for any reason under any applicable law, the same shall be deemed to be omitted here from.
(II) The omission of any clause or part of a clause in accordance with clause 15 (I) shall not affect the validity or enforcement of the remaining provisions of these Terms and Conditions.
(I) These Terms and Conditions and every contract made there under shall be governed by and construed in all respects in accordance with English law.
(II) The English Courts shall be exclusive jurisdiction and the seller and the buyer hereby submit to that jurisdiction.