In these Conditions of Sale (“Conditions”):- “The Company” means Car Gods 54 and its successors or assigns and “the Buyer” means any person, firm or company with whom the Company contracts for the supply any goods (“the Goods”).
All quotations and any offers made by the Company, and all orders accepted by the Company, are subject always to the Company’s standard Terms and Conditions of Sale (which shall be deemed to be incorporated into these Conditions and are annexed hereto). These Conditions shall apply to all contracts made between the Company and the Buyer for the sale and purchase of the Goods (“the Contract”) to the exclusion of any other terms and conditions, including without limit those which the Buyer purports to apply under any order. In the event of any conflict between the Company’s standard Terms and Conditions of Sale and these Conditions, the Company’s standard Terms and Conditions of Sale will prevail. Variations to the terms of any Contract (including these Conditions) will only be effective if agreed in writing and signed by a duly authorised officer of the Company.
All orders shall be deemed to be an offer to purchase the Goods subject to these Conditions and shall only be deemed accepted by the Company upon the earlier of the issue of a written acceptance of order by the Company, delivery or collection of the Goods.
All descriptive matter, specification and advertising issued by the Company is solely aimed at giving an approximate idea of the Goods described in them, they will not form part of the Contract.
Any Order accepted by the Company may only be cancelled or varied by the Buyer with the prior written consent of the Company, which shall be at the Company’s discretion entirely, and it shall be reasonable for the Company to consent subject to terms that the Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Company as a result of such cancellation or variation.
2) Delivery and Non-Delivery
Delivery times/dates named/accepted by the Company are given in good faith but are an estimate only. Time of delivery of Goods is not of the essence. The Company shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by failure (for any reason) to meet the delivery time/date stated/agreed (even if caused by the Company’s own negligence) and further, the Buyer shall only be entitled to cancel the Contract if such failure exceeds 180 days.
Goods shall be delivered as stated in the Company’s quotation or acceptance of order or if one is not issued as agreed by the Company. Delivery shall be deemed to take place when the Goods arrive at the place stated in the Company’s acceptance of order or if one is not issued at such place as is agreed by the Company except that delivery to a carrier for the purpose of transmission to the Buyer shall be deemed to be delivery to the Buyer. Section 32(2) of the Sale of Goods Act 1979 shall not apply.
The Company may deliver Goods in instalments. Deliveries of further instalments may be withheld until the Goods comprised in earlier instalments have been paid for in full. Default by the Company, howsoever, caused, in respect of one or more instalments shall not entitle the Buyer to terminate the relevant Contract as a whole.
If the Buyer fails or refuses to accept delivery of any Goods when they are ready for delivery in accordance with the relevant order; or the Company agrees (at its sole discretion) to postpone delivery of the Goods at the request of the Buyer; or the Buyer fails to provide any instructions, consents or authorisations required to enable the Goods to be delivered on the due date; then risk in the Goods shall pass to the Buyer, delivery of the Goods shall be deemed to have taken place and the Company may store or arrange for the storage of such Goods and charge the Buyer for all related costs and expenses (including storage and insurance) and may sell such Goods after 28 days after such failure or refusal and deduct any monies for any excess or charge the Buyer for any shortfall below the Contract price.
If the Company agrees to permit the Buyer to collect the Goods from the Company’s place of business then delivery shall be deemed to take place when the Company notifies the Buyer that the Goods are ready for collection (and for the avoidance of doubt the term “delivery” includes collection in these Conditions) and unless otherwise agreed in writing by the Company it is a condition of the Contract that the Buyer will collect the Goods within 5 days of such notice.
3) Force Majeure
In the event that the Company is prevented or delayed in or from carrying out its obligations under the Contract as a result of acts of God; governmental intervention or restriction, import or export regulations; wars; riots; strikes or trade disputes (including by and with the Company’s own employees); power failure; inadequate performance of, failure of or incorrect processing by computer systems; fire; flood; default of suppliers or sub-contractors, failure to obtain supplies, or breakdown of plant, machinery or vehicles or any cause beyond its control then the Company shall be relieved of its obligations and liabilities under the Contract for as long as such fulfilment is prevented.
Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery or at the notified time for delivery if the Buyer fails for whatever reason to take delivery of the Goods at the notified time. Section (20(2) Sale of Goods Act 1979 shall not apply.
Title to the goods (both legal and equitable) shall remain with the Company until full payment with cleared funds for all monies due from the Buyer to the Company under all contracts between the Company and the Buyer has been made, or title is properly vested in some other person by the operation of any statute.
Until title to the Goods passes:
the Buyer shall hold the Goods on a fiduciary basis as the Company’s bailee and must store the Goods (at no cost to the Company) such that they are easily identifiable as the property of the Company;
the Buyer must keep the Goods insured on the Company’s behalf for the full price of the Goods against “all risks” to the reasonable satisfaction of the Company and produce the policy of insurance to the Company upon request;
the Buyer shall hold the proceeds of insurance referred to in clause 4.3.2 above on trust for the Company and not mix such proceeds with any other monies to pay the proceeds into an overdrawn bank account; and
the Buyer shall still be entitled to re-sell, use or otherwise dispose of the Goods at full market value in the ordinary course of its business provided that such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale. Once payment becomes due, the Company may (without prejudice to its other rights) demand the immediate return of the Goods at any time and the Buyer must comply with (and bear the cost of) such demand immediately. If the Buyer fails to return such Goods, the Company or its successors in title, and their respective employees and agents, may enter (and the Buyer hereby grants an unconditional and irrevocable licence for such persons to enter) the Buyer’s premises (with or without vehicles) during normal business hours to remove the Goods (the cost of which shall be borne by the Buyer) and/or may sell or otherwise deal with the Goods.
All prices are subject to an alteration without notice. All Goods will be invoiced at the price specified on the Company’s price list at the date of invoice.
Unless otherwise agreed in writing by the Company prices set out in any of the Company’s price lists, quotations and any acknowledgement of order are exclusive of any value added, purchase or other taxes and any costs of carriage, package and insurance which shall be payable in addition to the price when the price is due.
The Company may invoice the Buyer for the Goods upon or at any time after delivery of the Goods and Goods delivered in instalments may be invoiced separately provided that if delivery of the Goods is postponed at the request or by the default of the Buyer then the Company may submit its invoice at any time after the Goods are ready for delivery or would have been ready in the ordinary course but for the request or default on the part of the Buyer.
Payment shall only be deemed received by the company from the Buyer upon receipt by the Company of cleared funds. Payment shall be made in full without any deduction, set off or abatement on any grounds. The Company may appropriate any payment made by the Buyer to any outstanding invoice. The Company may bring an action for the price of the Goods even though ownership of them may not have passed to the Buyer.
Time for payment of the Contract price (including, without limit, any costs or charges payable pursuant to Condition 2.4 shall be of the essence. The Buyer shall indemnify the Company against all expenses and legal costs incurred by the Company in recovering overdue amounts. Interest shall be payable by the Buyer on overdue amounts (before as well as after judgement) at the annual rate of 5 per cent above Barclays Bank plc base rate from time to time on the outstanding amount until the Contract price and/or such costs and/or charges are paid in full and such interest shall be compounded monthly.
If the Company is not the manufacturer of the Goods and the Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee as is given by the manufacturer to the Company. The Buyer accepts that the Company cannot give any warranty or guarantee in respect of the Goods.
Nothing in these Conditions shall exclude or limit the liability of the Company for fraudulent misrepresentation or death or personal injury caused by the Company’s negligence.
The Company shall not be liable to the Buyer in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof:
for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings; or
for damage to the Buyer’s reputation or goodwill; or
for any loss resulting from any claim made by any third party; or
for any special, indirect or consequential loss or damage of any nature whatsoever.
Without prejudice to Conditions 9.1 and 9.2 the Company’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the greater of the Contract price or the amount received by the Company for the claim under its insurance policy covering such risks provided that nothing in this Condition shall oblige the Company to obtain any insurance or claim upon any insurance which it holds. The Buyer acknowledges that delay in notifying any claim may prevent the Company recovering any money under such policy.
Nothing in these Conditions shall be construed as a representation or warranty by the Company that the design, manufacture, use or sale of the Goods is not an infringement of any third party’s intellectual property rights of any nature including but not limited to any and all inventions, patents, utility models, design rights, copyright, know-how, trade secrets, confidential information, trade marks, trade names and goodwill.
Without prejudice to any of its other rights the Company may immediately terminate any Contract and demand payment of any amount due or accruing to the Company whether under the Contract or otherwise, resell the Goods and/or withhold or cancel any deliveries if any of the following occurs or is likely to occur:
the Buyer is in breach of any of its obligations under the Contract which, if capable of remedy, the Buyer has not remedied within 30 days of receiving written notice from the Company; or
the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors or otherwise takes the benefit of any Act for the time being in force as a relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purposes only of re-construction or amalgamation or has a receiver, manager, administrator or administrative receiver appointed of its undertaking or any part thereof or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.
the buyer suffers or allows any execution to be levied on its property or is unable to pay its debts within the meaning of section 123 of the insolvency Act 1986 or the Buyer ceases trade.
The failure to exercise or delay in exercising by the Company of a right or remedy provided by any Contract or by law does not constitute a waiver of the right or remedy provided by the Contract or by law or a waiver of the Company’s other rights or remedies.
The Buyer shall not be entitled to assign or sub-contract any of its rights or the obligations under any Contract, without the prior written consent of the Company. The Company may assign, license or sub-contract all or any part of its rights or obligation under any Contract without the Buyer’s consent.
The Contract contains the whole agreement between the Company and the Buyer. All other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law.
In the event of any inconsistency between these Terms and Conditions and the General Terms and Conditions of Sale, the company alone shall determine on each and any occasion, which term and/or condition shall apply, and the company’s decision shall be final on each occasion.
If any provision of these Conditions shall be found by any judicial or other competent authority to be invalid or unenforceable, such invalidity or un-enforceability shall not affect the remaining provisions of these Conditions which shall remain in full force and effect.
A person who is not a party to any Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of any Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
The Contract shall be construed in accordance with and governed in all aspects by English Law and the Buyer submits to the exclusive jurisdiction of the English Courts.
Newgate House, Newgate, Rochdale, Lancashire, England, OL16 1AT