AUTOMOTIVE SPECIALISTS

FASTIDIOUS ABOUT FINE QUALITY AND DETAIL

AUTOMOTIVE SPECIALISTS

performance28 showroom

FASTIDIOUS ABOUT FINE
QUALITY AND DETAIL

TERMS OF SUPPLY OF GOODS AND SERVICES TO BUSINESS CUSTOMERS

Performance28 Limited (as defined below as the Company) is an automotive specialist, selling high value/high specification used sports, performance, and prestige cars.

The Company also offers related services including car servicing, repairs, modifications, and detailing.

The Company operates the https://performance28.com/ website.

1) DEFINITIONS, INTERPRETATION AND GENERAL

1.1   In these Terms:

(a)  ‘Business Day’ a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business

(b)  ‘Company’ means Performance28 Limited, a company registered in England and Wales under company number 11757686 having its registered office at 7-9 Front Street, Chester Le Street, Co. Durham, England, DH3 3BQ;

(c)  ‘Customer’ means the individual, firm, company or other party with whom the Company contracts;

(d)  ‘Contract’ the contract between the Company and the Customer for the supply of Goods and/or Services in accordance with these Terms;

(e)  ‘Contract Specification’ the description or specification of the Goods and/or the Services provided in writing by the Company to the Customer;

(f)   ‘Data Protection Legislation’ the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

(g)  ‘Force Majeure Event’ means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including but not limited to strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors;

(h)  ‘Goods’ any goods or other deliverables supplied to the Customer by the Company (for example, used sports, performance and prestige cars, or vehicle parts, accessories, or consumables sold to the Customer separately or as part of the Services);

(i)   ‘International Supply Contract’ means such a contract as is described in section 26(3) of the Unfair Contract Terms Act 1977;

(j)   ‘Manufacturer’s Warranties’ the warranties given by any third-party manufacturer in relation to Goods supplied by the Company;

(k)  ‘Order’ the Customer’s order for the supply of Goods and/or Services as set out in the Customer’s purchase order;

(l)   ‘Qualifying Goods’ means the supply of Goods and any associated Services by the Company, where the relevant Goods have been designed and manufactured by the Company:

(m) ‘Services’ the services (including the supply of any ancillary Goods) supplied by the Company to the Customer as set out in the Contract Specification including:

(i)     car servicing (for example, servicing vehicles in line with manufacturer requirements, oil change, filter change, diagnostics, engine cleaning, and mechanical repairs);

(ii)     car modifications (for example, upgrading springs and coil-overs, body kit transformation, upgrading wheels and tires, upgrading exhaust systems, and reversing or altering existing modifications); and

(iii)    car detailing (for example, exterior detailing, interior detailing, engine bay cleaning, and ceramic coating);

(n)  ‘Terms’ means the terms of sale set out or referred to in the Company’s acknowledgment of Order;

(o)  ‘Third Party Specification’ has the meaning given in clause 3;

(p)  ‘UK Data Protection Legislation’ all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

(q)  ‘Warranty Period’ means the period commencing on completion of the supply of the Qualifying Goods and concluding [three months or (where the Goods are a Vehicle) 3000 miles from the supply date (whichever occurs sooner)]:

(r)  ‘Working Hours’ means 8.00 am to 4.30 pm, excluding Saturdays, Sundays, and Bank Holidays.

1.2   The headings in these Terms are for convenience only and are not for the purpose of interpretation.

1.3   Any reference in these Terms 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.

1.4   Failure by the Company to enforce strict compliance with these Terms by the Customer will not constitute a waiver of any of the provisions of these Terms.

References to clauses are to clauses of these Terms unless stated otherwise.

2) CONTRACT TERMS, VARIATIONS AND REPRESENTATIONS

2.1   No Order in pursuance of any quotation or otherwise shall be binding on the Company unless and until such Order is accepted in writing by the Company. Any contract made between the Company and the Customer shall be subject to these Terms and, save as set out in these Terms, no representative or agent of the Company has authority to agree any terms or make any representations inconsistent with them or to enter into any contract except on the basis of them.  Any such term representation on contract will bind the Company only if in writing and signed by a director of the Company.

2.2   Unless otherwise agreed in writing by the Company (which shall include anything contained in any quotation delivered by the Company to the Customer) these Terms shall apply to the exclusion of any terms stipulated or referred to by the Customer in its Order (whether by written purchase order or otherwise) or pre-contract negotiations or any inconsistent terms implied by law or trade custom, practice or course of dealing.

2.3   The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Terms. The Customer is responsible for ensuring that the terms of the Order and any applicable specification are complete and accurate and that the Customer gives the Company any necessary information relating to the Goods and Services within a sufficient time to enable the Company duly to perform its obligations in connection with this Contract.

2.4   The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.5   Where the Company has not given a written acknowledgment of Order, these Terms will nonetheless apply to the Contract provided that the Customer has had prior notice of them. Where the Customer does not formally accept a quotation from the Company but the Customer continues to instruct the Company to supply the Goods or Services and/or pays any invoice of the Company, the Customer’s continued instructions and/or payment will be deemed to be acceptance of these Terms.

2.6   Any samples, drawings, descriptive matter, or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures or website are produced for the sole purpose of giving an approximate idea of the goods and services described in them. They shall not form part of the contract or have any contractual force.

2.7   The Company reserves the right to correct any clerical or typographical error made by its employees (whether in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued) at any time without any liability on the part of the Company.

2.8   For the avoidance of doubt, except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms shall be effective unless it is agreed in writing and signed by a director of the Company.

2.9   The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.

3) SPECIFICATION, INSTRUCTION OR DESIGN

3.1   The Contract shall include only such Goods and Services as described in the Contract Specification or the Order (if subsequently accepted by the Company in accordance with clause 2.1). Unless specifically agreed in writing, all drawings dimensions and weights submitted by the Company shall be taken to be approximate and shall not form part of the Contract Specification. The Company reserves the right to make any changes in the Specification which are required for the Goods or Services to conform with any applicable statutory or regulatory or safety requirements or any other changes which the Company may reasonably require, provided such changes do not substantially affect the quality or performance of the Goods.

3.2   If Services are supplied in accordance with a specification, instruction or design supplied by the Customer or any third party on behalf of the Customer (“Third Party Specification”) then:

(a)  the suitability and accuracy of that Third Party Specification will be the Customer’s responsibility;

(b)  the Company reserves the right to amend any such Third Party Specification if required by any applicable statutory or regulatory requirements;

(c)  the Customer will indemnify the Company against all infringement or alleged infringement of any third party’s intellectual property rights and any loss, damage or expense which it may incur by reason of any such infringement or alleged infringement in any country in connection with such Third Party Specification; and

(d)  the Customer will indemnify the Company against any loss, damage or expense in respect of any liability arising in any country by reason of the goods being made or the services being provided to such Third Party Specification.

(e)  the Customer undertakes to ensure that all necessary permissions or consents (including those of third parties) are obtained in order to permit the Company to supply Services in accordance with the relevant Third Party Specification.

(f)    Clauses 3.2 shall survive termination of the Contract.

 

4) CUSTOMER’S REPRESENTATIONS

4.1     The Customer shall provide the Company with adequate instructions and accurate information regarding the Goods and/or Services it wishes to purchase from the Company. If the Company suffers any delay caused by the Customer’ inadequate instructions or inaccurate information, or delay caused by the Customer’s failure to give the Company adequate instructions or accurate information, the supply of Goods and/or Services shall be extended for such period as the Company may reasonably require.

4.2     Where the Contract requires the provision of Goods and/or Services at the Customer’s premises, the Customer hereby grants a licence to the Company, its employees and sub-contractors (together with appropriate transport) to enter upon the Customer’s premises for the purpose of supplying the Goods and/or Services.  The Customer shall ensure that its premises and all plant and equipment which is used by the Company’s employees or sub-contractors or with which they may come into contact or to which they may be exposed complies with the Health and Safety at Work Act 1974, all relevant statutory provisions (as defined in that Act) and all other obligations imposed by statute and common law relating to health and safety and will indemnify the Company against any loss, damage or expense in respect of any failure by the Customer to comply with its obligations.

 

5) QUOTATIONS AND PRICES

5.1   A quotation by the Company is not an offer. Quotations are valid for 30 days only and subject to withdrawal or revision at any time before acceptance of the Order by the Company in accordance with clause 2.1.

5.2   Any Goods and Services requested in addition to those identified in the Contract Specification will be chargeable for in addition to the price stated in the Contract as will the costs of all tests, alterations, additions and all other work undertaken at the request of the Customer but not identified in the Contract Specification. Those additional costs will be calculated by the Company having regard to the rates and prices set out in its quotation or in the Specification or as otherwise agreed with the Customer and will be paid for by the Customer within 30 days from the date of the Company’s invoice or demand for payment.

5.3   Unless otherwise agreed in writing, the Company shall be entitled to increase its prices at any time to take account of any increase in the cost to the Company of purchasing any goods or materials or manufacturing, working on or supplying any goods or services (including, but not limited to, any such increase arising from any error or inadequacy or change to any Third Party Specification any delay caused by any instructions of the Customer or a third party or failure of the Customer or third party’s failure to give the Company adequate or accurate information or instructions or any change in labour costs, taxes or insurance premiums) and such increased prices ruling at the date of supply of Goods and/or Services by the Company shall be substituted for the previous contract price. 

5.4   If the Order states that the price given for the Goods is estimated, and the new price exceeds the previous estimate, the Company will contact the Customer to advise it of that increase and ask for permission to continue. This may happen, for example, because the Customer orders Services and after dismantling the car it transpires that further work or parts are necessary, or the price the Company has to pay for the Goods (for example, vehicles, parts, accessories or consumables) increases after it accepts the Customer’s order. If the Customer does not give the Company permission to continue on the basis of the revised estimate, the Company will attempt to agree another solution with the Customer (for example, using substitute parts or refraining from carrying out certain works). If a mutually acceptable resolution cannot be reached, both the Company and the Customer will have the right to end the Contract. When the Contract is ended in accordance with this clause, it will end immediately and the Company will refund to the Customer any sums paid by you for Goods not provided, but may deduct from that refund (or charge the Customer) for Goods and/or Services already provided (e.g. Services provided before the cancellation).

5.5   All prices are quoted are inclusive of road fund licence but exclusive of accessories, delivery, car tax and VAT, current at the date of the order. If the rate of amount of car tax, accessories or delivery changes between the date of order and the date of delivery, you must pay the amount current at the date of delivery and the Customer shall pay any and all taxes, duties and other governmental charges payable in respect of the Goods and/or Services.

6) DELIVERY OF GOODS

5.1   A quotation by the Company is not an offer. Quotations are valid for 30 days only and subject to withdrawal or revision at any time before acceptance of the Order by the Company in accordance with clause 2.1.

5.2   Any Goods and Services requested in addition to those identified in the Contract Specification will be chargeable for in addition to the price stated in the Contract as will the costs of all tests, alterations, additions and all other work undertaken at the request of the Customer but not identified in the Contract Specification. Those additional costs will be calculated by the Company having regard to the rates and prices set out in its quotation or in the Specification or as otherwise agreed with the Customer and will be paid for by the Customer within 30 days from the date of the Company’s invoice or demand for payment.

5.3   Unless otherwise agreed in writing, the Company shall be entitled to increase its prices at any time to take account of any increase in the cost to the Company of purchasing any goods or materials or manufacturing, working on or supplying any goods or services (including, but not limited to, any such increase arising from any error or inadequacy or change to any Third Party Specification any delay caused by any instructions of the Customer or a third party or failure of the Customer or third party’s failure to give the Company adequate or accurate information or instructions or any change in labour costs, taxes or insurance premiums) and such increased prices ruling at the date of supply of Goods and/or Services by the Company shall be substituted for the previous contract price. 

5.4   If the Order states that the price given for the Goods is estimated, and the new price exceeds the previous estimate, the Company will contact the Customer to advise it of that increase and ask for permission to continue. This may happen, for example, because the Customer orders Services and after dismantling the car it transpires that further work or parts are necessary, or the price the Company has to pay for the Goods (for example, vehicles, parts, accessories or consumables) increases after it accepts the Customer’s order. If the Customer does not give the Company permission to continue on the basis of the revised estimate, the Company will attempt to agree another solution with the Customer (for example, using substitute parts or refraining from carrying out certain works). If a mutually acceptable resolution cannot be reached, both the Company and the Customer will have the right to end the Contract. When the Contract is ended in accordance with this clause, it will end immediately and the Company will refund to the Customer any sums paid by you for Goods not provided, but may deduct from that refund (or charge the Customer) for Goods and/or Services already provided (e.g. Services provided before the cancellation).

5.5   All prices are quoted are inclusive of road fund licence but exclusive of accessories, delivery, car tax and VAT, current at the date of the order. If the rate of amount of car tax, accessories or delivery changes between the date of order and the date of delivery, you must pay the amount current at the date of delivery and the Customer shall pay any and all taxes, duties and other governmental charges payable in respect of the Goods and/or Services.

7) SUPPLY OF THE SERVICES

7.1   The Company shall provide the Goods and/or Services to the Customer in accordance with the Contract Specification in all material respects.

7.2   The Company shall use reasonable endeavours to meet any performance dates for the Services specified and agreed in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the services. The Company shall be entitled to defer provision of the services until any monies due from the Customer have been received.

7.3   The Company shall have the right to make any changes to the Goods and/or Services which are necessary to comply with any applicable law or safety requirement or which do not materially affect the quality of the Goods and/or Services, and the Company shall notify the Customer in any such event.

7.4   The Company shall provide the Goods and/or Services using reasonable skill and care.

7.5   If the Customer shall for any reason prevent (or allow any other person to prevent) the Company (or its subcontractors) from supplying the Goods and/or Services (or any part thereof) on the agreed date or dates except where such prevention is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract, without prejudice to any other rights of the Company whether under these Terms or otherwise, the Company shall be entitled to make an additional charge in respect of any  costs incurred as  a result of repeated provision of the Services necessitated by that failure.

7.6   The Customer shall provide all sufficient and accurate information requested by the Company in a timely fashion to enable the proper supply of the Goods and/or Services by the Company so as not to delay or disrupt the Company in performing its obligations under the Contract. The Company shall be entitled to rely on the accuracy and sufficiency of all information provided to it by the Customer, and to make assumptions on the basis of such information, when supplying the Goods and supply of Services.

7.7   The Customer agrees to have due regard to all information supplied by the Company relating to the use of the Goods necessary to ensure the Goods will be safe and do not pose a risk to the health and/or safety of any person at all times when the Goods are being set, used, cleaned or maintained by any person.

7.8   The Customer agrees to indemnify the Company in respect of any and all claims, losses, costs, and expenses suffered or incurred by the Company arising from any act, omission or default of the Customer (including any breach by the Customer of any of its obligations under this Contract).

8) PAYMENT

8.1   Subject to clause 8.2, payment to the Company shall be made by the Customer in full in Pounds Sterling before any Services are rendered (or, when applicable, before any Goods are delivered). Where the price envisages deposit payments, payment in instalments, the price paid for the Goods and/or Services shall be paid to the Company in advance, in the instalments as set out in the Order.  Payment shall be made as follows:

(a)  in one full payment in clear funds by debit card or credit card; or

(b)  in one full payment by cash, but the Company does not accept payments in cash over £8,000 whether paid as one payment or as several smaller payments amounting to over £8,000 in the same transaction, or within any 3 months’ period.

Once payment has been received in full, the Company shall provide an estimated date for the commencement of the supply of the Services (or where applicable, an estimated delivery date for dispatch of the Goods). The parties hereby agree that the Company’s obligations under these Terms are wholly conditional upon such payment being made.

8.2   The Company may in its sole discretion, designate to the Customer approved credit terms and in any such case (unless otherwise specified in writing by the Company) the Customer shall pay each invoice submitted by the Company:

(a)  within 30 days of the date of the invoice notwithstanding that property to the goods has not passed to the Customer; and

(b)  in full, in pounds sterling and in cleared funds to a bank account nominated in writing by the Company, and

time for payment shall be of the essence of the Contract.

8.3   In the event of the provision of the Services taking longer than one (1) month to complete, the Company reserves the right to render interim accounts on a monthly basis (which are payable on the same terms as set out in clauses 8.2(a) and 8.2(b)).

8.4   Time of payment shall be of the essence of the contract. Without prejudice to any other rights it may have the Company reserved the right to charge interest at HSBC Bank plc base rate plus 4% or at the rate specified from time to time under the provisions of Late Payment of Commercial Debts (Interest) Act 1988 (whichever is the higher) on all overdue accounts and for the purposes of clauses 9 and 12 the full purchase price for the Goods and/or Services shall include all interest payable hereunder.

8.5   The Customer shall not in any circumstances be entitled to withhold payment for monies due whether as a means of setting of monies owed to it by the Company or otherwise. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer

8.6   The Customer shall pay to the Company an amount equal to any costs and expenses incurred (on a full indemnity basis) by the Company in recovering from the Customer any monies due and payable by the Customer to the Company and for the purposes of clauses 9 and 12 the full purchase price of the Goods and/or Services shall include all costs and expenses payable hereunder.

9) FAILURE TO PAY, CANCELLATION OR DEFERMENT

9.1   For the purposes of this clause 9 “an Intervening Event” shall be any of the following:

(a)  failure by the Customer to make any payment when it becomes due;

(b)  breach by the Customer of any of the Terms of the Contract;

(c)  the Customer’s proposal for or entry into any composition or arrangement with creditors;

(d)  the presentation against the Customer of any petition for a bankruptcy order, administration order, winding-up order or similar process;

(e)  the appointment of an administrative receiver or receiver in respect of the business of any part of the assets of the Customer;

(f)   the Company forming the reasonable opinion that the Customer has become or is likely in the immediate future to become unable to pay his, her or its debts (adopting, in the case of a company, the definition of that term set out in section 123 of the Insolvency Act 1986); and

(g)  any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1(b) to clause 9.1(b) (inclusive).

9.2   If there shall be an Intervening Event, the Company may within a reasonable time thereafter, defer or cancel any further provision of Services, stop any Goods in transit and treat the Contract as determined but without prejudice to its rights to the full purchase price for Services rendered or Goods supplied (which shall become immediately due) and damages for any loss suffered in consequence of such determination.

9.3   Cancellation by the Customer will only be accepted at the discretion of the Company and in any case on condition that any costs or expenses incurred by the Company up to the date of cancellation and all loss or damage resulting in the Company by reason of such cancellation will be paid by the Customer to the Company forthwith.  Acceptance of such cancellation will only be binding on the Company if in writing and signed by a director of the Company.

9.4   Any costs or expenses incurred by the Company due to suspension or deferment of any Order by the Customer or in the event that the Customer defaults in collecting, or giving instructions for the delivery of any goods or the performance of any services  will be payable by the Customer forthwith on demand.

9.5   Without prejudice to the Company’s other rights under this Clause 10, the Company shall be entitled to suspend the Contract for a period of up to sixty days in the event an Intervening Event occurs. If the period of suspension reaches sixty days the Company shall either end the suspension or terminate the Contract.

10) LIMITATION OF LIABILITY

10.1   Nothing in these Terms shall limit or exclude the Company’s liability for:

(a)  death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable):

(b)  fraud or fraudulent misrepresentation;

10.2   Subject to Clause 10.1:

(a)  the Company shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, goodwill or business opportunity or any indirect or consequential loss arising under or in connection with the Contract; and

(b)  the Company shall no liability or any responsibility for any loss, or damage of any nature due to or arising for any cause beyond its reasonable control

(c)  the Company’s total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise shall in no circumstances exceed the price paid for the Goods and/or Services under the agreed Order.

10.3    Any and all liability of the Company under or in connection with this Contract shall cease with the expiry of the Warranty Period specified in Clause 11.2.

10.4    The limitations and exclusions of liability applying to the contractor under this Contract shall likewise apply to the Company’s directors, personnel, sub-contractors and sub-suppliers of any tier and their personnel.

11) WARRANTY

11.1   In relation to Goods that are not Qualifying Goods, the Company shall as far as it is able pass on to the Customer the benefits of any Manufacturer’s Warranties if the Goods which the Company supplies to the Customer are new. In such circumstances, the Company undertakes that any pre-delivery work specified by the manufacturer will be carried out and they will be sold with the benefit of the any Manufacturer’s Warranty. The Manufacturer’s Warranty is provided directly by the manufacturer. Remedial work under warranty may be carried out by any dealer in the UK or the EEA authorised directly or indirectly by the manufacturer, who may repair or replace an appropriate part of the Goods, provided the Customer has complied with the terms of the warranty as described in the documentation given to it.

11.2   Transferring the Manufacturer’s Warranty. The Customer may transfer the Manufacturer’s Warranty at clause 11.1 to a person who has acquired the Goods from the Customer. The manufacturer (or the dealer authorised by the manufacturer to repair or replace the relevant part of the Goods) may require the person to whom the warranty is transferred to provide reasonable evidence that they are now the owner of the Goods.

11.3   In relation to Qualifying Goods only and subject always to Clauses 11.4 and 11.5, the Company warrants that on completion of the supply of the Qualifying Goods and for the Warranty Period the Qualifying Goods shall be free from material defects in materials and workmanship. The Company shall at its sole discretion repair or replace or pay reasonable costs for the repair or replacement of the defective Qualifying Goods which the Company’s examination confirms are defective in accordance with this Clause 11.

11.4   The parties acknowledge and agree that:

(a)  the Customer shall make a full inspection of the Qualifying Goods upon completion

(b)  the Customer shall notify the Company with a written notice containing full particulars of any defects and the circumstances in which defects occurred, within 14 days of delivery in the case of defects apparent upon inspection and in the case of defects not so apparent provide such notification within a reasonable time of discovery (in any event within the Warranty Period); and

(c)  the Customer shall return the defective Goods to the Company or its authorised service depot (as directed by the Company) and pay all transportation charges, duties and taxes associated with return and subsequent redelivery of the Goods to the Customer; or

(d)  if, at the Company’s election, the Company arranged for a technician to visit the Customer’s installation to repair or replace the defective Qualifying Goods, the Customer shall bear the expense of all transportation charged for the technician and his equipment, including any applicable duties and taxes, accommodation and living expenses and normal charges for the technician’s time while travelling (save that the Customer shall not be liable for any charge in respect of the technician’s time on site actually engaged in carrying out the repair or replacement of such defective Qualifying Goods).

(e)  the Customer shall provide the Company with working access to examine the Qualifying Goods without costs to the Company; and

(f)   the Customer shall take all appropriate steps to mitigate damage caused by the defective Qualifying Goods; and

(g)  the Customer shall provide the Company with adequate time and opportunity in which to repair or replace any part of the defective Qualifying Goods; and

11.5   The Company shall not be liable for the defective Qualifying Goods if:

(a)  the defect arises because the Customer failed to follow the Company’s oral or written instructions as to use or maintenance of the Qualifying Goods or (if there are none) good trade practice;

(b)  the defect arises as a result of the Company following any Third Party Specification;

(c)  the Customer or a third party alters or repairs the product of the Qualifying Goods;

(d)  the defect is due to circumstances which existed before the transfer of risk occurred and is not as a result of fair wear and tear,

(e)  the product of the Qualifying Goods have been subjected to improper use, accident or improper maintenance by the Customer or a third party;

(f)   the Customer prevents the Company from remedying the defect.

(g)  such Goods are not Qualifying Goods, in which instance, the Company’s only obligation shall be to, insofar as it is able, to pass on the benefit of the Manufacturer’s Warranty in accordance with clause 11.1.

11.6   The repair or replacement of defective goods during the Warranty Period in accordance with Clause 11.2 shall not as regards to such goods extend the period of warranty therein provided.

11.7   The Customer’s remedies under this clause shall be in place and to the exclusion of any other remedy to the Customer in relation to the defects (including latent defects) in the Services and any Goods including damage arising therefrom (whether the claims are based in contract, tort, negligence, indemnity or any other legal theory whatsoever). Any and all other warranties, terms and conditions, express or implied which may have otherwise applied in relation to such matter are excluded to the extent allowed under law.

11.8   Where the Company repairs or re-supplies Qualifying Goods in accordance with the foregoing provisions of this Clause 11 or otherwise, any time specified for delivery shall be extended for such period as the Company may reasonably require.

12) RETENTION OF TITLE

12.1   Save in the case of any circumstances where the parties expressly agree in writing to adopt incoterms in an International Supply Contract, and subject to any agreement in writing by the Company, the risk in Goods shall pass to the Customer on the relevant Delivery Date.

12.2   The following provisions shall, subject to clause 12.3 apply to all Contracts and to all Goods which under the Contract the Company agrees to supply to the Customer.  No failure by the Company to enforce strict compliances by the Customer with such provisions shall constitute a waiver thereof and no termination of the Contract shall prejudice limit or extinguish the Company’s rights under this clause.

(a)  Upon delivery of the Goods the Customer shall hold the Goods solely as bailee for the Company and the Goods shall remain the property of the Company until such time as the Customer shall have paid to the Company and the Company shall have cleared funds for the full purchase price of all Goods, whether under the Contract or otherwise.  Until this time the Company shall be entitled to recover the Goods or any part thereof and, for the purpose of exercising such rights, the Customer hereby grants a licence to the Company, its employees and agents (together with appropriate transport) to enter upon the Customer’s premises and any other location where the Goods are situated and remove the Goods.

(b)  The Customer is hereby licensed to agree to sell on the Goods on condition that the Customer shall inform its customer of the provisions of sub-clauses 12.2(a). The Customer acts as the Company’s bailee in respect of any such sale and shall immediately upon receipt of the proceeds of sale, and whether or not payment has become due under clause 8 remit to the Company the full purchase price of the Goods sold on less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Company.

(c)  The Customer shall maintain an appropriate insurance in respect of the Goods from the date or dates on which the risk therein passes to the Customer.  In the event of any loss or damage occurring while the Goods remain the property of the Company, the Customer shall immediately on receipt of the insurance monies, remit to the Company the full purchase price of the Goods lost or damaged less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Company.

(d)  The licences granted under this clause 12.2 shall be terminable forthwith at any time upon notice by the Company to the Customer.

12.3   Where the parties expressly agree in writing to adopt incoterms for an International Supply Contract, property in the Goods shall pass to the Customer in accordance with the provision of the relevant incoterm.

13) INTELLECTUAL PROPERTY

Unless otherwise agreed in writing by the Company any and all intellectual property rights in the Services, any Goods and in any tooling and in any drawings of other documentation supplied or produced by the Company shall vest in and remain vested in the Company, the Customer agrees to execute any documents the Company deems necessary to give effect to this clause. All drawings, plans, specifications and method statements and related documents are to be returned to the Company immediately on written request.  The Customer is not permitted to use (except for the purposes set out in the Contract Specification or Order) or make copies of such documents without having first obtained the consent of the Company in writing.

14) TOOLING

All tooling purchased or produced by the Company for the Contract shall be and remain the property of the Company unless otherwise agreed in writing, notwithstanding that the Customer may have made payment or part payment therefor.

15) CONFIDENTIALITY

15.1     Each party undertakes that it shall not at any time during this Contract, and for a period of five years after termination of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 15.2.

15.2     Each party may disclose the other party’s confidential information:

(a)  to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 15; and

(b)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3   No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.

16) TEST AND MARKING

16.1   If the Company agrees to carry out any tests, certification or marking shall be provided in respect of the Goods it shall be entitled to charge therefor.

16.2   The Customer shall pay to the Company an amount equal to any costs payable to third parties in respect of any tests, independent design review or report carried out by that third party in respect of the goods at the request of the Customer together with an administration fee (equal to 10% of the third party costs) in respect of the Company procuring the same.

16.3   If the Company agrees that any tests shall be carried out in the presence of the Customer or his representative the Company shall notify the Customer of the date from which it is or will be ready to carry out such tests.  The Customer undertakes that he or his representative will, by prior appointment, attend at the premises where the goods are situate within 3 days after such date for the purpose of witnessing such tests and agrees that in default of such attendance the Company may proceed with the tests in his absence and he shall be bound by the results thereof.

17) USE AND SAFE HANDLING

The Customer warrants that it will pass on to all third parties to whom it may supply the Goods or any of them all information as to the use and safe handling of such Goods as may have been provided to the Customer by the Company.

18) LAW AND JURISDICTION

The Customer warrants that it will pass on to all third parties to whom it may supply the Goods or any of them all information as to the use and safe handling of such Goods as may have been provided to the Customer by the Company.

19) FORCE MAJEURE

19.1     Provided it has complied with clause 19.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Contract by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

19.2     The Affected Party shall:

(a)  as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this Contract; and

(b)  use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

19.3   If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than two weeks, the party not affected by the Force Majeure Event may terminate this Contract by giving one week’s written notice to the Affected Party

20) ASSIGNMENT

20.1     The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

20.2 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

21) NOTICES

21.1   Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax.

21.2   A notice or other communication shall be deemed to have been received: if delivered personally, when left at the registered address of the parties; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax, one Business Day after transmission.

21.3   The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

22) SEVERANCE

22.1   If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

22.2    If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

23) DISCLAIMER

23.1   The Company provides aftermarket automotive vehicle parts (Aftermarket Parts) for automotive vehicles including, but not limited to:

(a)  springs and coilovers;

(b)  body kits;

(c)  wheels and tyres; and

(d)  exhaust systems.

23.2   While the Company provides every care and effort to fit and install Aftermarket Parts to our customer’s vehicles correctly and without fault, it does not take responsibility for:

(a)  any damage to the Customer’s vehicle caused by the installation of the Aftermarket Parts (including any damage to your vehicle arising as a result of the incompatibility of the Aftermarket Part with the specification of your vehicle); and/or

(b)  any invalidation of any warranties applicable to your Vehicle,

unless such damage was a direct result of any negligent installation work undertaken by the Company.

 

IT IS THE CUSTOMER’S RESPONSIBILITY TO SATISFY THEMSELVES THAT THE AFTERMARKET PARTS ARE COMPATIBLE WITH THEIR VEHICLE SPECIFICATION AND TO DETERMINE THAT THE INSTALLATION OF THE AFTERMARKET PARTS WILL NOT INVALIDATE ANY WARRANTIES APPLICABLE TO THE CUSTOMER’S VEHICLE.

The Customer agrees to indemnify and hold the Company harmless from claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising as a result of the Customer’s failure to undertake the responsibilities outlined in this clause 23.

23.3   The Customer acknowledges and agrees that the Company has advised him to review the compatibility of the Aftermarket Parts with their vehicle specification and check whether the installation of the same will invalidate any warranties applicable to the Customer’s vehicle including where appropriate making all necessary enquiries with their vehicle manufacturer.

23.4   In circumstances where the Customer provides the Company with any Aftermarket Parts for installation, the Customer is responsible for ensuring the compatibility of those parts with their vehicle. The Company does not accept liability for any and all faults directly or indirectly attributable to its installation of Aftermarket Parts not provided by it.

23.5   Save in the event of failure or fault due to a direct result of the Company’s negligence, the Company does not accept liability for any mechanical and/or electrical failure or faults (including, but not limited to, accidental, misuse or neglect) prior to or after the installation by the Company of any Aftermarket Parts to the Customer’s vehicle caused by any pre-existing mechanical and/or electrical faults. This does not limit any liability which cannot legally be limited, including liability for death or personal injury caused by negligence.

23.6   By instructing the Company to fit Aftermarket Parts to the Customer’s vehicle, the Customer accepts that there is a risk of invalidating any warranty pertaining to that vehicle. The Company does not accept liability for invalidating any warranties applicable to the Customer’s vehicle.

 

23.7   The Customer’s vehicle insurance provider may require them to notify them of any modifications made to their vehicle including installation of Aftermarket Parts to the Customer’s vehicle. It is the Customer’s responsibility to notify their insurer of the installation of Aftermarket Parts to their vehicle; non-notification of such installations may invalidate the Customer’s insurance. The Company does not accept liability for any insurance invalidation under any circumstances.

 

24) WAIVER

A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

25) THIRD PARTIES

A person who is not a party to the Contract shall not have any rights to enforce its terms save that the Contract shall be for the benefit and enforceable by any parent undertaking of the Company and any subsidiary undertaking of the Company or of any such parent undertaking.

26) DATA PROTECTION

1.1     Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 26 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

1.2     The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Company is the processor of the personal data shared by the Customer with the Company for the purpose or in connection with the performance by the Company of its obligations under this Contract (Protected Data). Clause 26.7 sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of Protected Data and categories of data subject.

1.3     Without prejudice to the generality of clause 26, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Protected Data to the Company for the duration and purposes of this Contract.

1.4     Without prejudice to the generality of clause 26, the Company shall, in relation to any Protected Data processed in connection with the performance by the Company of its obligations under this Contract:

(a)  process that Protected Data only on the documented written instructions of the Customer unless the Company is required by applicable law to otherwise process that Protected Data. Where the Company is relying on the laws of a member of the European Union or European Union law as the basis for processing the Protected Data, the Company shall promptly notify the Customer of this before performing the processing required by the applicable law unless the applicable law prohibits the Company from so notifying the Customer;

(b)  ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Protected Data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c)  ensure that all personnel who have access to and/or process the Protected Data are obliged to keep the personal data confidential; and

(d)  not transfer any Protected Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

(i)    the Customer or the Company has provided appropriate safeguards in relation to the transfer;

(ii)   the data subject has enforceable rights and effective legal remedies;

(iii)  the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv)  the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Protected Data;

(e)  assist the Customer, at the Customer’s cost, in responding to any request from a data subject of the Protected Data and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f)   notify the Customer without undue delay on becoming aware of a personal data breach affecting the Protected Data;

(g)  at the written direction of the Customer, delete or return the Protected Data and copies thereof to the Customer on termination of this Contract unless required by applicable law to store the Protected Data; and

(h)  maintain complete and accurate records and information to demonstrate its compliance with this clause 26 and immediately inform the Customer if, in the opinion of the Company, an instruction infringes the Data Protection Legislation.

1.5     The Customer consents to the Company appointing the third party processors set out in Clause 26.7 to process the Protected Data under this Contract. the Company confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 26 and in either case which the Company confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Company, the Company shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 26 subject to clause 10

1.6     The Customer acknowledges that the Company are reliant on the Customer as controller for direction as to the extent to which we are entitled to use and process the Protected Data. Consequently, the Company will not be liable for any unauthorised or non-compliant loss, access or other processing of the Protected Data or any claim brought by a data subject arising from any action or omission by The Company, to the extent that such action or omission resulted directly from the Customer’s instructions or the Customer’s failure to provide instructions. The Customer will indemnify and hold the Company harmless against all losses, damages, expenses and costs (including court costs and reasonable legal fees) that the Company suffers or incurs as a result of the Customer’s instructions or the Customer’s failure to provide instructions.

1.7     The data processing particulars applicable to this Contract are as follows:

(a)  Scope and nature: the Company may process the Protected Data in connection with the provision of the Services to the Customer.

(b)  Purpose of processing: performance of the Company’s obligations under this Contract.

(c)  Duration of the processing: the term of this Contract.

(d)  Types of personal data and categories of data subjects:

Name

Email Address

Home Address

Telephone number

Credit card details

(e)  Approved Sub-processors:

Sub-processor

Location

Purpose of processing

[e.g. Google]

[e.g. USA (subscribes to the EU-US Privacy Shield]

[e.g. Hosting email exchange between the Company and the Customer]