1.1 The term "seller" shall mean J.R.Wadhams Ltd trading as "JRW";
1.2 The term "buyer" shall mean the person, firm or company so named in the purchase order;
1.3 The term "quotation" shall mean the tender or quotation issued by the seller for the supply or the goods including these conditions, the specification, drawings or other documents annexed by the supplier to the quotation;
1.4 The term "purchase order" shall mean the purchase order issued by the buyer to the supplier for the purchase of the goods;
1.5 The term "goods" shall mean the goods to be supplied by the supplier as identified in the quotation;
1.6 "The contract" shall mean the contract between the supplier and the buyer consisting of the seller's quotation, these conditions of sale and the purchase order accepting the quotation, but not any terms and conditions of purchase, other than these conditions, incorporated in or referred to in the purchase order.
1.7 The term "date for delivery" shall mean the firm date for delivery, if any, stated as such in the quotation;
1.8 The term "contract price" shall mean the sum stated in the quotation to be paid by the buyer to the seller for the supply of goods together with such other sums as may be payable to the supplier under these conditions of sale;
1.9 The term "exchange goods" shall mean a part item or item of goods returned by a buyer as a condition of the supply of goods by the seller;
1.10 The term "exchange surcharge" shall mean the deposit paid by a buyer to secure goods subject to the return of exchange goods.
1.11 The terms "reconditioned" or "re-manufactured" shall mean the inspection evaluation of used or second hand goods followed by their consequential refurbishment, rebuilding and recommissioning being goods provided for the same by the buyer or otherwise obtained the same being refurbished rebuilt and recommissioned by the replacement of unserviceable components with new or serviceable components at the sellers option
1.12 The term "special order goods" shall mean goods either of an exchange reconditioned re-manufactured or new manufacture produced to a pattern specification or design supplied or otherwise produced or procured by the buyer
1.13 The term "second hand" shall mean goods previously fitted as original or replacement parts to one or more other vehicles other than that to which the same is supplied
2.1 These conditions of sale and the quotation supersede any other terms and conditions including any terms or conditions, or descriptions, or statements as to the delivery, quality or performance of the goods, or their suitability for any purpose appearing in any advertisements, catalogues, or other literature relating to the goods and override and exclude other terms and conditions, descriptions and statements as to quality and performance or suitability of the goods stipulated or referred to by the buyer whether in the purchase order or otherwise;
2.2 No representative or agent of the seller has any authority to agree any terms or make any representations that are inconsistent with these conditions or the quotation. The seller will not be bound by any statements made by any person purporting to act on the seller's behalf as to these conditions or the quotation or any statements as to the delivery, quality, performance or suitability of the goods unless any such statement is specifically confirmed in writing by a duly authorised officer of the seller and annexed to the contract.
3. SPECIFICATION AND DESCRIPTION SAMPLE AND STANDARD
3.1 The description of the goods given in any advertisement, catalogue or other literature is for information purposes only and does not constitute a term of the contract;
3.2 The seller undertakes that the goods will conform with:
3.2.1 The provisions of the quotation (except in minor respects which do not materially affect the usage of the goods). The seller reserves the right to change and improve the specification of the goods in line with its policy of progressive development provided that any substituted materials shall be of the same or better quality than those specified in the quotation and that any such change will not materially affect the usage of the goods; 3.2.2 The seller's normal standards of manufacture;
3.2.3 The requirements of any legislation in force at the time of the submission of the quotation.
3.2.4 Due to the numerous original manufacturers specifications and model types produced by the original manufacturer of the motor vehicles for which goods are supplied by the seller and the age service and component history of the buyers motor vehicles to which the seller cannot and does not have access the seller shall not be responsible for the supply of goods (other than special order goods) which correspond with the goods as specified by the buyer.
3.2.5 The buyer shall be solely responsible for ensuring that the goods are of a type specification and construction suitable for the buyer's motor vehicles. In this respect the buyer must ascertain from a suitably qualified motor engineer that the goods as supplied shall be and in fact are suitable for the motor vehicles of the buyer (and /or any third party) before they are fitted to the motor vehicles. In this respect the engineer shall be required as a condition precedent to ensure that the goods as fitted shall ensure the motor vehicle shall after fitment of the same fully confirm to the applicable Ministry of Transport standard ("M.O.T.) as if the same had immediately thereafter undergone a full M.O.T Test and in the case of a supply of goods outside the United Kingdom to the relevant national motor vehicle safety standard applicable to that vehicle in the Country to which the goods were supplied and in which the vehicle is registered for use on public roads
3.2.6 Neither the seller nor the manufacturer of the goods shall be liable for any loss damage or injury directly or consequential arising from the sellers failure to comply with clauses 3.2.4. Or 3.2.5 save to the extent implied by Clause 2 (1) of the Unfair Contract Terms Act 1997.
4. QUALITY AND FITNESS FOR PURPOSE
4.1 The goods shall be in accordance with the quality specified in the seller's quotation and if no quality is specified, with the normal industrial quality for the type of goods in question at the contract price; 4.2 If the buyer has specified expressly that the goods shall be suitable for a particular purpose and the seller has agreed in the quotation expressly to supply goods suitable for that purpose, then the goods shall be so suitable within the limits specified by the supplier in his quotation except in minor respects which do not materially affect the purpose for which the goods have been supplied;
4.3 Where the seller agrees with the buyer to provide re-conditioned or re-manufactured items or goods either by way of the return of exchange goods by the buyer or by reconditioned or re-manufactured goods then the buyer agrees specifically to accept reconditioned or re-manufactured items rather than items of a new production or construction. Accordingly the seller warrants the goods shall be suitable for their particular use as reconditioned or re-manufactured items
5.1 The seller undertakes as a warranty and not as a condition of the contract that a firm delivery date or period has been stated in the quotation that the seller will deliver the goods by such date or within such period or any extended date or period as provided for under clause 11;
5.2 The seller shall deliver the goods to the delivery point stated in the quotation carriage paid, provided that if in accordance with the quotation the goods are to be given to a carrier for onward transmission to the buyer, then delivery of the goods to the carrier shall constitute delivery to the buyer.
6. PASSING OF PROPERTY
6.1 The property in the goods shall not pass to the buyer until payment has been received by the seller in full for the goods and for any other goods supplied by the seller or any associated company of the seller to the buyer;
6.2 For the purpose of this clause the buyer undertakes that until the buyer has made payment in accordance with sub-clause 6.1: -
6.2.1 not to remove, deface or cover up any identification marks on the goods or marks indicating that the goods are the property of the seller;
6.2.2 to store the goods separately from those belonging to the buyer or others;
6.2.3 to allow the seller unrestricted access to the buyer's Works or other place where the goods are stored for the purpose of removal of the goods.
7. PASSING OF RISK
7.1 The risk in the goods shall pass to the buyer on delivery as defined in clause 5 above;
7.2 If delivery is to be made to a carrier for onward transmission to the buyer, then unless otherwise instructed by the buyer, the seller will arrange for the benefit of the buyer, insurance of the goods on the basis of carrier's risk. The premium for such insurance shall be added to the contract price and paid for by the buyer
8. CONTRACT PRICE
8.1 The price stated in the quotation is based on the cost of production as at the date of the quotation. If because of any rise or fall in the cost of labour, materials, fuel or transport the cost to the seller of performing the contract shall be increased or reduced, the amount of such increase or reduction shall be added to or deducted from the contract price. No account shall be taken of any increase in cost which has been incurred by the seller because of any default by the seller; 8.2 If after the date of the quotation the cost to the seller of performing the contract is increased or reduced by reason of any change in the laws or regulations affecting the seller in the performance of the contract, including any changes in taxes, levies or National Insurance Contributions payable by the seller in respect of his workforce but excluding income tax, then the amount of such increase or reduction shall be added to or deducted from the contract price;
8.3 Where goods are purchased on an exchange basis the buyer shall pay an exchange surcharge calculated on placement of the order by the buyer and shall provide the exchange goods within 30 days of supply of the goods. Failure to return the exchange goods within 30 days shall give rises to the forfeiture of the exchange surcharge and in addition thereto a sum of £150.00 by way of compensation for failure to provide the exchange goods
9. PAYMENT TERMS
9.1 The seller shall be entitled to invoice for the goods upon placing an order by the buyer for the said goods but may at the seller's option invoice for the goods on delivery; 9.2 Where an order is placed for special order items either payment in full at the time the order is placed or payment of the equivalent exchange surcharge (at the sellers option) shall be made at the time the order is placed; 9.3 Where the seller shall have agreed with the buyer to invoice for goods on delivery then the buyer shall pay the seller's invoice within 28 days of receipt; 9.4 If the buyer fails to pay the seller's invoice on the due date then the seller shall be entitled to: 9.4.1 charge interest on the outstanding amount at the rate of 8% above the base rate of the Bank of England ruling at the time when payment became due under clause 9.2 above accruing daily;
9.4.2 decline to deliver any further goods to be supplied under this contract or any other purchase order placed by the buyer with the seller until payment has been received in full of any amounts outstanding, and payment has been made by the buyer in advance for any goods not yet delivered without thereby incurring any liability whatsoever to the buyer;
9.4.3 terminate the contract if the delay in payment exceeds 30 days.
9.5 Value Added Tax (VAT) where applicable shall be added to the contract price as a strictly net extra charge.
9.6 Where an order is accepted by telephone facsimile e-mail or by post or any other method other than personal attendance at the premises of the seller and payment by credit or debit card is offered and accepted or any other method of payment other than cash or cheque drawn on a bank in the United Kingdom on an account in the name of the buyer then the buyer irrevocably authorises the seller to forthwith at the time of placing of the order to debit the said credit or debit card for which details have been provided by the buyer.
10.1 The buyer shall inspect the goods immediately on their receipt and shall be deemed to have accepted the goods unless within 24 hours after their receipt the buyer shall have notified the seller that the goods are rejected as having been found not to be in accordance with the contract;
10.2 If the buyer does so notify the seller to this effect then the seller shall be given the opportunity to inspect the goods, and if reasonably satisfied that the goods are not in accordance with the contract for a reason for which the seller is responsible, shall at its option repair, replace or provide a full refund of the purchase price of such goods;
10.3 At the seller's request the buyer shall return the goods which it considers not to be in accordance with the contract to the seller at initially the buyers expense and if the goods are in fact found to be defective for reasons other than the fault of the buyer his agents engineers or subcontractors the cost of return shall be repaid to the buyer at the seller's standard carriage rate to the buyer in addition to any other repayment refund or replacement by the seller. If the goods shall be found to be defective then the seller shall be responsible for all costs involved in the repair or replacement of the goods and for their re-delivery to the buyer save that at the sellers option a full refund plus carriage as above may be substituted for repair or replacement goods.
10.4 The seller shall within a reasonable time repair replace or at the sellers option provide a refund under clause 10.3
10.5 The obligations of the seller under sub-clauses 10.2, 10.3 and 10.4 above shall be in full satisfaction of the seller's liability in respect of such goods, and the buyer shall not be entitled to claim damages for breach by the seller of any of its obligations whether under the contract or otherwise and whether for delay or performance.
11. DELAYED DELIVERY
If the seller shall have included in the quotation a firm date or period for delivery then the following provisions of this clause shall take effect. Otherwise any date or period for delivery shall be considered as indicative only and not contractually binding on the seller.
11.1 The date for delivery shall only constitute a warranty and not a condition of the contract, time shall not be considered to be of the essence and the buyer shall not have the right to reject the goods or terminate the contract by reason of any delay in delivery;
11.2 If the seller is delayed in the performance of the contract by any act or default of the buyer, or any industrial dispute or any circumstance beyond the seller's reasonable control, then the date for delivery shall be extended by such period as may be reasonable;
11.3 If the seller shall fail to deliver the goods by the date for delivery or any extended date under sub-clause 2 of this clause, then the seller shall pay to the buyer as liquidated damages such sum as may be specified in the quotation, or if no sum is so specified, at the rate of 0.5% of the value of the goods delayed for each week of delay up to a maximum of 5% of the contract price of the goods delayed, unless it can reasonably be concluded from the circumstances that the buyer has suffered no loss;
11.4 The payment by the seller of such liquidated damages shall be in full satisfaction of the seller's liability for delay and to the exclusion of any other remedy of the buyer for the seller's delay
12. DEFECTS LIABILITY
12.1 The seller shall repair replace or refund in full the purchase price plus carriage in accordance with clause10.3, (at the seller's option) any of the goods which are, or which become defective, in the case of all new goods (with the exception of chrome wheel nuts) within 12 months in the case of reconditioned or remanufactured goods within 6 months and in the case of second hand goods and chrome wheel nuts within 3 months from the delivery of the goods due to faulty workmanship, materials or faulty design, provided that the buyer shall have notified the seller in writing of such defect and have given the seller a reasonable opportunity to inspect the defective goods;
12.2 All expenses incurred by the seller in connection with the repair or replacement of the defective goods, including all costs of transportation, shall be paid by the seller;
12.3 The seller's liability in respect of defects in the goods shall be limited to those stated in this clause and subject to Clause 2 (1) of the Unfair Contract Terms Act 1997 and in respect of re-manufactured goods as specified in Clause 4.3, the seller shall not be liable whether in contact or in tort, including but not limited to negligence, or by reason of breach of statutory duty or otherwise, for any damage or loss whatsoever suffered by the buyer arising out of or attributable to such defects.
13. LIMITATION OF LIABILITY
13.1 The obligations and liabilities of the seller in respect of the description of the goods, the quality of the goods or their fitness for purpose implied by common law or by statute or otherwise are hereby excluded from the contract;
13.2 Except as provided for under clause 11 above neither party shall be liable to the other for any indirect or consequential loss or damage, loss of profit, loss of use or production or of contracts which the other may suffer arising out of any breach by a party of its obligations under the contract and whether the same be due to the negligence of that party or not.
14. RE-MANUFACTURED OR RECONDITIONED GOODS
14.1 The goods supplied by the seller to the buyer may be re-manufactured or reconditioned where the seller has expressly made the same known to the buyer prior to the buyer placing an order for the said goods;
14.2 Where re-manufactured or reconditioned goods are provided on an exchange basis only then the buyer shall provide: -
(a) An exchange deposit calculated in accordance with Clause 8.3 and
(b) Return of the exchange goods for reconditioning within the period specified in Clause 8.3;
14.3 If the buyer shall fail to provide the exchange goods within the period specified in Clause 8.3 then the exchange surcharge shall be retained by the seller and the buyer shall be liable to compensate the seller for the failure to return the exchange goods as more particularly provided in Clause 8.3;
14.3 For the avoidance of doubt the provisions contained in this Clause are in addition to any other contractual rights which the seller may have against the buyer under the provisions of these terms and conditions or generally.
15. FORCE MAJEURE
Neither party shall be liable to the other for its failure to perform any of its obligations under the contract to the extent that such failure is a result of circumstances beyond its reasonable control, provided that the other party is notified in writing of such circumstances by the party affected as soon as they become aware of their occurrence.
16. TRADEMARKS etc.
16.1 The buyer shall not make any express or implied representations or statements or otherwise deal with the goods in such a way as to infringe any trademark, trade name, pattern, copyright or other intellectual property in the goods whether belonging to the seller or other supplier of such goods and shall indemnify the seller in respect of any claim against it for any infringement of any such trademark, trade name pattern, copyright or intellectual property howsoever arising.
16.2 All copyright contained in the seller's artwork, drawings, specifications, catalogues, presentational or promotional material remains the property of the seller which reserves all rights.
The buyer shall not be entitled to exercise any right of set-off or counter-claim.18. LAW
The contract shall in all respects be governed by and interpreted in accordance with English law.
19. DISPUTE RESOLUTION
If any dispute or difference shall arise between the parties in connection with or arising out of the contact which cannot be settled amicably between the parties, then either party shall give to the other 14 days' written notice to such effect and such dispute or difference shall be referred to a single arbitrator agreed between the parties within 14 days of the date of the said written notice, or in default of agreement, as may be nominated by the President for the time being of the Chartered Institute of Arbitrators.