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TERMS AND CONDITIONS OF SALE- FAI AUTOMOTIVE PLC
1.1 In these Conditions (unless the context otherwise requires) the following expressions shall have the following meanings:
“COMPANY“: FAI Automotive plc (Company Number 953723) whose registered office is at the Chiltern Trading Estate, Grovebury Road Leighton Buzzard LU7 4TU;
“CUSTOMER“: The person, firm, company or authority purchasing the Goods from the Company;
“CONDITIONS“: Means the standard terms and conditions set out in this document which shall govern all the Contracts between the Company and the Customer to the exclusion of any other terms and conditions;
“CONTRACT”: The Contract for the sale and purchase of the Goods between the Company and the Customer;
“GOODS“: The Goods (including any part shipment of an order) which the Company is to supply in accordance with the Contract.
1.2 The clause headings used in these Conditions are for ease of reference only and shall not affect the construction itself. Where the context admits, references to the singular shall include the plural and vice versa. Any reference to statutory provisions or subordinate legislation shall be construed as reference to that provision as amended or re-enacted from time to time.
ACCEPTANCE OF ORDER
2.1 All orders are accepted and all Goods are supplied on the basis that they are trade sales and that they are supplied subject to these Conditions.
2.2 The ordering of Goods by the Customer shall be considered an acknowledgement that the Customer has accepted that all Goods supplied by the Company are sold subject to these Conditions a copy of which has been provided to the Customer prior to the date hereof.
3.1 Goods Supplied within the United Kingdom: All invoices are payable in full in pounds sterling not later than the twentieth day of the month following the month in which the invoice was issued, and invoices may be issued at any time after the Goods are ready for despatch or collection from the Company’s premises. In the event that the Company agrees to provide Goods to the Customer pending the opening of a credit account, all such Goods must be paid for in advance or by cash on delivery.
3.2 Goods Supplied outside the United Kingdom: The method and timing of payment shall be that stated in writing by the Company.
3.3 If the Customer does not make full payment on the due date then the Company reserves the right without prejudice to any other right or remedy, to take any or all of the following actions:
(i) charge interest whether before or after judgment at 4% over the base rate of National Westminster Bank PLC from time to time on any overdue accounts;
(ii) cancel the Contract or any rebate payment related thereto;
(iii) suspend all further deliveries of Goods to the Customer;
(iv) appropriate any payment received from the Customer to the Contract.
3.4 Extended payment terms or credit terms may be made available at the Company’s discretion and subject to such terms as the Company thinks fit. Such terms will only apply if agreed in writing by the Company.
3.5 the Company will at its discretion, accept the return of non-defective Goods for credit no later than 30 days from date of delivery. Goods must be returned carriage paid and credit given will be subject to deduction of a handling charge of 20% of the purchase price.
4.1 Unless otherwise expressly provided in writing all sales are Ex-Works (as such term is defined in Incoterms 2010) at the Company’s premises, notwithstanding that the Company may arrange for delivery. In the event that the Company arranges for delivery this shall be at the cost and risk of the Customer.
4.2 All allegations of non-delivery, whether in whole or in part of any consignment of Goods or of any discrepancies between the Goods ordered and those supplied and invoiced must be made by the Customer in writing to the Company within 10 days of the date of advice note or invoice or other notification of despatch, whichever shall be the shorter. Failure by the Customer to notify the Company as aforesaid shall be conclusive evidence that the Goods were supplied and delivered in accordance with the Contract.
4.3 Any delivery date stated in the Contract is intended as an estimate only; and the Company shall not be liable for any damages or losses arising out of any delivery otherwise than as so stated.
4.4 If the Customer refuses or fails to take delivery of the Goods or fails to take any action necessary on its part for delivery or shipment of the Goods, the Company shall (without limiting its other rights) be entitled to take all or any of the following action:
(i) terminate the Contract with immediate effect;
(ii) dispose of the Goods as the Company may determine;
(iii) recover from the Customer any loss and additional costs incurred as a result of such refusal or failure and in any event to retain any payment made prior to such refusal or failure
4.5 At the request of the Customer, the Company shall as agents for the Customer arrange for carriage and transport insurance to the destination specified in the Customers order on such terms as to carriage and insurance as the Company considers appropriate unless the Customer specifies otherwise, and the Company shall invoice the Customer all carriage and insurance costs incurred. Section 32(3) of the Sale Of Goods Act 1979 shall be deemed to be excluded hereby.
4.6 The Company may deliver the Goods in one or more instalments and each instalment shall be treated as a separate Contract. Failure by the Company to make any delivery or part delivery in accordance with the Contract or any claim by the Customer in respect of such delivery or part delivery shall not entitle the Customer to reject the balance of the Goods agreed to be purchased by the Customer.
4.7 All Goods shall be subject to reasonable commercial variation as to quantity other than where specifically agreed to the contrary by the Company in writing.
5.1 All quotations issued by the Customer are Ex-Works and exclusive of VAT which will be payable at the appropriate rate in addition where applicable. The Company reserves the right to vary its price list from time to time without prior notice and Goods will be invoiced to the Customer in accordance with the price list in effect at the date of despatch unless otherwise agreed by the Company in writing.
6.1 Whilst every effort is made to ensure the accuracy of the descriptions, illustrations and material contained in any catalogue, price list, brochure or leaflet, the descriptive matter represents the general nature of the items described therein, but does not form part of any order or Contract or amount to any representation or warranty. The Company reserves the right to modify specifications and prices published without prior notice.
6.2 Any manufacturers part numbers quoted in any literature produced by the Company are provided for Customer reference only.
6.3 Any errors or omissions in any documents or information provided by the Company shall be subject to correction without any liability on the part of the Company.
7.1 Notwithstanding the passing of risk in the Goods, title and property in the Goods shall remain with the Company until all sums owed by the Customer to the Company are paid for in full.
7.2 Until all sums owed by the Customer to the Company are paid for in full, the Customer will hold the Goods as the Company s fiduciary agent and bailee, and will keep the Goods separate from those of the Customer and third parties and properly stored, protected, insured and identified as the Company’s property.
7.3 The Customer may use or sell the Goods in the normal course of its business, but shall do so as agent for the Company and shall account to the Company for any proceeds of the sale or otherwise of the Goods, including insurance proceeds, and shall keep such proceeds in trust for the Company separately from any other money and always separately identifiable as the Company’s money. Any such proceeds of sale shall not be paid into an overdrawn bank account.
7.4 Upon receipt of the proceeds of sale, the Customer shall discharge the debt due to the Company in respect of the Goods and shall not use or deal with the proceeds of sale in any way whatsoever until all sums due to the Company have been discharged.
7.5 The Customer will be entitled to receive from the Company by way of commission the excess of the proceeds over the amount due to the Company.
7.6 The Customer may not pledge or in any way charge as security for indebtedness any of the Goods remaining the property of the Company, but if the Customer does so all sums owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) immediately become due and payable.
7.7 The Customer’s right to possession of the Goods will cease and all sums due to the Company will immediately become payable if:
(i) The Customer has not paid for the Goods in full by the expiry of any credit period allowed under this Contract; or
(ii) The Customer enters into liquidation or is declared bankrupt or makes any proposal to his creditors for composition or other voluntary arrangement; or
(iii) The Customer does or fails to do anything that would entitle an administrator or administrative receiver or receiver to take possession of any assets or would entitle any person to present a petition for the winding-up of the Customer; or
(iv) The Customer ceases, or threatens to cease, to carry on business; or
(v) The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer.
7.8 The customer grants the Company and its authorised representatives an irrevocable license to enter at any time any vehicles or premises owned or occupied by the Customer or in its possession for the purpose of repossessing and removing all or any part of any Goods the property in which has remained in the Company. The Customer and not the Company, shall be responsible for any costs of making such Goods available to the Company, removal and transport of any such Goods by the Company and any damage caused to vehicles or premises in such repossession and removal, being damaged it was not reasonably practical to avoid.
7.9 Even though the property in the Goods may not have passed to the Customer, the Company will be entitled to bring an action against the Customer for the price of the Goods in the event of non-payment by the due date as if property in the Goods had already passed to the Customer, and the Company will have the right by notice in writing to the Customer at any time after the agreed delivery date to pass the property in the Goods to the Customer as from the date of such notice.
8.1 Subject as provided below, the Company warrants all Goods supplied by it to be free from defects in material and workmanship for a period which is the lesser of twenty-four months from collection by or delivery to the Customer or its agent or 30,000 (50,000 km) miles use (verified to the satisfaction of the Company). The Company’s entire liability under such warranty shall be limited to replacing or issuing credit at its sole discretion, for any Goods which have been returned within 30 days of discovery of any defects by the Customer, carriage paid, to the Company and for which the Customer has completed a Company warranty claim form and labelled the Goods sufficiently.
8.2 All other conditions, warranties and representations, express or implied whether under Common Law, Statute or otherwise (including, without limitation any condition as to merchantability or fitness for any purpose) are hereby excluded so far as permitted by law. No addition thereto or variation shall apply unless specifically agreed in writing by the Company.
8.3 Any warranty claims submitted for engine components which rely on lubrication to operate must be accompanied by a 120ml oil sample from the affected engine.
8.4 The Company shall in any case, incur no liability under this warranty for:
(i) any Goods not returned in the time and manner set out above;
(ii) any Goods in which the alleged defect is found upon examination to have been caused in whole or in part by failure to follow manufacturer’s instructions, misuse, neglect, overload, unsuitable lubricant, improper installation or repair, alteration or accident;
(iii) any Goods which are used in any form of motor competition or for performance improvement;
(iv) any transport, installation, removal, labour or other consequential costs.
8.5 Save as herein expressly provided, the Company shall not be liable for any losses (including without limitation loss of profit) or direct or indirect special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever whether in Contract tort or otherwise of whatsoever nature or to whomsoever or howsoever caused, arising out of out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or through the use or resale of any of the Goods supplied by it.
8.6 Nothing in these Conditions shall be interpreted as excluding or restricting any legal liability of the Company from death or personal injury resulting from the negligence of the Company, its employees or agents, or restricting any of the Company’s legal obligations arising under Section 12 of the Sale of Goods Act 1979 or under the Consumer Protection Act 1987.
9.1 Any service, recommendation, suggestion or advice which may be offered by the Company in technical literature or in response to specification enquiry, is given in all good faith, but the Company shall not be liable for any loss or damage arising therefrom and it is for the Customer to satisfy itself as to the suitability of the Goods for its own particular purpose which it shall he deemed so as to have done.
10.1 The Company shall have no liability for any failure or delay in fulfilling any of its obligations to the extent that such fulfilment is prevented, delayed or rendered uneconomic due to any circumstances or event beyond the Company’s reasonable control, including without prejudice to the generality of the foregoing, any industrial action, failure of energy or water supply, or compliance with any order, regulation or request from any national or local authority.
10.2 If any deliveries by the Company are delayed due to any of the foregoing for three months or more the Company may, at its option exercisable by notice in writing to the Customer, either terminate the Contract or elect not to delivery any undelivered Goods without liability in either case on the part of the Company.
11.1 The rights of the Company shall not be prejudiced or restricted by any indulgence or forbearance extended to the Customer and no waiver of any breach shall operate as a waiver of any subsequent breach.
12.1 The contract shall be construed in accordance with English Law and shall be subject to the non-exclusive jurisdiction of the English Courts.
13.1 Any notice hereunder shall be deemed to have been given if delivered by hand or sent by pre-paid first-class post or facsimile (confirmed by notice by post) to the party concerned at its last known address and deemed to have been received on the date of despatch, if delivered by hand, or sent by facsimile, and on the third day after posting if sent by post.
14.1 The Contracts (Rights of Third Parties) Act 1999 does not apply so as to give to a person who is not a party to any Contract a right under it.
15.1 If a provision of these Conditions is or becomes illegal or unenforceable, the remaining provisions and procedures shall not be affected.