In these conditions the following words have the following meanings unless the context requires otherwise: “Contract” means any contract between You and Us incorporating these conditions for the sale of Products and/or the provision of the Services; “Guarantee” means the guarantee in clause 10.1; “Liability” means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities; “Products” means any products and/or goods ordered from Us by You or supplied by Us to You and/or any goods, products and/or materials which are to be utilised in the performance of the Services and in which title is intended to pass to You once the Services have been completed; “Services” means the services and/or work to be performed by Us for You; “We, Us, Our” means Totalkare Heavy Duty Workshop Solutions Limited; “You, Your, Yourself” means the person whose order for Products and/or Services is accepted by Us.
2. ORDERS AND BASIS OF CONTRACT
2.1 These conditions shall govern the agreement between You and Us to the exclusion of any other terms or conditions.
2.2 Orders placed by You leading to a Contract which is not expressed to be subject to these conditions shall still be subject to them.
2.3 No variation to these conditions shall be binding on Us unless contained in Our quotation or agreed in writing between You and one of Our Directors.
2.4 No oral warranties or representations shall bind Us (unless given by one of Our Directors). You acknowledge that You do not rely on any representation and/or warranty that has not been made in accordance with these conditions.
2.5 “Quotations” are not binding or capable of acceptance and are estimates only.
2.6 You shall be responsible for the accuracy of an order and for giving Us any information necessary for Us to perform the Contract.
2.7 The Contract between You and Us shall come into effect on Our written acceptance of Your order.
3.1 Dates for delivery and/or performance are estimates only.. Time is not of the essence in relation to such dates. They are also subject to any matter beyond Our reasonable control.
3.2 We will use Our reasonable commercial endeavours to ensure delivery and/or performance on the dates specified. You shall have no right to reject Products and/or Services and shall have no right to rescind for late delivery and/or performance unless the due date for delivery and/or performance has passed and You have served on Us a written notice requiring the Contract to be performed and giving Us not less than 14 days in which to do so and the notice has not been complied with.
3.3 We shall not be required to fulfil orders in the sequence in which they are placed.
3.4 If You refuse to take delivery of any Products and/or to allow performance of the Services then We shall be entitled to withhold delivery and/or performance of any other Products and/or Services and to treat this Contract as repudiated by You and shall have the right to rescind this Contract.
3.5 If the parties agree that the Products are to be collected from Our premises then You shall collect the Products within 5 working days of being notified that the Products are ready for collection. If the Products are not collected by You within the specified period We may despatch the Products to You at Your expense and risk and/or store the Products at Your expense and risk until despatch and/or collection.
3.6 Where delivery of the Products and/or performance of the Services is postponed at Your request then We may request that You pay all Our costs and expenses incurred as a result including reasonable charges for storage, transportation and insurance. In addition You shall be obliged to pay for the Products and/or Services as if delivery and/or performance had not been postponed.
4.1 The price of the Products and/or the Services shall be as specified on Our order acknowledgement. You agree that where we are supplying Services under a Service Contract, we may review and increase the charges set out in such Service Contract, provided that such charges cannot be increased more than once in any 12 month period. We shall give you written notice of any such increase at least 14 days before the proposed date of that increase.
4.2 Except as otherwise stated, prices are ex-works, and You shall be liable to pay Our charges (if any) for transport, packaging and insurance. Our prices are exclusive of any applicable VAT for which You shall additionally be liable.
4.3 Unless otherwise agreed in writing Our terms of payment are 30 days from date of invoice or proforma or as specified on the order acknowledgement / quotation.
4.4 If You fail to make any payment in full on the due date We may charge You any reasonable additional administration costs and/or interest (both before and after judgment) on the amount unpaid at the rate of 4% above the base rate from time to time of Our bank compounded with monthly interest.
4.5 A late payment penalty, will be incurred for any direct debit failures due to insufficient funds being available on the date that the direct debit is due to be taken.
4.6 Any monies received by Us from You may be applied by Us at Our option against any additional administrative costs and/or interest charged prior to application against any principal sums due from You against which it may be applied in any order.
4.7 We shall be entitled to invoice each delivery of Products and/or stage of the Services separately.
4.8 You shall pay all sums due to Us under this Contract without any set-off, deduction, counterclaim and/or any other withholding of monies.
4.9 Payment shall not be deemed to be made until We have received either cash or cleared funds in respect of the full amount outstanding under this or any other contract with You. If payment in full is not made to Us when due then We may withhold or suspend future or current deliveries of the Products and/or performance of the Services and delivery and/or performance under any other agreement with You.
4.10 We shall be entitled to render an invoice to You any time on or after delivery of the Products.
4.11 If any Services are cancelled or this Contract terminated or delivery and/or performance is suspended before completion of the Services We shall be entitled to be paid on a quantum meruit basis for that part of the Services performed.
5.1 You may cancel delivery of the Products and/or performance of the Services at any time up to 5 days before the due date for despatch and/or performance as appropriate, on condition that We shall have no Liability to You in relation to any Contract cancelled in accordance with this clause.
5.2 If You purport to cancel this Contract later than the above time limits and/or refuse to accept delivery of ordered Products and/or performance of ordered Services You will indemnify and keep Us indemnified against any and all lost profits, costs (including increased administration costs and legal costs on a full indemnity basis), expenses, damages and any other loss and/or Liability suffered by Us as a result.
6.1 You are responsible for checking the quotation and satisfying Yourself that any specification given is accurate and adequate for the Products and/or Services.
6.2 We shall have no Liability for errors in any specification or details supplied by You.
6.3 Details and/or specifications in brochures and price lists produced by Us are intended as a guide only and only give a general approximation of the Products and/or Services.
6.4 We reserve the right to make changes to the specification of the Products and/or Services as required from time to time by law, applicable safety requirements or manufacturing requirements provided that they do not have a material adverse effect on the quality and/or performance of the Products and/or the Services.
7. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
7.1 You shall not make any modification to the Products or their packaging, nor alter, remove, or tamper with any trade marks used on or in relation to the Products and/or Services.
7.2 All intellectual property rights (including without limitation all patents, copyright, design rights (whether registered or unregistered), trade marks (whether registered or unregistered) skill and/or know-how and other similar rights, whether existing now and/or in the future, wherever existing in the world together with the right to apply for protection of the same) in the Products, their packaging and/or arising from the Services shall be owned by Us absolutely.
7.3 You agree that, You will do all acts and/or things and execute all documents and/or deeds which are necessary or desirable to give effect to clause 7.2 above and/or to assist Us in the application, registration, renewal and/or protection of such intellectual property rights.
8. PROPERTY AND RISK
8.1 Risk in the Products shall pass to You at the time of delivery. Delivery shall be deemed to occur:-
8.1.1 at the time when the Products arrive at the place of delivery if We deliver the Products by Our own transport or We arrange transport in accordance with a specific contractual obligation; or
8.1.2 when the Products leave Our premises; or
8.1.3 after the expiration of 5 working days after You have been notified of it, if the Products are available for collection from Us in accordance with clause 3.5.
8.2 We shall retain title and ownership of the Products until We have received payment in accordance with clause 4.8 above
8.3 Until title in the Products has passed to You You shall keep the Products insured for the price at which the Products were sold to You against all normal risks and shall procure that We are named on such policy of insurance as loss payee. Any monies received from You by Us in accordance with this clause shall not discharge Your liability to pay the price for the goods plus interest accrued in accordance with clause 4.4 but shall be set off against any such liability.
9.1 If You:-
9.1.1 fail to make any payment to Us when due;
9.1.2 breach the terms of this Contract and, if the breach is capable of remedy, have not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;
9.1.3 persistently breach any one or more terms of this Contract;
9.1.4 pledge or charge any Products which remain Our property, or cease or threaten to cease to carry on business, or propose to compound with Your creditors, apply for an interim order under Section 252 Insolvency Act 1986 or have a Bankruptcy Petition presented against You, enter into voluntary or compulsory liquidation, have a receiver, administrator or administrative receiver appointed over all or any of Your assets, or take or suffer any similar action in any jurisdiction;
9.1.5 appear to Us due to Your credit rating to be financially inadequate to meet Your obligations under the Contract;
9.1.6 appear reasonably to Us to be about to suffer any of the above events; then We shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 9.2 below.
9.2 If any of the events set out in clause 9.1 above occurs in relation to You then We may:-
9.2.1 enter, without prior notice, any of Your premises (or premises of third parties with their consent) where Products owned by Us may be and repossess and dispose of or sell any Products found which are owned by Us so as to discharge any sums due to Us under this Contract or any other agreement with You;
9.2.2 require You not to re-sell or part with the possession of any Products owned by Us until You have paid in full all sums due to Us under this Contract or any other agreement with You;
9.2.3 withhold delivery of any undelivered Products and stop any Products in transit;
9.2.4 withhold the performance of any Services and cease any Services in progress;
9.2.5 cancel, terminate and/or suspend without Liability to You any agreement with You; and/or
9.2.6 all monies owed by You to Us shall forthwith become due and payable.
9.3 We shall have a lien over all property or goods belonging to You which may be in Our possession in respect of all sums due from You to Us.
9.4 Upon the termination of the Contract for any reason if any monies due to Us from You have not been paid within 14 days of such termination We may sell any property or goods over which We have a lien in accordance with clause
9.3 above (and You agree that We may give good title for such property and/or goods).
10.1 We guarantee that the Products and/or Services will be free from defects in materials and/or workmanship for the period agreed in writing from:-
10.1.1 in the case of Services the date of completion of the performance of the Services; and/or
10.1.2 in the case of Products the date of delivery of the Products to You.
10.2 The Guarantee is given by Us subject to the following conditions:-
10.2.1 We shall be under no Liability in respect of any defect in the Products and/or Services arising from any drawing, design or specification supplied by You;
10.2.2 We shall be under no Liability in respect of any faults arising after risk in the Products has passed which is caused by any subsequent mechanical, chemical, electrolytic or other damage not due to a defect in the Products and/or Services as appropriate; and/or
10.2.3 We shall be under no Liability in respect of any faults or defects caused by wilful damage, abnormal working conditions, failure to follow Our instructions, misuse, alteration or repair of Products and/or Services without Our approval, improper maintenance or negligence on Your part or a third party.
10.3 If any Products and/or Services prove to be defective and are covered by the Guarantee then We shall at Our sole option either repair or replace or re-perform such Products and/or Services. Provided We comply with this clause the repair, replacement and/or re-performance shall be Your sole remedy in respect of claims under the Guarantee. Any work carried out by Us which is not covered by the Guarantee will be charged for.
10.4 We shall have no Liability to You under the Guarantee unless any defect is notified to Us within 14 working days of the defect becoming apparent or suspected or when it should reasonably have become apparent to or suspected by You. The Guarantee will not apply if You have not paid in full for the relevant Products and/or Services on the due date for payment.
11. REPAIRS AND REPLACEMENTS
11.1 We may either refund the price, repair, replace free of charge or re-perform any defective Products and/or Services where the defect is apparent on inspection provided that the defect is notified to Us within 14 working days of delivery of such Products or performance of the Services.
11.2 We shall have the right, upon Our request and where reasonable, to inspect the subject-matter of any allegedly defective Services at a mutually convenient time, and We will not have any Liability for defective Services until We have been allowed to make such inspection.
11.3 We may at Our sole discretion replace, repair free of charge, re-perform or refund the price of defective Products and/or Services which are not notified to Us within the specified time limit where in Our opinion the defect would not have been ascertainable on inspection and has been notified to Us as soon as reasonably practicable.
11.4 We may either refund the price of or replace free of charge any Products missing from a delivery of Products provided We are notified within 5 working days of delivery or, in the event of total non-delivery, We are notified within 5 working days of receipt of the invoice by You.
12. LIMITATIONS ON LIABILITY
12.1 Nothing in these Conditions shall limit or exclude Our liability for:
12.1.1 death or personal injury caused by Our negligence;
12.1.2 fraud or fraudulent misrepresentation;
12.1.3 any other matter where liability cannot be excluded or limited by law.
12.2 Subject to clause 12.1 We shall under no circumstances whatever be liable to You whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
12.2.1 any loss of profits, sales, business, revenue or goodwill (whether any of the foregoing are direct or indirect loss); and
12.2.2 any indirect, special or consequential loss.
12.3 Subject to clauses 12.1 and 12.2 our total liability to You in respect of all other claims arising under or in connection with a Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall subject to the proviso of this clause not exceed £500,000 provided always that to the extent that any of our Liability to You is met by any insurance of Ours then Our liability shall be extended to the extent that such liability is met by such insurance.
12.4 Nothing in these Conditions shall detract from your duty to mitigate your loss.
12.5 All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
13.1 You agree to indemnify and keep indemnified Us against any and all losses, proceedings, lost profits, damages, awards, expenses, costs (including increased administration costs and legal costs on a full indemnity basis), claims, actions and any other losses and/or liabilities suffered by Us and arising from or due to any breach of contract, any tortious act and/or omission and/or any breach of statutory duty by You.
13.2 No waiver by Us of any breach of this Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision. If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
13.3 Either party shall not be liable to the other for any delay in performance of this Contract to the extent that such delayis due to any events outside the affected party’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, subcontractor delays, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions, national emergencies and any other similar events. If a party is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
13.4 You shall not assign Your interest in the Contract (or any part) without Our written consent.
13.5 All third party rights are excluded and no third party shall have any right to enforce this Contract. This shall not apply to members of Our group who shall, subject to Our consent, have the right to enforce this Contract as if they were Us. Any right of a third party to enforce this Contract may be varied and/or extinguished by agreement between the parties to this Contract without the consent of such third party.
13.6 Any dispute arising out of or in connection with the Contract shall in the first instance be referred to the arbitration of a single arbitrator appointed by agreement between the parties or, in default of agreement, nominated on the application of either party by the President for the time being of The Law Society. This Agreement shall be governed by and interpreted in all respects in accordance with English law and where any dispute is not resolved by arbitration the parties agree to submit to the non-exclusive jurisdiction of the English courts.