| 1 |
DEFINITIONS |
| 1.1 |
“Us/We/Unipart Leisure/Marine/Our/Seller" shall mean Unipart Leisure and Marine
Limited (registered number 00631916)” (“Unipart Leisure/Marine”) whose registered
office is situated at Unipart House, Cowley, Oxford, OX4 2PG. |
| 1.2 |
“You/Buyer” shall mean the person, firm or company who places an order with
Us. |
| 1.3 |
“Goods” shall mean the goods and/or services to be supplied by Us as identified
on the Advice Note shipped with Your Goods. |
| 1.4 |
“Price List” shall mean Unipart Leisure/Marine price lists published from time
to time. |
| 1.5 |
“Conditions” shall mean the commercial trading terms and conditions as set out
within this document; |
| 1.6 |
“Contract” shall mean the contract between Us and You consisting of Your original
order, any Order Acknowledgement, Advice Note and the Conditions. “Delivery Date”
shall mean the date or period for delivery, if any, as stated in the Order Acknowledgement
which may be issued by Us to You. |
| 1.7 |
“Order Acknowledgement” shall mean the order confirmation documentation, which
may be issued by Us toYou. |
| 1.8 |
“Ordered Goods" means the Goods which are the subject of an Order; |
| 1.9 |
“Price” shall mean the sum stated to be paid by You to Unipart Leisure/Marine
for the supply of Goods together with such other sums as may be payable to Us under
these Conditions. |
| 1.10 |
“Associate” means any employee, agent or independent contractor of either party
to this Contract. |
| 1.11 |
“Authorised Representative” means, the officer of either Party named in the
Contract authorised to sign any variations to the Contract. |
| 1.12 |
“VAT” shall mean Value Added Tax and is chargeable in addition to the prices
listed in the Price List. |
| 1.13 |
“Returns Request Form” shall mean the Unipart Leisure/Marine form listing all
goods advised by the customer for return. |
| 1.14 |
“Safety and Environmental legislation” shall mean any governmental and/or quasi-governmental
legislation as such impacts upon legislative issues concerning the environment and/or
the safety of individuals. |
| 1.15 |
"Insolvency Event" means: |
| a) |
being deemed or admitting to being unable to pay its debts within the meaning
of section 123 Insolvency Act 1986 ("IA 86") (but for this purpose ignoring the
words "if it is proved to the satisfaction of the court that" in section 123(1)(e)
and 123(2) IA 86); or |
| b) |
commencing negotiations by reason of its financial difficulty with any of its
creditors with a view to entering into or proposing to enter into any composition,
compromise, moratorium, scheme or other similar arrangement (an "Arrangement") with
it or them (whether or not under IA 86) or otherwise entering into or becoming subject
to an Arrangement by reason of its financial difficulty; or |
| c) |
suspending or threatening to suspend payment of all or of its debts; or |
| d) |
taking, or having taken against it, any steps to commence its winding up or dissolution;
or |
e) |
taking, or having taken against it, any steps to appoint a court appointed or
other receiver or receiver and manager, administrator, administrative receiver,
or similar officer to it or over all or any of its property, assets or undertaking
(including its revenues) or any person holding security over the same taking possession
of all or any of its property, assets or undertaking (including its revenues); or |
| f) |
becoming subject to any equivalent or similar event, finding or circumstance,
or taking or having taken against it or in relation to it or all or any of its assets
any equivalent or similar step, action, event, finding, circumstance or proceedings
to those already mentioned in this definition in any jurisdiction (whether in England,
Wales or elsewhere). |
| |
|
| 2 |
GENERAL |
| 2.1 |
The Contract will be upon these Conditions which supersede all other terms and
conditions including but not limited to any 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 the quality and performance or suitability of the Goods stipulated or referred
to by You whether in the Order Acknowledgement, Advice Note or otherwise. |
| 2.2 |
No representative or agent of Unipart Leisure/Marine has any authority to agree
any terms or make any representations that are inconsistent with these Conditions.
We will not be bound by any statements made by any person purporting to act on our
behalf as to these Conditions 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 Unipart Leisure/Marine and annexed to
the Contract. |
| 2.3 |
If You place an order for delivery of Goods this shall (without prejudice to
Clause 20 or any other matter in which acceptance of these Conditions may be evidenced)
be deemed to constitute unqualified acceptance of these Conditions. |
| 2.4 |
Any notice required to be served pursuant to these conditions shall be served
as follows: |
| 2.4.1 |
to Us - Unipart Leisure and Marine Limited, Unipart House, Cowley, Oxford, OX4 2PG. |
| 2.4.2 |
to You - to such address as You may notify to Us of or in default of notification
to the address from which the Goods are or were ordered or if You are a company,
at our option to Your registered office. |
| |
|
| 3 |
TITLE IN PROPERTY |
| 3.1 |
Ownership of the Ordered Goods shall not pass to the Buyer until the Seller
has received in full (in cash or cleared funds) all sums due to it in respect of
the Ordered Goods. |
| 3.2 |
Until ownership of the Ordered Goods has passed to the Buyer, the Buyer must: |
| 3.2.1 |
store the Goods(at no cost to the Seller) separately from all other goods
of the Buyer or any third party in such a way that they remain readily identifiable
as the Seller's property and notify the Seller of the location(s) at which the Ordered
Goods are stored; |
| 3.2.2 |
not destroy, deface, obscure or remove any identifying mark on or relating
to the Goods or their packaging; and |
| 3.2.3 |
if any Ordered Goods are sold by the Buyer before all sums due to the Seller
in respect of those Ordered Goods or on any other account are paid by the Buyer
to the Seller the sale by the Buyer shall, as between the Buyer and the Seller but
not so far as concerns any third party, be deemed to be made by the Buyer solely
on behalf of and for the account of the Seller and without in any way derogating
from or adversely affecting the general application and force in every other respect
whatsoever of Condition 3.1 above and the Buyer shall hold the entire sale proceeds
as nominee for and to the order of the Seller in which shall be vested all title
thereto and interests therein. |
| 3.3 |
In determining which Ordered Goods have passed into the ownership of the Buyer
it shall be conclusively presumed in the absence of any written agreement between
the Seller and the Buyer to the contrary that the Buyer has used Ordered Goods supplied
by the Seller on the basis that the Ordered Goods first supplied by the Seller shall
have been first used by the Buyer. |
| 3.4 |
The Buyer's right to possession of the Ordered Goods shall terminate immediately
if the Seller reasonably believes that the Buyer will not make payment for the Goods
or that the Seller's position will be prejudiced if it fails to exercise a right
to possession of the Ordered Goods (including where the Buyer ceases or threatens
to cease business in the normal course) and notifies the Buyer accordingly. |
| 3.5 |
Without prejudice to the generality of Condition 3.1, the Buyer's right to possession
of the Ordered Goods shall terminate immediately if: |
| 3.5.1 |
the Buyer or a member of the group of companies of which the Buyer is a member
suffers an Insolvency Event; or |
| 3.5.2 |
the Buyer encumbers or in any way charges any of the Ordered Goods or makes
any attempt to do so; or |
| 3.5.3 |
the Seller believes that any of the above events is about to occur. |
| 3.6 |
The Seller shall be entitled to recover payment for the Ordered Goods notwithstanding
that ownership of any of the Ordered Goods has not passed to the Seller. |
| 3.7 |
The Buyer grants to the Seller, its agents and employees an irrevocable licence
at any time to enter any premises where the Ordered Goods are or may be stored on
foot and/or with vehicles in order to inspect them and the Buyer’s compliance with
this Contract and/or, where the Buyer’s right to possession has terminated, to recover
them. |
| |
|
| 4 |
CONTRACT PRICE |
| 4.1 |
The price payable shall be the price shown in the Price List (available on request)
current at the date of Your acceptance of the order, subject to additional pre-agreed
terms as notified to You in writing. |
| 4.2 |
Prices are exclusive of freight, carriage and VAT. All Prices may be subject
to alteration without notice. Special orders placed with Unipart Leisure/Marine
may be subject to variances from the current Price List. Quotations of special order
prices will be given at the time of order placement and will be deemed to be binding
solely for that particular special order. |
| |
|
| 5 |
PAYMENT TERMS |
| 5.1 |
Unipart Leisure/Marine shall be entitled to raise an invoice for the Goods upon
delivery. |
| 5.2 |
Subject to an express agreement with Us in writing, You shall pay Unipart Leisure/Marine
in full by the end of the month following the month of our invoice. Time for payment
shall be of the essence. |
| 5.3 |
Until payment in full has been received Unipart Leisure/Marine reserves the
right to: |
| 5.3.1 |
charge interest on a daily basis on all sums not received by the due date
at the rate of 4% per annum above the current base lending rate of Lloyds Banking
Group PLC whether before or after judgment; |
| 5.3.2 |
withhold or suspend performance of any contractual obligation to You without
notice, while any account with Us remains overdue; terminate the Contract if the
delay in payment exceeds thirty (30) calendar days; and charge You for all costs
incurred during the recovery of an outstanding debt. |
| 5.4 |
No payment will be deemed to have been received until Unipart Leisure/Marine
has received it in cleared funds. |
| 5.5 |
All sums payable under the Contract will become due immediately upon termination
of the Contract. |
| |
|
| 6 |
PASSING OFTHE RISK |
| 6.1 |
Risk in the Goods will pass to You upon delivery as defined in Clause 7 below
or if earlier when they are placed at Your disposal. Goods shall be deemed delivered
to You upon the first in time to occur of delivery to the address specified by You
(either by Us, our delivery agent or by a carrier) or on delivery to Your agent.
We shall be entitled to make delivery by instalments in which case each instalment
shall be regarded as constituting a separate commercial agreement to which these
Conditions apply. |
| |
|
| 7 |
DELIVERY |
| 7.1 |
If a Delivery Date has been included in the Order Acknowledgement then the following
provisions apply (otherwise any date or period for delivery shall be considered
as indicative only and not contractually binding upon Us.) |
| 7.2 |
You shall not have the right to reject the Goods or terminate the Contract by
reason of any delay in delivery. |
| 7.3 |
If We are delayed in the performance of the Contract by any act or default on
Your part, or any industrial dispute or any circumstance beyond our reasonable control,
then the Delivery Date shall be extended by such period as may be reasonable. |
| 7.4 |
For orders over the value of £250.00 (exclusive of VAT) Delivery will be carriage
paid to the Buyer’s premises (INCOTERMS) 2000 or as otherwise agreed in writing
between the parties. For orders equal to or under the value of £250.00, exclusive
of VAT (but greater than £50.00 exclusive of VAT) a delivery charge will be applied. |
| 7.5 |
Orders with a value of £50.00 exclusive of VAT or less will be consolidated
with other orders placed by You and shipped once the total value exceeds £50.00
exclusive of VAT. Orders, which are forwarded through third party carriers, may
be subject to an additional carriage charge at the prevailing rate at the time of
Your order. You will be notified of this additional charge on Your Order Acknowledgement. |
| |
|
| 8 |
ACCEPTANCE |
| 8.1 |
You must upon receipt inspect all Goods and inform Us in writing within three
(3) calendar days of such receipt if a claim for damage or loss in transit of the
Goods is to be made. In respect of Your obligations hereunder time shall be of the
essence. In the event of non-delivery, You must give written notice to Us immediately
upon whichever shall be the earlier of receipt of our invoice or, where an estimated
arrival time has been given, upon expiry of that time. NO CLAIMSWILL BE CONSIDERED
AND NO LIABILITY ACCEPTED BY US UNLESS NOTIFICATION IS RECEIVEDWITHINTHETIME SPECIFIED
UNLESS OTHERWISE REQUIRED BY LAW. |
| 8.2 |
If You notify Us of damaged Goods, in accordance with the provisions of Clause
8.1,We 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 We
are responsible, shall at our option credit, repair or replace such Goods, but shall
have no further liability to you. |
| 8.3 |
At our request You shall return any Goods, which We consider not to be in accordance
with the Contract to Us at our expense. We shall be responsible for all costs involved
in the repair and replacement of such Goods and for their re-delivery to You. |
| 8.4 |
If We fail within a reasonable time to repair or replace the Goods as required
under Condition 8.2 above, You shall have the right to purchase replacement Goods
of the same or similar description and to recover from Us: |
| 8.4.1 |
any payments made by You in respect of the rejected Goods; |
| 8.4.2 |
the difference, if any, between the price of the rejected goods and the price
of replacement Goods. |
| 8.5 |
Unipart Leisure/Marine shall in no circumstances be liable to You by reason
of any representation (unless fraudulent) or any implied warranty, condition or
other term, or any duty at common law or under the express terms of the Contract
for any indirect or consequential loss or damage, including in particular, loss
of anticipated profits, goodwill or reputation, (whether caused by the negligence
of either party or its Associates) which arise out of or in connection with the
supply of Goods or their use by You under these Conditions. |
| |
|
| 9 |
RETURNED GOODS |
| 9.1 |
Save as otherwise provided in Conditions 8 and 11,You acknowledge and agree
that You shall not be entitled to reject the Goods for breach of any terms of the
Contract, and, further, that damages shall be the sole remedy. |
| 9.2 |
All Goods which are subsequently returned under these Conditions will, subject
to the application of Condition 8.2, only be credited provided that: |
| 9.2.1 |
Any claim by You shall be investigated by Unipart Leisure/Marine as to the
validity of the claim in accordance with Unipart Leisure/Marine’s Returns Procedure
(a copy of which is available from Unipart Leisure/Marine on written request) as
may be notified to You from time to time. |
| 9.2.2 |
The Goods must have been made available for collection no later than seven
(7) calendar days from the date of despatch. We reserve the absolute right to decline
to accept Goods not returned within this time limit. |
| 9.2.3 |
The Goods will only be accepted for return when an authorised Returns Request
Form has been processed. |
| 9.2.4 |
At our sole discretion, We may accept Goods returned later than seven (7)
calendar days after the date of despatch, in which case a handling charge of 25%
will be payable by the Buyer when the Goods are returned to the Us. The handling
charge will be quoted as a percentage of the nett invoice value of the Goods returned. |
| 9.2.5 |
The Goods have been repacked in the manner in which they were delivered to
You. |
| |
|
| 10 |
DESCRIPTION |
| 10.1 |
Unipart Leisure/Marine shall as soon as is practicably possible notify You
of any proposed improvements, modifications or changes to the components or material
composition of the Goods. |
| 10.2 |
The Goods are not tested or sold as fit for any particular purpose as this
will vary according to Your requirements and You must rely on Your own skill and
judgement and enquiries in deciding whether the Goods are fit for a particular purpose.
You acknowledge that You are in the best position to make these decisions. |
| 10.3 |
All samples, drawings, descriptive matter and advertising issued by Us (or
the manufacturer of the Goods) and any description or illustration contained in
our catalogues or other literature are issued or published for the sole purpose
of giving an approximate idea of the Goods represented by or described in them.
They will not form part of the Contract and this is not a sale by sample. |
| |
|
| 11 |
GUARANTEE |
| 11.1 |
Notwithstanding the remaining provisions of this Condition 11, Unipart Leisure/Marine
reserves the right where in its reasonable opinion a defect in Goods is (or may
be) covered by a manufacturer’s warranty, to direct You to resolve any such claims
directly with the manufacturer in accordance with the manufacturer’s warranty. To
the extent that such defect is covered by the manufacturer’s warranty Unipart Leisure/Marine
will not be liable to You for any damages, costs, losses or other liabilities incurred
by You in respect of such defect. |
| 11.2 |
Subject to Condition 11.1, We shall credit in full, repair or replace at our
option any of the Goods which are, or which become, defective within twelve (12)
calendar months from delivery, provided that You have promptly notified Us in writing
of such defect and have given Us a reasonable opportunity to examine the defective
Goods through the returns procedure. |
| 11.3 |
Subject to Condition 11.1all expenses incurred by Us in connection with the
repair or replacement of the defective Goods, including all costs of transportation,
shall be borne by Us. |
| 11.4 |
Subject to Condition 11.1,if We fail to so repair or replace the defective
Goods within a reasonable time of having been notified by You, then You shall be
entitled to have the work of repair or replacement carried out by others, and We
shall pay any costs reasonably incurred by You in so doing. |
| 11.5 |
All expenses incurred by Us in connection with the examination of the Goods
shall be borne by You where such Goods are found by Us not to be defective, and
shall be payable by You on demand. Such expenses shall include but not be limited
to all packaging, transportation, manpower, testing and administrative costs incurred
by Us. |
| 11.6 |
Subject to Condition 11.1, this guarantee in respect of faulty Goods shall
not apply if the Goods are altered or tampered with or if a defect shall be due
to or brought about by fair wear and tear, carelessness on the part of the user,
misuse or accident, or other cause outside our control, and providing You are not
in default of payment of any sums due. |
| 11.7 |
You are responsible for ensuring the Goods ordered are suitable for the purpose
for which they were required. |
| 11.8 |
The liability under guarantee herein is strictly limited to full credit, repair
or replacement. |
| 11.9 |
Our liability in respect of defects in the Goods shall be limited to those
stated in Condition 11 and subject to Condition 2(1) of the Unfair Contract Terms
Act 1997,the Seller shall not be liable whether in contract 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. |
| 11.10 |
On certain Goods an extended guarantee offered by the manufacturer may be
passed on to You. The extended period will be notified to You through the Unipart
Leisure/Marine Catalogue or other support literature. Extended guarantee periods
will apply only to the stated Goods. |
| |
|
| 12 |
LIMITATION OF LIABILITY |
| 12.1 |
Our obligations and liabilities in respect of the description of the Goods,
the quality of the Goods or their fitness for purpose are limited to those which
are expressly stated in Conditions 8 and 11 above. |
| 12.2 |
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 from other contracts
which the other party may suffer arising out of any breach by a party of its obligations
under the Contract and whether the same be due to negligence of that party or not. |
| 12.3 |
For the avoidance of doubt nothing in these Conditions shall not limit any
liability Unipart Leisure/Marine may have for death or personal injury arising as
a result of our negligence or that of our employees nor in respect of any liability
for breach of the obligations arising under Section 12 of the Sale of Goods Act
1979 as amended. |
| 12.4 |
So far as such exclusion is permitted by English Law, any express or implied
condition of warranty or term statutory or otherwise as to the quality, fitness,
compliance with description, or sample of the whole or any part of the Goods, or
replacement thereof, or as to the quality of any work or repair or replacement is
hereby excluded. |
| |
|
| 13 |
LICENCES |
| 13.1 |
AND CONSENTS If a licence or consent of any government or other authority is
required for the acquisition, carriage or use of Goods by the Buyer, the Buyer shall
obtain the licence or consent at its own expense and if requested produce evidence
of it to the Seller on demand. |
| |
|
| 14 |
HEALTH AND SAFETY |
| 14.1 |
The Parties shall comply with all current Safety and Environmental legislation
in the performance of this Contract. You shall advise Unipart Leisure/Marine what
safety requirements and obligations apply toYour business and premises under Health
and Safety legislation or regulations. |
| |
|
| 15 |
TERMINATION PROVISIONS |
| 15.1 |
Unipart Leisure/Marine may terminate the Contract with immediate effect by
notice in writing to You on or at any time after the occurrence of any of the following
default events: |
| 15.1.1 |
A receiver or administrative receiver is appointed in respect of the Buyer
or over all or part of the Buyer's assets or undertakings if the Buyer becomes bankrupt; |
| 15.1.2 |
the Buyer announces that they have ceased to trade or intend to cease to
trade; |
| 15.1.3 |
the Buyer suspends payments of their debts or is unable to pay or admit or
state their inability to pay their debts as they fall due. |
| 15.1.4 |
the Buyer disposes or threatens to dispose of all or a material part of their
assets whether by one or a series or transactions (other than for the sole purpose
of and followed by their reconstruction or amalgamation, approved by the Seller); |
| 15.1.5 |
the Buyer convenes, calls or holds a meeting of their creditors or makes
any arrangement, voluntary arrangement or composition with their creditors; |
| 15.1.6 |
the Buyer's directors make or state an intention to make or give notice of
a proposal in relation to the Buyer for a voluntary arrangement under Part 1 of
the Insolvency Act 1986; |
| 15.1.7 |
a petition is presented for the Buyer's winding-up or administration; |
| 15.1.8 |
a resolution (other than for the sole purpose of and followed by reconstruction
or amalgamation, approved by the Seller) is passed for the Buyer's voluntary winding
up; |
| 15.1.9 |
the Buyer is dissolved; |
| 15.1.10 |
the Buyer suffers the levy or enforcement of any execution, distress, sequestration,
detention or other process on any property or premises. The termination of this
Contract howsoever arising is without prejudice to the rights duties and liabilities
of either party accrued prior to termination. The Conditions in this Contract which
expressly or impliedly have effect after termination shall continue to be enforceable
not withstanding termination. |
| |
|
| 16 |
SET OFF |
| 16.1 |
You shall make no reduction from the amount payable under each invoice on account
of any set-offs or claim or counter-claim unless both the validity and the amount
thereof have been agreed to by Unipart Leisure/Marine in writing. |
| |
|
| 17 |
INTERPRETATION |
| 17.1 |
These Conditions are governed in all respects by English Law and the Buyer
submits to jurisdiction of the English Courts. |
| |
|
| 18 |
CONSTRUCTION |
| 18.1 |
If any of the provisions of these Conditions are held to be invalid for any
reason then these Conditions shall be read as if the invalid provisions had to that
extent been deleted and the validity of the remaining provisions of these Conditions
shall not be affected. |
| |
|
| 19 |
BUYER CONDITIONS OF PURCHASE |
| 19.1 |
In all instances the Conditions stated herein override any separate terms and
conditions of purchase stated by You. |
| |
|
| 20 |
VARIANCES TO STANDARD CONDITIONS OF SALE |
| 20.1 |
We reserve the right to vary and/or supplement these Conditions. You will be
notified of any variation in writing and any variation will only apply in respect
of Goods purchased following such notification. |
| |
|
| 21 |
VAT |
| 21.1 |
All sums due to either party under the Contract are exclusive of VAT or other
similar sales taxes which shall be paid by You. |
| 21.2 |
Where under the Contract one party has agreed to reimburse or indemnify the
other in respect of any payment made or cost incurred by the other then the first
party shall also reimburse any VAT paid by the other which forms part of its payments
or costs incurred to the extent that such VAT is not available for credit for the
other under sections 25 and 26 of the Value Added Tax Act 1994. |