Terms & Conditions
1 Interpretation
In these terms and conditions "the Seller" means VW CO. Limited and "the Buyer" means the party with whom the Seller is contracting and "the Goods" means the goods and / or services which the Seller contracts to supply. Where services are being provided in part or whole the definition of "goods" shall be deemed to mean services as to give the most practical definition of such services in each particular circumstance.
2 Basis of the sale
2.1 - These terms and conditions shall form the entire agreement between the Seller and the Buyer. No variation or addition to these terms and conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller notwithstanding any subsequent document sent or purported to be sent by the buyer to supersede or amend in whole or in part the Terms and Conditions set out herein a substitution of this Agreement. The parties agree that any subsequent document to these Terms and Conditions of Sale purporting to amend or vary the same in any form will be deemed of no effect and null and void.
2.2 - The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing.
3 Orders and specifications
3.1 - No binding agreement shall exist between the Buyer and the Seller until the Seller has sent a written acceptance of the Buyer's order to the Buyer ("a Written Acceptance"). In the event that there are any changes to the availability of the raw materials after the Seller has issued its quotation, the Seller shall be entitled to vary or withdraw its quotation, notwithstanding the fact that a Written Acceptance has been issued by the Seller.
3.2 - If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification, the Buyer shall submit such specification with its order and the Buyer shall indemnify the Seller against all loss, damages, costs and expenses paid by the Seller, or in the event of a settlement of a claim, agreed to be paid by the Seller, in respect of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.
3.3 - No order for which a Written Acceptance has been issued by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller, and the Buyer shall be responsible for all costs and damages incurred by the Seller as a result of the cancellation.
3.4 - The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable legislation or regulatory requirements, or where the Goods are to be supplied to the Seller's specification which do not materially affect their quality or performance.
3.5 - All prices are strictly nett for cash monthly account, unless otherwise stated.
4 Price of the goods
4.1 - The price of the Goods shall be the Seller's quoted price. The price shall not include delivery unless otherwise stated.
4.2 - The Seller reserves the right, without notice to the Buyer, to increase the price of the Goods at any time to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation and any increase in the costs of manufacture) or which is due to any factor caused by the Buyer.
4.3 - The price is exclusive of any applicable duty, value added tax, or sales tax which the Buyer shall be additionally liable to pay to the Seller.
5 Terms of payment
5.1 - The Seller may invoice the Buyer for the price of the Goods prior to or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection. The Buyer shall pay the price of the Goods within 30 days of the date of the Seller's invoice.
5.2 - If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may cancel the contract and take possession the Goods in accordance with clause 8.3 and / or charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 3% per cent per annum above HSBC Bank base rate from time to time, until payment in full is made.
6 Delivery
6.1 - Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to such place. Where the Seller agrees to delivery the Goods otherwise than at the Seller's premises the Buyer shall be liable to pay the Seller's charges for transport, packaging and insurance.
6.2 - Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery, or as the case may be, any early delivery of the Goods howsoever caused. Time for delivery shall not be of the essence.
6.3 - Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these terms and conditions shall not entitle the Buyer to treat the agreement as a whole as repudiated.
6.4 - If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the liability of the Seller shall be limited to the cost of the goods or the loss suffered by the Buyer having mitigated his loss in full in respect of the failure of delivery
6.5 - If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time the Seller notifies the Buyer that the Goods are ready for delivery, then the Seller shall be entitled to, at its discretion, store the Goods until actual delivery, the cost of which shall be borne by the Buyer, or sell the Goods with the Buyer remaining responsible for any difference in price resulting in a loss to the Seller
7 Risk
7.1 - Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
8 Retention of Title
8.1 - Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these terms and conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods.
8.2 - Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, insured and identified as the Seller's property, but the Buyer may resell the Goods provided the Buyer does so as fiduciary agent of the Seller. Any such resale is to be at arms length and on market terms. The Buyer will receive the proceeds from such resale in trust for the Seller and will keep such proceeds in a separate account until the liability of the Seller has been discharged.
8.3 - Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time with good cause require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer and the Buyer expressly gives the Seller the right to enter upon the Buyer's premises or any of them at any time to exercise such rights or any third property where the Goods are stored and for the purpose of repossessing such goods.
8.4 - In the event that the Buyer uses the Goods in some manufacturing process of its own or some third party, then the Buyer shall hold such part of the proceeds of such manufacturing process as relates to the Goods in trust for the Seller and shall keep such proceeds in a separate account until the liability of the Seller has been discharged. Such part of the proceeds shall equal the amount owing by the Buyer to the Seller at the time of receipt of such proceeds.
8.5 - Where the Buyer is required to keep the proceeds of a resale or manufacturing process of the Goods in a separate account in accordance with clause 8.2 and 8.4 above, then the Buyer shall be obliged to keep a separate record of these proceeds and shall allow the Seller to inspect these records upon a reasonable request by the Seller to do so.
8.6 - The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
9 Warranties and liability
9.1 - The Buyer shall rely upon its own skill and judgment as to the suitability of the Goods for the purpose for which they are intended unless any specific conditions relating to the use of the Goods are notified to the Seller and accepted by it prior to the issuing of the Written Acceptance.
9.2 - Subject to the provisions of this clause 9 the Seller warrants that the Goods will be free from defects in material and workmanship. This warranty is given by the Seller subject to the following conditions:
9.2.1 - The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
9.2.2 - The Seller shall be under no liability in respect of any defect arising from fair wear and tear, accidental or wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Seller's approval;
9.2.3 - The above warranty does not extend to parts, materials or equipment not manufactured by the Seller;
9.2.4 - A claim by the buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within fourteen days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) with fourteen days after discovery of the defect or failure (but in any event within twelve months of delivery) If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
9.3 - All warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.4 - Where a valid claim in respect of a defect of the Goods is notified to the Seller in accordance with these terms and conditions, the Seller may replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, repair the Goods free of charge. Totality of the Remedy.
9.5 - Except in respect of death or personal injury caused by the Seller's negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any misstatement or representation (unless fraudulent), or any implied warranty, or any duty at common law, or under the express terms of the agreement, for loss of profit or for any direct, indirect, consequential loss or damage howsoever arising. The entire liability of the Seller under or in connection with the agreement shall not exceed the price of the Goods.
10 Force Majeure
10.1 - The Seller shall not be liable to the Buyer by reason of any delay or failure in performing its obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without limiting the foregoing, causes beyond the Seller's reasonable control shall include an act of God, flood, fire or accident, war, sabotage, civil disturbance, statutes, restrictions, regulations, bye?laws, import or export regulations or embargoes; industrial actions or trade disputes, difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.
11 Health and Safety
11.1 - The Seller has available up-to-date information and literature relating to the Goods and the conditions necessary to ensure that the Goods supplied will be safe and without risk to health when properly used. It is the Buyer's obligation to obtain this information and literature from the Seller in order to ensure proper use of the Goods.
11.2 - The Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller as a result of any claims made or actions brought by a third party in respect of injury, loss or damage arising either directly or indirectly from the sale, installation or operation in a negligent or improper manner of the goods by the Buyer, its employees or agents.
12 Insolvency of buyer
12.1 - In the event of the insolvency of the Buyer (or where the Seller reasonably apprehends that an event of insolvency is about to occur to the Buyer and notifies the Buyer accordingly), then without limiting any other right or remedy available to the Seller, the Seller may cancel the agreement and if the Goods have been delivered but not paid for the price shall become immediately due and the Seller shall be entitled to take possession of the Goods in accordance with clause 8.3.
13 Testing
13.1 - If the Buyer requires testing and inspection of the Goods before taking delivery, the Buyer shall be responsible for such testing and inspection at the Seller's premises. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection.
14 Confidentiality
14.1 - The existence of the agreement between the Seller and the Buyer and the content of the agreement, including price and quantity, is a confidential matter and shall not be disclosed by the Buyer to any third party without the written consent of the Seller.
15 General
15.1 - This agreement shall be governed by the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts.
15.2 - The provisions of The Contracts (Rights of Third Parties) Act 1999 are hereby excluded.
15.3 - If any provision of the agreement is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the agreement and the remainder of the provision in question shall not be affected.