TERMS & CONDITIONS - ENGINE FITTERS LTD
Definitions and Interpretation
1.1 In these terms unless the context shall require otherwise:
a. "Company" means the company by whom this form is used and whose name and registered office is detailed overleaf and its successors and assigns;
b) "Completion" means, in the case of a contract for Work, the date of the Company's notice to the Customer that Work has been completed or, in the case of a Contract for the supply of Goods, the date those Goods are supplied;
c) "Contract" means the contract between the Company and the Customer for the sale or supply of Work and/or Goods;
d) "Customer" means the person , firm or company at whose request the Work is to be performed or Goods supplied;
e) "Estimate" means an estimate in writing given by the Company to the Customer
f) "Genuine Parts" means vehicle parts manufactured by or for the Manufacturer;
g) "Goods" means any goods or replacements therefore to be supplied by the Company under the Contract whether or not supplied in conjunction with Work;
h) "Manufacturer" means, in respect of a Vehicle, the manufacturer of the Vehicle;
i) "Order" means the instructions written or otherwise received by the Company from the Customer for Work to be done or Goods to be supplied;
j) "Price" means the price of the Goods and/or the charge for the Work payable by the Customer to the Company;
k) "Vehicle" means a vehicle delivered to the Company as Bailee upon which the Customer has requested the Company to carry out Work or provide an estimate of Work;
l) "Work" means any works to be performed on a Vehicle at the Customer's request whether by way of repairs, servicing, fitting, modification or otherwise; and
m) "Working Days" means all days other than Saturdays, Sundays and public holidays.
1.2 These terms constitute the only terms of the Contract and no amendment or additions thereto shall be effective unless agreed in writing by an authorised representative of the Company.
1.3 Headings are for convenience only and shall not affect the construction of these terms; the masculine shall include all genders and the singular shall include the plural; any reference to statutory provisions is a reference to such statutory provisions as amended or re-enacted from time to time.
1.4 Any typographical, clerical or other error or omission in any Estimate, Order, acknowledgement of Order, invoice or other document issued by the Company shall be subject to correction without the liability on the part of the Company.
1.5 The Company reserves the right to amend these terms at any time without any notice, any changes are effective from the date the amendments are made.
2. Formation of Contract
2.1 The Customer's request to the Company to carry out Work or supply Goods is an offer to enter into a contract upon these terms. Acceptance occurs and the Contract is formed upon the first of the following to occur:-
(a) The Company accepting the Customer's duly signed authority to the Company to proceed with Work and accepting delivery of the Vehicle at its premises: or
(b) The Customer submitting a quote request through the Company website; or
(c) The Company accepting the Customer's authorisation to the Company to proceed with Work that they have been quoted via telephone, email or any other form of communication.
(d) The Company commencing the Work; or
(e) The Company issuing to the Customer an acknowledgement of the Order signed and dated by an authorised representative of the Company; or
(f) In the case of Goods only, the Company proceeding to fulfill the Order.
2.2 The Contract is personal to the Customer and the Customer shall not assign the benefit of the Contract without the prior written consent of an authorised representative of the Company.
3. Customer's Insurer
3.1 In the event the Company carries out Work and/or supplies Goods on the authority of the Customer's insurer, the Customer's insurer will be deemed to be the Customer and all references to the Customer will be construed accordingly save that this provision will not relieve the Customer from liability to pay to the Company any amount due for the Work and/or Goods which is not recovered or recoverable by the Company from the Customer's insurer.
4.1 Any Estimate is a considered approximation of the likely costs of Work and/or Goods. Estimates do not constitute an offer by the Company and are valid for seven (7) days from the date stated thereon unless otherwise agreed in writing by an authorised representative of the Company.
4.2 If the Customer delivers the Vehicle to the Company for the purposes of an Estimate being prepared and does not either give instructions for carrying out of the Work or collect the Vehicle within seven (7) days from the date of the Estimate the Company shall be entitled either to store the Vehicle itself or have it stored by third parties (as the Company may in its absolute discretion think fit) and to charge the Customer the cost of storage for the period from the 8th day after the date of the Estimate until the Customer collects the Vehicle. The Customer shall be deemed to have given instructions to the Company for the storage of the Vehicle for such period and the Company shall be constituted a Bailee for reward and obtain a lien against the Vehicle for its reasonable storage charges during such a period. Such storage charges shall be paid before the Vehicle may be removed from the premises at which it is being stored.
4.3 Unless otherwise agreed in writing by an authorised representative of the Company if, during progress of the Work, it appears that the Estimate will be exceeded by a significant amount, the Company will cease performing Work and notify the Customer of the anticipated costs and will not resume performance of Work until it has received the Customer's express permission (which need not be in writing) to do so.
5. Price and Variation
5.1 Prices stated in any Estimate or communicated to the Customer are based on the prices current at the date of the Estimate or communication (as the case may be).
5.2 The Company reserves the right to vary the Price by any amount attributable to a change in the Customer's instructions or any variation in cost to the Company of goods, materials, and/or labour required for the performance of the Contract and taxes or any other costs whatsoever between the date of the Contract and the date of Completion or payment (whichever is the later).
5.3 If prior to completion of Work and/or delivery of Goods the Price increases in accordance with Condition 5.2 by more than 5% (or such other figure as specified by the Company) the Company will notify the Customer of the amount of the increase the Company intends to pass on to the Customer and the Customer may by express instruction in writing cancel the Contract and pay to the Company the Price for Works carried out and/or Goods delivered in whole or in part up to the time of receipt by the Company of such notice of cancellation.
5.4 The Contract may not be varied without the express consent in writing of an authorised representative of the Company. Any variations so agreed shall not constitute a new contract, but shall be deemed to be an amendment of this Contract
5.5 All specifications provided to the buyer are projected only and intended merely to represent a general idea of the Goods labelled therein and the Company has no liability in respect of any differences or deviations there from.
6.1 Dates and times given for completion of Work and/or delivery of Goods are estimates only. In relation to this Condition 6 only time is not of the essence. The Company will use reasonable endeavors to perform Work or supply Goods within the time specified (if any) to the Customer. Subject to Condition 11 the Customer shall not be entitled to reject Work and/or Goods completed or delivered later than the estimated date. The Company may suspend or delay delivery and shall not be liable for any loss, damage or delay occasioned by failure to deliver Goods and or complete Work on the estimated delivery date or time.
7. Completion and Payment
7.1 Unless otherwise expressly agreed in writing by an authorised representative of the Company:-
a) Delivery of Goods shall be at the Company's premises stated overleaf;
b) Payment of the Price shall be in cash on delivery. Payment by credit card will not be accepted unless by the prior express agreement of an authorised representative of the Company. The Company reserves the right to vayr the Price, as a condition of accepting payment by credit card. The Customer will pay as part of the Price any additional amount reasonably specified by the Company should the Company in its absolute discretion agree to accept payment by credit card.
7.2 The Company shall notify the Customer when Goods on order from a supplier are ready for collection. If the Customer shall fail to pay for and take delivery of such Goods within seven (7) days of such notice the Company shall (without prejudice to its other rights and remedies under the Contract) be entitled to treat the Contract as repudiated and to sell the Goods.
7.3 Goods ordered from stock shall be delivered upon payment of the Price.
7.4 Upon completion of Work the Company shall advise the Customer that the Vehicle is ready for collection and the Customer shall be obliged to pay for Work and/or Goods supplied and collect the vehicle. The Customer will pay the Company for all Work done and Goods supplied and any storage charges and all other amounts payable to the Company under these terms before the Vehicle may be removed from the Company's premises.
7.5 If for any reason Work requested by the Customer is not carried out in full the Company will charge a reasonable amount for any Work actually done and the then current Price for any Goods supplied.
7.6 If the Customer shall fail to pay the Price and/or collect the Vehicle within seven (7) days after Completion the Company shall be entitled to store the vehicle itself or to have it stored by third parties (as the Company in its absolute discretion may think fit) and to charge the Customer with the cost of such storage for the period from the eight day after Completion until the Vehicle is either collected by the Customer or sold pursuant to Condition 7.7. Such storage charges shall be added to and form part of the Price. The Customer shall be deemed to have given instructions to the Company for the storage of the Vehicle for such period and the Company shall be constituted a bailee for reward and obtain a lien against the Vehicle for its reasonable storage charges during such period.
7.7 If the Customer is in breach of any obligation hereunder to take delivery of the Vehicle, the Company may serve on the Customer notice pursuant to the Torts (Interference with Goods) Act 1977 of its intention to sell the Vehicle upon the expiry of three months from the date of such notice. If the Customer shall fail within such period to pay all monies due to the Company and take delivery of the Vehicle the Company may sell the Vehicle. Upon any such sale the Company shall pay the balance of the proceeds of sale to the Customer after the deduction of all monies due to the Company, interest on overdue amounts and all costs of sale.
7.8 Interest will be charged on all sums due under or by way of damages for breach of the Contract at the rate of 2% per annum above the base rate of Lloyds TSB Bank Plc from time to time in force and shall be calculated and accrue on a day-to-day basis from the date on which payment fell due until payment whether made before or after judgment has been obtained.
7.9 The Company may at any time at its absolute discretion appropriate any payment by the Customer to such outstanding debt as the Company thinks fit notwithstanding any purported appropriation to the contrary by the Customer.
7.10 The Company reserves the right at any time to set off any sum payable by the Company under this or any other agreement between the Company and the Customer and any sum payable by the Customer to the Company under the Contract.
7.11 The Company reserves the right at any time at its absolute discretion to demand security for payment before consulting performance of an Order.
7.12 VAT will be charged on the Price at the rate ruling at the time of delivery of the Goods or Completion or (if different) the basic tax point (as defined in regulations governing VAT from time to time in force).
7.13 Without prejudice to the provisions of Condition 7.8 and to the Company's other rights and remedies for breach of contract or otherwise, the Company reserves the right to make a single late-payment charge to cover the Company's administrative expenses of recovery (up to but not including issue of proceedings). Such charge shall be added to and form part of the Price is the Customer does not make payment in full for the Goods or Work on or before the due date in accordance with this Condition 7 The amount of such charge shall be calculated at 2.5% of the total invoice Price and shall be shown as a separate item on the invoice to the Customer but payable only in the event of late payment.
7.14 Subject to Condition 11 no Order which has been accepted by the Company in full against all reasonable loss (including, without limitation, loss of profits), costs, damages, charges and/or expenses incurred by the Company as a result of cancellation.
8. Risk and Retention of Title
8.1 Goods are at the risk of the Customer as soon as they are delivered by the Company to the Customer.
8.2 Until the Company has received payment in full of all sums owed to it on any account by the Customer, whether arising out of this or any other contract, legal and beneficial title to the Goods shall remain in the Company; such Goods are referred to in this Condition as "Retained Goods".
8.3 The Customer may use Retained Goods and acknowledges that he shall be in possession of Retained Goods as bailee for the Company.
8.4 The Customer will store Retained Goods separately from his own Goods or those of any other person, keep them safe, in good condition and clearly identifiable as the Company's property with all indentifying marks intact and legible.
8.5 The Customer irrevocably authorises the Company to enter upon its premises for the purpose of inspecting Retained Goods and identifying them as the Company's property.
8.6 The Customer's power of possession and use of Retained Goods shall terminate:-
(a) Forthwith on notice from the Company if the Company has reasonable doubts as to the ability or willingness of the Customer to pay any sum to it on the due date; and
(b) Automatically upon the occurrence of any of the following events:-
(i) If the Customer becomes insolvent or commits any act of bankruptcy or causes a meeting of or makes an arrangement or composition with all or any part of its creditors;
(ii) If there is presented a petition for the winding up of the Customer or for the appointment of an administrator or receiver of the whole or any part of the assets or undertaking of the Customer;
(iii) If there is appointed an administrator or receiver of the whole or any part of the assets or undertaking of the Customer;
(iv) If a resolution is passed or an order for the winding up of the Customer is made (otherwise than for the purposes of a bona fide reconstruction or amalgamation of a solvent company); or
(v) Any event or process of like nature to those set out in paragraphs (i) to (iv) above in any jurisdiction.
8.7 Upon suspension, revocation or determination of the power of possession and use of Retained Goods under this Condition the Customer shall place all the Retained Goods in its possession or under its control at the Company's disposal and shall be deemed irrevocably to authorise the Company to enter upon any of its premises with or without vehicles for the purpose of removing such Goods.
8.8 The repossession of Retained Goods by the Company in accordance with this Condition shall be without prejudice to all or any of the Company's other rights or remedies against the Customer.
9. Loss or Damage
9.1 The customer is strongly advised before delivering the Vehicle to the Company to remove from the Vehicle any items of property not related to the vehicle. The Company shall not be liable for loss or damage to any such item remaining in the Vehicle.
10. Replacement Parts
10.1 All parts replaced during performance of Work, except those that have to be returned to manufacturers or suppliers under warranty or service exchange arrangements, will be retained by the Company for return to the Customer upon collection of the Vehicle. If the Customer does not ask to take possession of such replaced parts when collecting the Vehicle, replaced parts shall become the property of the Company to dispose of as it deems fit.
11.1 If the Customer is acting as a consumer (meaning not in the course of a business) in a distance contract (as defined by the Consumer Protection (Distance Selling) Regulations 2000) and the Contract:-
a) Is solely for the sale of Goods; or
b) For the supply of Work and such Work commences more than seven (7) Working Days after the date of the Contract being concluded, the Customer may cancel the Contract:-
(i) If it is a Contract falling within Condition 11.1(a) up to seven Working Days after delivery of the Goods; and,
(ii) If it is a Contract falling within Condition 11.1(b) up to seven Working Days after the date of the Contract being concluded, the Customer will not have the right to cancel.
11.2 In the event the Customer is acting as a consumer in a distance contract as detailed in Condition 11.1 concerning the supply of Work, and the Company commences such Work within seven (7) Working Days of the date of the Contract being concluded, the Customer will not have the right to cancel.
11.3 In the event the Contract is cancelled in accordance with Condition 11.1 (i) the Customer is under a duty to retain possession of, take good care of and following cancellation restore the Goods to the Company in a reasonable condition and the Customer will pay to the Company forthwith upon request:-
(a) Any reasonable costs incurred by the Company in recovering the Goods; and
(b) The difference, if any, between the value of the Goods when so returned and the Price.
11.4 If the Customer cancels the Contract in accordance with this Condition 11 and the Company has received the Price from the Customer, the Company will within 30 (thirty) days of the date of receipt by the Company of the notice of cancellation, reimburse the Customer for a sum equal to the Price, or part thereof received minus a sum equal to the aggregate of the amounts referred to in Condition 11.3(a) and Condition 11.3(b).
12. Returned Goods
12.1 Subject to Condition 11, the Company may (in its absolute discretion) agree to rescind the Contract to the extent that it is for the supply of Goods and accept return of Goods upon the following conditions:-
(a) The Goods were not specially ordered from the manufacturer or supplier for the Customer; and
(b) The Customer returns the Goods in good condition within five (5) Working Days after delivery; and
(c) The Customer produces the original invoice for the Goods ; and
(d) The Customer pays the Company's current handling charges for returned Goods.
13.1 The Company shall be entitled to appoint sub-contractors for the performance of its obligations under the Contract.
14. Health & Safety
14.1 Upon delivery of a Vehicle to the Company the Customer shall immediately inform the Company of any circumstances or matters known to him which render the Vehicle unsafe or in a hazardous condition.
14.2 For the purposes of Section 2 of the Consumer Protection Act 1987, the producer of Genuine Parts is the Manufacturer, whose address is available from the Company on request.
14.3 The instructions for use, cautionary notices and other technical notices supplied to the Customer with the Goods have been prepared by the relevant manufacturer of the Goods. The Customer should reach such notices carefully. The Company shall not be liable for any loss or damage suffered by the Customer through the Customer's failure to read and comply with instructions specified in such notices.
15.1 The Company assigns to the Customer the benefit of the applicable Manufacturer's warranty (if any) for Goods supplied and/or fitted to the Vehicle.
15.2 No warranty will apply if and to the extent that a defect is caused or worsened by any of the following:-
(a) By the Customer's failure to inform the Company of the defect or have it examined by the Company and a failure to give the Company the opportunity to remedy it;
(b) If the Goods have been subject to misuse, negligence or accident or used in a vehicle other than on a public road or for racing, rallying, pace making, similar sports and/or any other type of use not normally considered as normal domestic use;
(c) The installation of a part into Goods, the use of which has not been approved by the Manufacturer or the alteration of Goods in a manner not approved by the Manufacturer;
(d) Non-adherence to instructions concerning the treatment, maintenance and care of the Goods or a failure to have the relevant vehicle serviced in accordance with the relevant Manufacturer's recommendations; or
(e) The repair or maintenance of the Goods by a person other than a retail dealer in the Manufacturer's vehicles or a person authorised by the Manufacturer.
15.3 The Company warrants Work free from defects for a period of six (6) months from Completion or until the Vehicle following Completion has covered 5000 miles (whichever occurs sooner) ("the Warranty Period");
(a) Warranties are not transferable
(b) Warranty covers Cylinder Head, Engine Block & Sump only all ancillaries are excluded
(c) Vehicle recovery is not included under any circumstances and is not included in the Warranty
(d) Warranty provided will only be valid should the following be adhered to once the Customer receives their vehicle;-
(i) Customer must allow Vehicle to idle for a minimum of five (5) minutes before setting off;
(ii) Customer must ensure the correct fuel is used for their Vehicle;
(iii) Customer must not exceed sixty (60) mph for the first two thousand (2,000) miles;
(iv) Customer must ensure Vehicle's engine oil and coolant levels are checked on a daily basis any signs of leakage must be reported to the Company immediately;
(v) Customer must ensure the Vehicle has an interim service carried out by the Company at two thousand (2,000) miles to validate the remainder of the warranty, failure to do so will void the warranty.
(vi) Customer must ensure the Vehicle is serviced every five thousand (5,000) miles or every six (6) months by a reputable garage after the interim service has been carried out, proof of service must be kept to maintain warranty.
15.4 If within the Warranty Period material defects in the Work and/or Goods are discovered and:-
(a) The Customer notifies the Company within fourteen (14) days after discovery giving particulars and returns the Vehicle to the Company's premises to allow an inspection to be carried out; and
(b) Such defect has arisen from faulty materials employed, Workmanship carried out and/or Goods supplied by the Company, then the Company shall remedy the defect and, if necessary, supply replacement Goods and/or parts. Any Goods and/or parts so replaced shall become the property of the Company to dispose of as it deems fit.
(c) If any ancillary develops a fault that causes damage to the Work/Goods completed/supplied by the Company, the warranty will be void.
15.5 The Company's liability for defective Work and/or Goods is limited in all circumstances to remedying the Work and/or Goods and supplying (where necessary) replacement parts and/or Goods. Completion of such remedial work and/or supplying of replacement parts and/or Goods shall constitute fulfilment of the Company's obligations under the Contract.
15.6 The Company's liability under this Condition applies only to defects appearing whilst the Vehicle has been used and drive in a proper manner and serviced in accordance with the Manufacturer's recommendations and in particular (but without limitation) the Company shall not be liable in the case of defects arising out of normal deterioration, failure to follow the Company's instructions or improper or faulty handling of the Vehicle.
15.7 The warranties contained in this Condition are in addition to any statutory rights implied in favour of a purchaser of goods and/or services.
15.8 Nothing in this Condition shall be construed as limiting or excluding the Company's liability under the Consumer Protection Act 1987 or for death or personal injury resulting from its negligence (as defined in Section 1 of the Unfair Contract Terms Act 1977).
15.9 On all Re-build Engines warrantie will be void if vehicle has a towbar found on it or if vehicle is used for towing and this will be discovered through damage occurred to Engine. Warranty will be void if vehicle has been remapped or modified in any way.
16. Force Majeure
16.1 The Company shall not be liable to the Customer if unable to carry out any provision of the Contract for any reason beyond its control or owing to any inability to procure parts or materials required for the performance of the Contract.
16.2 The Company shall notify the Customer as soon as reasonably practicable after circumstances preventing performance arise. During the continuance of such a contingency the Company may, within its absolute discretion, withhold, reduce or suspend performance of its contractual obligations so far as prevented or hindered by such contingency without liability to the Customer for any loss or damage whatsoever suffered directly or indirectly by reason of any such withholding, reduction, or suspension.
16.3 Should such contingency continue for more than one month either party may cancel the Contract and, subject to payment for any Goods supplied and Work done pursuant to the Contract, the Customer may collect the Vehicle and the parties' respective obligations under the Contract shall be deemed to be discharged.
17. No Waiver
17.1 No waiver of any of the Company's rights under the Contract shall be effective unless in writing signed by an authorised person on behalf of the Company. A waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of the Company's rights in relation to different circumstances or the recurrence of similar circumstances.
18.1 Any notice under these Conditions shall be properly given if in writing and sent by first class post or facsimile to the address of the intended recipient as stated in the Contract or to such address as the Company and the Customer from time to time communicate to each other as their respective addresses for service and shall be deemed served, in the case of postal notice, on the expiry of forty-eight (48) hours from time of posting and in the case of facsimile, on completion of transmission by the sender.
19. Third Party Rights
19.1 A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
20. Construction and Jurisdiction
20.1 English Law shall govern construction and operation of the Contract and the Customer agrees to submit to the exclusive jurisdiction of the English Courts.
20.2 Each of these conditions and each paragraph hereof shall be construed as a speared condition; should any provision hereof be found to be invalid or unenforceable or an unreasonable restriction of the Company's liability then such provision shall apply with such modification as may be necessary to make it valid and effective.