A. SMITH GT BENTLEY LIMITED
TERMS OF BUSINESS
- Definitions
1.1 “The Company” means A Smith Gt Bentley
Limited of Frating, Colchester, Essex. CO7 7DL or
such associated or subsidiary company as may be
selling the goods or contracting to do any works
or supply any material to the Customer.
1.2 “Customer” means the person to whom the
Company may agree to sell Goods or supply
Services.
1.3 “Goods” means goods, materials, equipment
or parts supplied by the Company to the Customer.
1.4 “Services” means the supply of services or
performance of works including repair works by the
Company to the Customer. - General
2.1 These terms and conditions shall form part
of and govern every contract between the Company
and the Customer for the supply of Goods and/or
Services.
2.2 The acceptance by the Customer of a
quotation by the Company or the placing of an
order by the Customer for the supply of Goods
and/or Services shall include acceptance by the
Customer of these conditions which shall supercede
all previous negotiations and representations.
2.3 Quotations indicate the price at which the
Company will be willing to supply Goods and/or
Services if a firm order is placed within 30 days
unless otherwise specified in the quotation.
2.4 A quotation is not an offer to supply Goods
or Services and no contract shall arise between
the Company and the Customer until a firm order by
the Customer has been accepted in writing by the
Company and the date of such acceptance shall be
the contract date.
2.5 Goods and/or services are offered subject
to availability and in the case of Goods to them
being unsold.
2.6 No terms and conditions imposed by the
Customer and no addition to or variation of these
Conditions shall have affect save to the extent
that it was expressly agreed to in writing and
signed by a duly authorized representative of the
Company. - Price
3.1 The price of the Goods and/or Services
shall be in accordance with the Company’s current
list price for such Goods and Services ruling at
the date of delivery or in accordance with the
quotation (as varied in accordance with paragraph
3.2 below) if a firm order is received within the
30 day period referred to in paragraph 2.3 above.
3.2 The price stated in the quotation is
subject to variation at the sole discretion of the
Company at any time before delivery in accordance
with clause 5.1 below, if there is any increase in
the cost to the Company of labour, materials or
overheads required for the provision of Services
or any increase in the cost to the Company of the
purchase, importation or manufacture of the Goods
or any part thereof or if the Company would
otherwise suffer loss as a result of currency
fluctuations any such variation shall not be made
to solely meet increased costs which would not
have occurred but for the failure of the Company
to proceed with work within reasonable dispatch.
3.3 Save where otherwise specifically agreed in
writing any specified price shall be the price of
the Goods and Services ex-works and the Customer
shall in addition to the price payable for the
Goods and Services pay all duties, charges and
taxes on the Goods and Services, including for the
avoidance of doubt any VAT payable thereon.
3.4 Quotations cover only the work and/or
items specified therein, and all additions,
alterations, waiting time and any additional costs
due to modified instructions shall be charged to
the Customer at ruling prices. - Payment
4.1 Unless otherwise agreed in writing all
invoices are due for payment immediately upon
receipt at the intervals stated in the offer
document or in the absence of any such statement
upon the Customer receiving notification from the
Company that the Goods or other goods upon which
Services have been performed are ready for
collection in accordance with paragraph 5.3
provided always that payment shall be received by
the Company on or before collection in accordance
with paragraph 5.1.
4.2 The Company reserves the right, without
prejudice to any other rights which it may have,
to charge interest at the rate of 3 per cent above
the base rate for Barclays Bank Plc per annum from
time to time in force on overdue accounts such
interest to run from day to day and to accrue
after as well as before any judgement and/or to
suspend or terminate the supply of goods or
provision of services to the Customer hereunder
where payment of the Company’s invoice is overdue.
4.3 Any query to be raised by the Customer on
any invoice issued by the Company shall be made
within 30 days of the date of the invoice or the
parties shall be deemed to have accepted the
invoice.
4.4 The Customer shall not withhold any payment
for any reason nor may any counterclaim of the
Customer be set-off against any payment due under
the contract without the written consent of a duly
authorized officer of the Company. - Delivery
5.1 Unless otherwise specifically agreed in
writing by a duly authorized representative of the
Company delivery shall take place when the Goods
or other vehicle or property belonging to the
Customer upon which Services have been performed
are collected from the Company’s premises at the
above address.
5.2 Any delivery dates requested by the
Customer or estimated by the Company are
approximate only and time of delivery shall not be
of the essence of the contract.
5.3 On receiving notification from the Company
that the Goods or said property or vehicle of the
Customer are ready for delivery, the Customer
shall arrange for collection thereof. If the said
Goods, vehicle or property are not removed within
14 days from the date of notification the Company
reserves the right without prejudice to any other
rights which it may have to make reasonable
storage charges and any such Goods, vehicle or
property shall be at the Customer’s risk from the
expiry of the said 14 day period.
5.4 Without prejudice to the provisions of this
paragraph the Company reserves the right to sell
or otherwise dispose of the Goods in the event
that the Customer does not accept delivery of
them. - Property and Risk
6.1 Goods are at the Customer’s risk upon
delivery in accordance with clause 5.1.
6.2 Any vehicles materials or other property
belonging to the Customer and upon which the
Company is to provide Services shall be kept at
the sole risk of the Customer and it is the
responsibility of the Customer to ensure that
their vehicles and/or other property are fully
insured for all risks, including third party risks
arising out of the Customer’s liability for damage
caused by the Customer’s vehicles, property,
themselves or their employees, whilst on or about
the premises of the Company.
6.3 The Goods shall remain the property of the
Company until such time as payment in full has
been received by the Company for the Goods
together with any interest payable under clause
4.2 above and any other sum payable in respect of
the Goods under the contract. If the payment is
tendered by cheque or other negotiable instrument
the Company shall not have been paid the amount
tendered until the cheque or other instrument has
been honoured and the amount credited to the
Company’s bank account. The Customer acknowledges
that until such time, it is in possession of the
Goods solely as bailee for the Company and that
the Goods are at its risk. For the purpose of
recovery of the Goods the Company may enter upon
any premises where they are situated, or are
reasonably thought to be situated, and may
repossess the same.
6.4 Subject to any agreement to the contrary,
the Company has the right to exercise a general
lien upon any vehicle, property and equipment
whilst in or upon the Company’s premises until
such time as any monies due to the Company from
the Customer in respect of such vehicle, property
and equipment whether on account of storage
charges, work done or otherwise shall be paid.
6.5 Acceptance by the Company of goods
(including vehicles and/or their engines and
equipment) for repair or other treatment or
storage are subject to the provisions of the Torts
(Interference with Goods) Act 1977, which confers
on the Company as bailee a right of sale
exercisable in certain circumstances such sale
will not take place until the Company has given
notice to the Customer in accordance with the said
Act. For the purposes of the said Act it is
hereby recorded that:-
(a) Goods for repair or other treatment
are accepted by the Company on the terms that the
Customer shall take delivery of the goods in
accordance with clause 5.1 of these Conditions
when the repair or other treatment is being
carried out; and
(b) The Company’s obligation as
custodian of the Goods ends upon the expiry or
lawful termination of the grant to the Customer of
facilities for storage. - Performance
7.1 All Goods are described subject to any
changes in design or construction or specification
by the Company or its suppliers and shall be
accepted despite any such changes.
7.2 The weights, dimensions, capacities,
performances, ratings and other data included in
catalogues, advertisements and illustrated matter
merely constitute an approximate guide and they do
not form part of any contract and the Customer
agrees to indemnify the Company against any claim
that such descriptive matter amounts to a
representation.
7.3 Where the Company enters into a contract to
carry out work on the basis of instructions or
specifications from the Customer or any agent of
the Customer the Customer warrants the accuracy of
the said instructions and specifications and that
they are in no way misleading and that in the
event of any breach of this warranty, the Company
shall be entitled to charge in full for all Goods
and Services supplied at such rate as it considers
reasonable whether or not in excess of the
contract price.
7.4 If the Company shall be unable to supply
any Goods or Services contracted to be supplied by
reason of the Company or its suppliers ceasing
after the date of the contract to produce or
accept orders for any necessary parts, materials
or other goods, the Company shall give notice
thereof in writing to the Customer whereupon the
Customer shall have the option (such option to be
exercised in writing within twenty-eight days from
the receipt of the notice thereof following which
such options shall cease and the contract
forthwith determined without any liability
whatsoever on the part of the Company but subject
to the provisions of paragraph 7.3 above) to
require the contract to be amended by the
substitution therein of such other parts,
materials or goods as the Company shall recommend
and in such case the price shall be amended as the
Company may consider reasonable and in all other
respects the contract shall continue in full force
and effect. - Warranty
8.1 The Customer shall carry out a thorough
inspection of the Goods or vehicles upon which
Services have been performed within a reasonable
time after their delivery and shall give written
notification to the Company at the above address
forthwith of any defects which a reasonable
examination would have revealed. In the case of
other defects, the Customer shall give written
notification of defects in the Goods or the
quality of Services provided within twelve months
from the date of delivery.
8.2 Subject to compliance with the obligations
in paragraph 8.1 above, which shall be a condition
precedent to the Company’s liability, the Company
will repair or replace (at its option) any
components of the Company’s manufacture which
failed due to faulty materials or workmanship. In
the case of components or products not of the
Company’s manufacture, but supplied by the Company
as part of a contract or order, the Company will
assign to the Customer its rights (where such
rights are capable of assignment) against its
supplier and those rights shall be taken in
extinction of and substitution for any rights
which the Customer would otherwise have had
against the Company.
8.3 The Company shall use all reasonable
commercial endeavours to deliver the Goods or
complete the provision of Services at a time or
date agreed with the Customer. In the event of
the Company’s failure to meet such a date for any
reason it shall not be liable for any resultant
loss or damage suffered by the Customer and nor
shall this constitute a breach or repudiation of
the contract.
8.4 The Goods shall be supplied with the
benefit where the same is applicable and where
such benefit is capable of being passed on to the
Customer of the manufacturer’s or supplier’s
warranty.
8.5 The warranties given by the Company under
sub-clauses 8.1 and 8.2 above shall not apply to
the extent that:-
(a) damage is caused by accident or
normal wear and tear or by any act, default or
misuse of the Goods by the Customer or any third
party or by failure to follow any instructions
supplied with the Goods;
(b) since delivery of Goods have been
altered, modified or repaired other than at the
Company’s premises or by a third party not
expressly nominated or approved in writing by the
Company.
8.6 Subject to paragraph 8.1, 8.2, 8.3 and 8.5
above all Goods to be supplied shall be supplied
with the benefit where the same is applicable of
Section 12 of the Sale of Goods Act 1979 and
Section 2 of the Supply of Goods and Services Act
1982 and all Services shall be provided with the
benefit where the same is applicable of Section 13
of the Supply of Goods and Services Act 1982 but
such Goods and Services are otherwise not supplied
with or subject to any condition, warranty or
other term whether expressed or implied unless
specifically agreed by the parties in writing or
in these conditions.
8.7 In no circumstances except in respect of:-
(a) death or personal injury arising
from the negligence of the Company; or
(b) any liability arising under Part 1
of the Consumer Protection Act 1988,
shall the Company’s liability (in contract
or in respect of negligence or otherwise) to the
Customer arising under or out of or in connection
with any contract for Goods supplied or Services
provided hereunder exceed the invoice value of the
components replaced or repaired and the Company
shall not be liable for any consequential loss or
damage howsoever caused. It shall be the duty of
the Customer to insure against such consequential
loss and to hold the Company harmless therefore. - Assignment and Termination
9.1 The Customer may not assign the benefit or
burden of this contract or any of its rights
herein without the prior written consent of the
Company.
9.2 This contract may be terminated by the
Company (without prejudice to any other remedy it
may have) forthwith by notice in writing to the
Customer or if:-
(a) the Customer is in breach of the
terms of these conditions and has failed to remedy
such breach for 30 days after written notice of
the breach has been given; or
(b) the Customer (being an individual)
dies or has a bankruptcy order made in respect of
him or if the Customer (being a body corporate)
goes or is put into liquidation otherwise than by
voluntary liquidation for the purpose only of
amalgamation or reconstruction or shall enter into
an arrangement or composition with its creditors
or if a receiver, administrative receiver or a
similar officer is appointed in respect of the
Customer’s assets or undertaking or any part
thereof; or
(c) the Customer has failed to pay any
sum due hereunder to the Company for a period in
excess of 30 days from the date of invoice.
9.3 The Company may suspend performance of any
contract for the sale of Goods or supply of
Services incorporating these terms in the event
that the Customer is in breach of any other
contract with the Company until such time as any
such breach has been remedied to the reasonable
satisfaction of the Company. - Force Majeure
If the Company is prevented or hindered from
carrying out its obligations hereunder by
circumstances beyond its reasonable control
including (but not by way of limitation) any
delays howsoever caused on the part of its
suppliers or sub-contractors the Company may at
its option at any time suspend performance until a
reasonable time or after removal of the cause
preventing or hindering performance or upon giving
30 days written notice to the Customer to
terminate the contract without liability for
damages or costs. - Law
These conditions shall be construed in accordance
with the laws of England and the parties submit to
the exclusive jurisdiction of the English Courts.