TERMS & CONDITIONS: REPAIR AND SERVICING WORK AND SALE OF PARTS
Tempest Vehicle Services Ltd (“the Company”) sells and supplies goods for use in conjunction with vehicles (“Parts”) and also accepts vehicles for repair, for servicing, for examination with a view to estimating or quoting for repairs or for any other purposes (“Repair and Servicing work”) only on and subject to the following terms and conditions (in addition to any terms stated on the face of this document). In these conditions “contract” means the contract for Repair and servicing work and/or for the purchase and sale of the Parts.
1.1 the price of the Parts shall be the Company’s quoted price. Quotations are valid for, and may be accepted by the Customer within 30 days. If no price has been quoted (or a quoted price is no longer valid) the price of the parts shall be as listed on the Company’s price list current at the date of acceptance by the Company of the Customers order.
1.2 In respect of the Repair and Servicing work;
1.2.1 All estimates and quotations made by the Company are based on the cost to the Company of labour, materials and Parts current at the date of the estimate or quotation. If there is an increase in the cost to the Company of labour, materials or Parts which occurs before or after acceptance of the Customers order by the Company or before or after the Company’s quotation is accepted by the Customer the Company shall immediately inform the Customer of such increase and the Customer shall have the right to cancel the contract. If the Customer accepts such increase the Company shall be entitled to charge the Customer accordingly.
1.2.2 If no price is estimated or quoted or if only part of the repair and servicing work covered by an estimate or quotation is carried out, the Company should be entitled to charge the Customer for the repair and servicing work carried out ( including any stripping down leading to determination as to the practicability or otherwise of any repair and servicing work and reassembly) and for any materials at the Company’s prices current at the date of acceptance by the Company of the Customer’s order or the date when the Customer accepts the Company’s quotation.
1.2.3 Estimates and quotations in respect of Repair and servicing work are effective only for 28 days after despatch. If instructions are not received from a Customer in response to an estimate or quotation within 28 days after despatch the Company shall be entitled to charge its usual garaging rates from the date the vehicle was received until its collection. (the Company does not as a general rule make any charge for garaging pending instructions if the repair and servicing work is ultimately carried out by the Company and duly paid for). The sums payable to the Company under these conditions are exclusive of any applicable VAT, which the Customer shall be additionally liable to pay to the Company.
2.1 If it shall be impractical for any reason to carry out any of the Repair and Servicing Work which the Company has been instructed to carry out, the Company shall be entitled to refrain from carrying out or completing such Repair and Servicing Work (notwithstanding that an estimate or quotation may have been given for it) and to carry out only such repair and servicing work as may be practical.
2.2 If through inability to obtain promptly any necessary Parts or materials, Repair and Servicing Work on a vehicle is interrupted for a period exceeding 14 days, the Company shall be entitled to charge its usual garaging rates for the period of interruption, such charge being in addition to any price for the Repair and Servicing Work, Parts and materials.
In respect of Repair and Servicing Work, variations agreed by the Company and the Customer of any kind in any estimate or quotation or in the scope of the Repair and Servicing Work or in the prices chargeable or otherwise whatsoever and howsoever made shall be subject to these conditions, and any such variation shall not be deemed to constitute or create a new or separate contract and the original Contract shall remain in force but as varied.
Every endeavour will be made to carry out Repair and Servicing Work and supply parts by the time desired by the Customer, but time shall not be of the essence of the Contract and the Company shall not be liable for any delay or losses howsoever occasioned.
5. CUSTOMER’S AGENTS
Any repair and Servicing Work and Parts supplied in relation to a vehicle pursuant to the order of any driver of the vehicle in the Customer’s employment or of any person who is acting as the Customer’s agent, shall be paid for by the Customer.
6.1 If the contract is for Parts alone and does not comprise any Repair and Servicing Work, payment for the Parts shall be due within 30 days of the Company’s invoice. The Company shall be entitled to invoice the Customer for the price of the Parts on or at any time after delivery of the Parts unless the Parts are to be collected by the Customer or the Customer wrongfully fails to take delivery of the parts, in which event the Company shall be entitled to invoice the Customer for the price at any time after the Company has notified the Customer that the parts are ready for collection or (as the case may be) the Company has tendered delivery for the parts.
6.2 If the contract comprises wholly or partly Repair and Servicing Work then payment for all elements of the contract including Parts shall be due upon completion of the Repair and Servicing Work and the Company shall be entitled to retain possession of the vehicle until payment is made in full.
6.3 The time for payment shall be of the essence of the Contract.
6.4 If Payment is not made when due then interest will accrue on the Company’s charges from the day after the due date until payment in full is made at a rate of 3% above the Base Rate at HSBC Bank Plc from time to time. Any reference to the charges or account of the Company or monies owing to the Company in these conditions shall include such interest.
6.5 The Company shall be entitled to demand from the Customer a deposit of up to 50% of the estimated charges on account of the price or parts and/or Repair and Servicing Work, and the Company shall be entitled to set off such deposit against the price due from the Customer. Repair and Servicing Work is completed for the purposes of these conditions when written or verbal notice has been given that the vehicle is ready for collection.
7. GARAGING CHARGES
If a vehicle is not collected within 24 hours after the time indicated or agreed for delivery of the vehicle (or if no such time has been indicated or agreed the time the Company notifies the Customer that the vehicle is ready for collection), the Company shall be entitled to charge for garaging the vehicle at its usual rates until collection.
The Company shall have a general lien on any vehicle on which it has carried out Repair and Servicing Work and on any other property in its possession belonging to the Customer for all monies due to or owing to the Company by the Customer on any invoice whatsoever. The Company shall be entitled to charge for garaging the vehicle at its usual rates during any period in which the vehicle is retained by the Company in exercise of any lien.
9. SALE OF GOODS
If the Customer’s indebtedness to the Company is not satisfied within three months of the date of the first account or invoice rendered to the Customer in respect of all or part of that indebtedness, the Company shall, without notice be entitled to sell any property of the Customer’s upon which the Company has exercised its lien by public auction or private treaty (at the Company’s unfettered discretion). The net proceeds of sale shall first be applied to satisfying the indebtedness of the Customer to the Company and any balance shall be paid by the Company to the Customer on demand.
10.1 The Company shall not be obliged to seek confirmation of the authority of any person whom it reasonably believes has the authority of the Customer to collect the vehicle or any parts. Where in any case a person calls to collect a vehicle or parts and the Company has no grounds to believe that they do not have the authority to collect the vehicle or Parts then the Company shall not be responsible to the Customer for any loss or damage if such person in fact had no such authority.
10.2 Delivery of Parts shall be made by the Customer collecting the parts at the Company’s premises at any time after the Company has notified the Customer that the Parts are ready for collection or, if some other place or delivery has been agreed by the Company delivering the parts to that place.
11.1 The Company shall be entitled at its sole discretion to employ or make use of sub-contractors including but not limited to radiator specialists, electrical specialists, coach builders and testers for all or part any part of the repair and servicing work on a vehicle.
11.2 The Company shall be entitled at its sole discretion to employ or make use of sub-contractors and the Company will accept liability for the repair and servicing work carried out by and any materials or parts supplied by, such sub-contractors in accordance with clause 11.1
12. DRIVING OF VEHICLES
For the purpose of any inspection, repair or contemplated repair, testing of the vehicle, taking the vehicle to sub-contractors, demonstrations or other purposes for which the vehicle is accepted, the Customer hereby authorises the driving of the vehicle by the Company its employees, agents and sub-contractors on the public highway and elsewhere.
13. WARRANTIES AND LIMITATIONS ON LIABILTY
13.1 Unless expressly provided in these conditions and except where the Customer deals as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law
13.2 The Company will exercise reasonable care in the selection of best quality parts and materials as are available but provided that it has exercised such care and except where the Customer deals as a consumer (within the meaning of the Unfair Contract Terms Act 1977) the Company shall not be liable for any defects in such parts or materials.
13.3 The Customer shall be entitled (as far as the Company can secure) to the benefit of any warranty to which the Company is entitled as against the manufacturer of parts supplied or as against any sub-contractor engaged by the Company.
13.4 All repair and servicing work carried out by the Company and by any sub-contractor engaged pursuant to clause 11 is only warranted against failure due to defective workmanship for a period of 3 months or 3,000 miles whichever occurs first. The warranty in this clause 13.4 extends only to Repair and Servicing Work actually undertaken and does not cover progressive fault diagnosis. It does not affect any statutory rights of a Customer who deals with the Company as a consumer. All Ford original parts are warranted for 12 months or 12,000 miles whichever occurs first. Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law under the express terms of the Contract, for any consequential loss or damage (including loss of profit), costs, expenses or other claims for consequential compensation whatsoever (whether caused by the negligence of the Company, Its employees or agents or otherwise) which arise out of or in connection with the supply of the parts or their use or re-sale by the Customer, or which arise out of or in connection with the Repair and Service Work accept as expressly provided in these conditions.
13.5 The aggregate liability of the Company in contract, tort (including negligence), statute or otherwise (other than for death or personal injury caused by the negligence of the Company) shall not exceed the price of the parts and Repair Service Work under the contract.
14.1 Subject to clause 14.2 the Company will exercise reasonable care in respect of the safety and security of Customer’s vehicles and other property but, shall be liable for loss or damage to a Customer’s vehicle or other property only if it is proven that such loss or damage was caused by a failure by the Company to exercise such reasonable care.
14.2 The Company shall have no liability for loss of or damage to Customers’ vehicles and other property howsoever caused, including damage caused by lack of reasonable care on the part of the Company, if (a) it is not aware that the time of the damage or loss that the Customer has entrusted or sought to entrust the vehicle or such other property to it; or (b) the vehicle remains on the Company’s premises 48 hours after notification by the Company to the Customer that the vehicle is ready for collection.
15. REMOVED PARTS
All parts removed by the Company from a vehicle in the course of Repair and Servicing Work shall, unless prior written notice to the contrary shall have been given by the Customer, be deemed to be wholly abandoned to the Company with immediate effect and become the Company’s absolute property.
16. RISK AND RETENTION OF TITLE
16.1 Although all parts sold and all parts and materials supplied in the course of repair and servicing work by the Company (‘The Goods’) remain the Company’s property until payment is received in full, risk in them shall pass to the Customer from the time of delivery to the Customer or its agent and the Customer shall keep them properly insured against loss or damage and in the event of such damage or loss occurring shall hold the insurance proceeds on behalf of the Company from the time of delivery to the Customer or its agent on behalf of the Company as trustee for the Company and keep such insurance proceeds separate from any monies or property of the Customer and third parties.
16.2 Notwithstanding delivery and the passing of risk in the Goods, the Goods shall remain the Company’s property until the Customer has paid full price for the Goods and all other sums owing from the Customer to the Company under any contract or on any account together with any interest payable under the relevant contract in respect of the Goods or Repair Servicing Work and any other contract or arrangement or account.
16.3 Until such time as the property in the Goods passes to the Customer.
16.3.1 The Customer shall hold the Goods as the Company’s fiduciary agent and bailee and shall keep them separate from those of the Customer and third parties and keep them properly stored, protected and marked in such a way as they can be identified as the Company’s property. The Customer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Company for the proceeds of sale or otherwise the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties, and in the case of tangible proceeds, property stored, protected and insured. The Company shall be entitled to trace all such proceeds of sale or otherwise of the Goods received by the Customer through any bank, or other account maintained by the Customer.
16.3.2 If the Customer re-sells or uses the Goods the Customer shall assign to recover the proceeds of sale or otherwise of the goods from the third parties concerned to the Company if required to do so in writing by the Company.
16.3.3 (and provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company, at the expense of the Customer, if the Customer fails so to do the Company shall have the right (save in relation to Customers situated in Northern Ireland) forthwith to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods, at the Customers expense.
17. RETURN OF PARTS
The Company will accept the return of parts and give credit for the price subject to the parts being returned in perfect condition within 7 days of the date of collection of the parts by the Customer. The Company reserves the right to make a handling charge of 15% of the value of any parts so returned. Returns are not accepted of non-stock items which have been specifically ordered by the Company for the Customer.
18. INSOLVENCY OF CUSTOMER
18.1 This clause applies if;-
18.1.1 The Customer (being a Company ) makes any voluntary arrangement with its creditors, or an application is made or a person becomes entitles to appoint an administrator, administrative or receiver or goes into liquidation (other than for an amalgamation or reconstruction) or ( being as an individual) becomes bankrupt: or
18.1.2 the encumbrancer takes possession of or a receiver is appointed over, any of the property or assets of the Customer: or
18.1.3 the Customer ceases, or threatens to cease, to carry on business or is unable to pay its debts as they fall due: or
18.1.4 the Company, reasonably apprehends that any of the events mentioned above is about to occur to the Customer and notifies the Customer accordingly: or
18.1.5 the Customer takes any similar action in consequence of the debt.
18.2 if this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the contract or suspend any further deliveries and repair and servicing work under the contract without any liability to the Customer and if parts have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
19.1 any notice or other communication given or made under or in connection with these conditions shall be in writing and shall be given or made to the Customer or the Company, as the case may be, at its last known address and, if by facsimile sent to the facsimile number as either party made from time to time notify to the other. Every notice or other communication, if so addressed shall be deemed to have been duly given or made, if delivered by hand, upon delivery at the address of the relevant party of sent by prepaid first class post, two business days after the date of posting and, if transmitted by facsimile, at the time of transition. Notice may not be validly served by electronic mail
19.2 no waiver by either party of any breach of the contract shall be considered as a waiver for any subsequent breach of the same or any other provision.
19.3 the Company may at any time, without limiting any other rights and remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
19.4 headings in these conditions are for convenience only and shall not affect their interpretation.
19.5 if any provision or part of any provision of these conditions is found by a court or other competent authority to be void or unenforceable, such provision or part of a provision shall be deleted from these conditions and the remaining provisions or part of the provision shall continue to full force and effect.
19.6 Save where the context forbids, the expression, “vehicle” used in these terms includes any car, lorry, van, trailer, caravan, invalid carriage or cycle, and as a separate unit or otherwise, any engine, axle, gear box, clutch, generator, starter, battery and each and every component on a vehicle.
19.7 No alterations or qualifications of these printed conditions shall be effective unless made writing and signed by each party or a duly authorised representative of each party.
19.8 A person who is not party to these terms shall not have any rights under or in connection with them under the contracts (Rights of Third Parties) Act 1999.
19.9 These terms shall be governed by the laws of England and parties submit to the exclusive jurisdiction of the English courts.
20. DISTANCE SELLING REGULATIONS 2000
By law you have the right to cancel this contract at any time from the date of order up to within seven working days following your taking delivery of the goods. Notice of this cancellation must be sent to the Company at the address show at the foot of these Terms and Conditions for the attention of the Franchise General Manager, by recorded delivery mail and this notice must be received within seven working days from the date of delivery.
20.2 RETURN OF PARTS
On receipt of this notice of cancellation the Company will contact you to confirm arrangements for return of the goods. The cost of collection will be at your expense and will be limited to a flat fee of £100 + VAT, plus a charge of £5 + VAT per mile for the distance recorded between the Company’s premises and your address as shown on ViaMichelin.com web site or another proprietary web based distance calculator of the supplier’s choice. You are required to make the part or vehicle available for collection at a pre-determined date and time.
20.3 MILEAGE & CONDITION
On collection/delivery the goods must be in the same condition as they were when delivered. This is to say that they must not have suffered any deterioration. Any deterioration recorded at the time of collection will be valued when the goods arrives at the Company’s premises and details of these costs will be notified to you.
Once safe receipt of the goods has been established by the Company a refund will be processed. This refund will be executed in the same way that payment was made originally by you and will be made 30 days following delivery. Should any of the above conditions fail to be met then the deductions, as specified, will be made from the refund accordingly. The cost of collection will also be deducted.
Should you have any complaints that you wish to raise with the Company regarding this transaction or any other matter please address them to the address at the foot of these Terms and Conditions, for the attention of the Franchise General Manager.