Gowrings Mobility Group Terms and Conditions of Supply

Please read these Terms carefully, as they set out our and your legal rights and obligations in relation to the Products that we sell.

 

1. Definitions and Interpretation

1.1 In these Terms:

Affiliate” means a company, firm or individual that Controls, is Controlled by, or is under common Control with the relevant company or firm;

Business Day” means any weekday, other than a bank or public holiday in England;

Business Hours” means between [09:00] and [17:30] on a Business Day; “Confidential Information” means:

(a) any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as “confidential”, described as “confidential” or reasonably understood to be confidential; and

Contract” means a contract between the parties for the sale and supply of Products entered into in accordance with Clause [3];

Control” means:

(a) the legal power to directly or indirectly control the management of a company, firm or other entity;

(b) the right to select the majority of the directors (or their equivalent) of a company, firm or other entity; and/or

(c) ownership of more than 50% of the voting shares in a company; and ” Controlled” will be construed accordingly;

Customer” means the customer for the Products as specified in the sales order.

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Prices” means the [Supplier’s standard list] prices for the Products as [sent by the Supplier to the Customer / published on the Supplier’s website] from time to time;

Product Liability Claim” means any claim, dispute and/or proceedings resulting from or arising in connection with any death, personal injury or damage to property caused in whole or part by a failure of the Products to comply with the warranties in Clause [8];

Products” means the products which may be or are purchased by the Customer from the Supplier under these Terms;

Supplier” means Gowrings Mobility Group Ltd, a (limited company) incorporated in [England and Wales] (registration number 2910640) having its registered office at Daytona Drive, Thatcham, Berkshire, RG19 4ZD and

Terms” means these terms and conditions of supply.

1.2 In these Terms, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of these Terms.

1.4 In these Terms, “persons” include companies, partnerships, limited liability partnerships, unincorporated associations, and trusts.

1.5 The ejusdem generis rule is not intended to be used in the interpretation of these Terms; it follows that a general concept or category utilised in these Terms will not be limited by any specific examples or instances utilised in relation to such a concept or category.

2. These Terms

2.1 These Terms contain the only conditions upon which the Supplier will deal with the Customer, and they govern all Contracts to the exclusion of all other terms and conditions.

2.2 Without prejudice to the generality of Clause [2.1], any reference to any of the Customer’s terms and conditions in any document forming part of or evidencing a Contract will not have the effect of incorporating any such terms and conditions into the Contract, nor of forming any other contract between the parties for the purchase of the Products.

2.3 The Customer hereby waives any right it might otherwise have to rely upon the Customer’s terms and conditions referred to in Clause [2.2] and the other terms and conditions referred to in Clause [2.1].

3. Contracts

3.1 Each written quotation for the supply of Products given by the Supplier to the Customer will be deemed to be an offer by the Supplier to supply Products to the Customer subject to these Terms.

3.2 In order for

a Contract to come into force:

(a) the Supplier must submit a written quotation to the Customer; and

(b) the Customer must send to the Supplier its written acceptance of that quotation, together with its written acceptance of these Terms, within [5] Business Days of the date of issue of the quotation;

and upon the receipt by the Supplier of the written acceptance of the quotation in accordance with this Clause [3.2] a Contract will come into force between the parties.

3.3 Each order for Products given by the Customer to the Supplier will be deemed to be an offer by the Customer to purchase Products from the Supplier subject to these Terms.

3.4 In order for a Contract to come into force:

(a) the Customer must submit an order to the Supplier and must give to the Supplier its express written acceptance of these Terms; and

(b) the Supplier must send to the Customer an order confirmation; and upon the issue of an order confirmation by the Supplier, a Contract will come into force between the parties.

3.5 The Supplier may cancel a Contract insofar as it relates to particular Products, by giving to the Customer written notice of cancellation at any time before [delivery/collection] of those Products, if a Force Majeure Event prevents the [delivery/collection] of the Products under the Contract on the agreed date or during the agreed period.

3.6 The Supplier may increase the Price of Products under a Contract, by giving to the Customer written notice of the increase at any time before [delivery/collection] of those Products, if there is a material increase in the cost to the Supplier of obtaining [or delivering] the Products, providing that any increase under this Clause must not exceed the amount of the increase in cost to the Supplier.

4. Delivery

4.1 Unless otherwise agreed in writing:

(a) all Products will be delivered by the Supplier to the Customer’s premises

(b) the Supplier will be responsible for arranging loading, carriage, transport, unloading and insurance for the Products

(c) the Supplier will be responsible for paying all costs relating to loading, carriage, transport, unloading and insurance of the Products to the first delivery location only; and

(d) risk and insurance liabilities of the Products will pass from the Supplier to the Customer upon first delivery to the Customer.

4.2 If the parties agree that [delivery/collection] of the Products under a Contract will be by instalments, each instalment will constitute part of a single Contract and not separate Contracts.

4.3 Any date or dates for [the delivery/the making available for collection] of the Products agreed by the parties as part of a Contract will not be of the essence of the Contract.

4.4 The Customer will use (all) reasonable endeavours to agree a delivery date for the product within 5 working days of request.

5. Title

5.1 Legal and equitable title to the Products will pass from the Supplier to the Customer upon the later of:

(a) [delivery/collection] of the Products; and

(b) receipt by the Supplier of all amounts due from the Customer to the Supplier [under the relevant Contract / under any Contract [or other agreement]].

5.2 Until the title to the Products has passed to the Customer:

(a) the Customer will hold the Products as fiduciary agent and bailee of the Supplier;

(b) the Customer will: (i) store the Products in a secure, safe, dry and clean environment separately from other products and goods; (ii)ensure that the Products are easily identifiable as belonging to the Supplier; (iii) not deface, destroy, alter or obscure any identifying mark on the Products or their packaging; (iv) ensure that no charge, lien or other encumbrance is created over the Products; (v) deliver up the Products to the Supplier upon demand; [(vi) insure the Products on the Supplier’s behalf for their full price against all risks to the reasonable satisfaction of the Supplier (and on request produce to the Supplier such policy of insurance and a receipt for the then-current premium), and (vii) hold all proceeds of the insurance referred to above on trust for the Supplier and not mix them with any other money or pay the proceeds into any overdrawn bank account.

5.3 The Supplier shall be entitled without further notice to inspect or recover possession of any Products to which it retains title; and the Customer grants to the Supplier and its employees and agents an irrevocable licence to enter at any time any premises where the Products are or may be situated for the purpose of inspecting or removing any such Products the title in which has remained with the Supplier.

5.4 The Supplier may bring an action for the Prices of Products, and any other amounts due under a Contract, notwithstanding that title to the Products has not passed to Customer.

6. Customer Obligations

6.1 The Customer will not:

(a) represent to any person that it is an agent or sole or exclusive distributor of the Supplier;

(b) pledge or purport to pledge the Supplier’s credit;

(c) commit or purport to commit the Supplier to any contracts; or

(d) otherwise, incur any liability or potential liability on behalf of the Supplier.

6.2 The Customer will not take any action or do anything which would or would be likely to damage the reputation or goodwill of the Supplier or bring the Supplier into disrepute.

6.3 The Customer will not without the Supplier’s prior written consent make or give any promises, representations, warranties or guarantees:

(a) on behalf of the Supplier; or

(b) in relation to the Products (other than those set out in a Contract in relation to the Products or otherwise mandatory under applicable law).

6.4 Without prejudice to the Supplier’s obligations under Clause [8], the Customer must comply with all applicable laws, rules and regulations relating to, and must obtain all licences, permits and approvals required in relation to:

(a) the marketing, promotion, and advertising of the Products; and

(b) import, export, distribution, sale, supply, and delivery of the products.

6.5 The Customer will not without the Supplier’s prior written consent alter, modify, disassemble, or reverse engineer any of the Products except as mandated by applicable law.

7. Prices and Payment

7.1 The Supplier may issue an invoice for the Prices under a Contract to the Customer at any time after [the Contract has come into force/the Products have been delivered to the Customer/the Products have been made available for collection by the Customer].

7.2 The Customer will pay the Prices to the Supplier before delivery unless prior written arrangement has been made.

7.3 All amounts payable under a Contract are exclusive of all value-added and other taxes and duties which will be payable by the Customer (except for taxes payable on the Supplier’s net income, which will be payable by the Supplier).

7.4 Prices must be paid by [debit or credit card, direct debit, bank transfer (using such payment details as are notified by the Supplier to the Customer from time to time).

7.5 If the Customer does not pay any amount properly due to the Supplier under or in connection with a Contract, the Supplier may:

a) charge the Customer interest on the overdue amount at the rate of [8]% per year above the base rate of [HSBC Bank Plc] from time to time (which interest will accrue daily until the date of actual payment, be compounded quarterly, and be payable on demand); or

b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

7.6 Any VRB from the Manufacturer has been claimed by the supplier and will not be available to claimed by the customer.

8. Warranties

8.1 The Supplier warrants that:

(a) the Supplier has (or will have at the relevant time) the right to sell the Products;

(b) the Products are free from any charge or encumbrance, subject to Clause [5] [and subject to any other charge or encumbrance disclosed or known to the Customer before the relevant Contract is made];

(c) the Customer shall enjoy quiet possession of the Products, subject to the rights referred to in Clause [8.1(b)];

(d) the Products correspond to any description of the Products supplied by the Supplier to the Customer; however, the Supplier reserves the right to amend the specification without notice should such changes be made by the Original Equipment Manufacturer.

(e) the Products are of satisfactory quality;

(f) are fit for any purpose expressly [or impliedly] [(but not merely impliedly)] made known by the Customer to the Supplier before the relevant Contract is made;

(g) the Products correspond to any sample of the Products supplied by the Supplier to the Customer, and will be free from any defect making their quality unsatisfactory, which would not be apparent on reasonable examination of the sample [Save clause 8.1 (d)];

(h) the Products will comply with all laws, rules, regulations applicable to the marketing and sale of the Products in United Kingdom [and all standards agreed between the parties]; and

(i) the Products will bear all mandatory marks and signs associated with the laws, rules, regulations and standards referred to in Clause [8.1(h)].

8.2 All of the parties’ warranties, liabilities and obligations in respect of the subject matter of each Contract are expressly contained in these Terms or elsewhere in the relevant Contract. Subject to Clause[12.1] and to the maximum extent permitted by applicable law, no other terms concerning the subject matter of a Contract will be implied into that Contract or any related contract.

9. Complaints, Credits and Replacements

9.1 The Supplier will promptly and in any event within [10] Business Days, acknowledge any enquiry or complaint by the Customer relating to the quality, performance and durability of the Products. Full and complete resolution will be made in line with The Supplier’s complaints procedure detailed in their ISO Quality policy (copy available on written request).

10. Product Liability Claims

10.1 Subject to the Customer’s compliance with Clause [10.2], the Supplier hereby indemnifies and undertakes to keep indemnified the Customer against any losses, damages, claims, obligations, liabilities, costs and expenses (including legal fees and costs and expenses incurred in investigating, preparing, defending or prosecuting any litigation, claim, proceeding or demand) arising out of or in connection with any Product Liability Claim, except to the extent that the liabilities, losses, costs, damages and expenses arise as a result of the default of the Customer or any third party.

10.2 The Customer will:

(a) upon becoming aware of an actual or potential Product Liability Claim, notify the Supplier;

(b) provide to the Supplier all reasonable assistance in relation to the Product Liability Claim;

(c) allow the Supplier the exclusive conduct of the Product Liability Claim and all related disputes, proceedings, negotiations and settlements; and

(d) not admit liability in connection with any Product Liability Claim or settle any Product Liability Claim without the prior written consent of the Supplier.

10.3 The Customer will maintain such records of Product sales as may be required to affect a recall of the Products in the event of a Product Liability Claim; and, in such an event the Customer will give such assistance to the Supplier as the Supplier may reasonably require for the purpose of recalling Products.

12. Limitations of Liability

12.1 Nothing in any Contract will exclude or limit the liability of either party for:

(a) death or personal injury caused by that party’s negligence;

(b) fraud or fraudulent misrepresentation on the part of that party; or

(c) any other liability which may not be excluded or limited under applicable law.

12.2 Subject to Clause [12.1] [and without prejudice to the express indemnities in these Terms], the Supplier’s liability to the Customer under or in connection with each Contract, whether in contract or tort (including negligence), will be limited as follows:

(a) the Supplier will not be liable for any: (i) loss of profits,income or anticipated savings, (ii) loss or corruption of any data, database or software, (iii) reputational damage or damage to goodwill,

(iv) loss of any contract or commercial opportunity, or (v) indirect, special or consequential loss or damage;

(b) the Supplier will not be liable for any losses arising out of a Force Majeure Event;

(c) the Supplier’s liability in relation to any event or series of related events will not exceed the total amount paid or (if greater) payable by the Customer to the Supplier under the Contract.

13. Force Majeure

13.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under a Contract (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

13.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under a Contract, will:

(a) forthwith notify the other; and

(b) will inform the other of the period for which it is estimated that such failure or delay will continue.

13.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

14. Contract Term and Termination

14.1 Each Contract will come into force in accordance with Clause [3], and will continue in force until the earlier of:

(a) the later of completion of: (i) [delivery/collection] of all Products; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract; and

(b) the termination of the Contract in accordance with the provisions of this Clause.

14.2 A Contract may be terminated in the following circumstances:

(a) either party may terminate a Contract immediately by giving written notice to the other party if the other party commits any material breach of any term of the Contract;

(b) the Supplier may terminate any Contract immediately by giving written notice to the Customer if the Customer fails to pay to the Supplier any amount due under [the/any] Contract by the due date for payment; and

(c) the Supplier may terminate any Contract immediately by giving written notice to the Customer if the Customer fails to [accept delivery of the Products / collect the Products] on the date agreed in the relevant Contract.

14.3 Either party may terminate any Contract immediately by giving written notice to the other party if:

(a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract);

(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

14.4 The Supplier may terminate any Contract immediately at any time by giving written notice to the Customer if there is a change of Control of the Customer or any parent undertaking or holding company of the Customer.

14.5 If the customer wishes to terminate the contract for any other reason than above, the termination will be subject to a 95% termination fee.

15. Effects of Termination

15.1 Upon termination of a Contract, all the provisions of that Contract will cease to have effect, save that the following provisions of these Terms will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 5, 6.3 to 6.5, 7.5, 9, 10, 11, 12, 15, 16 and 18].

15.2 Termination of a Contract will not affect either party’s accrued rights (including accrued rights to be paid and accrued rights to a remedy for breach of condition or warranty) as at the date of termination.

15.3 After the termination of all Contracts between the parties, the Customer will within [30] days following receipt of a written request from the Supplier:

(a) return to the supplier or dispose of as the Supplier may instruct all documents and materials containing Confidential Information of the Supplier; and

(b) irrevocably delete from its computer systems all Confidential Information of the Supplier.

15.4 After the termination of all Contracts between the parties, the Supplier will within [30] days following receipt of a written request from the Customer:

(a) return to the supplier or dispose of as the Customer may instruct all documents and materials containing Confidential Information of the Customer; and

(b) irrevocably delete from its computer systems all Confidential Information of the Customer.

16. Confidentiality

16.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause.

16.2 Each party will protect the confidentiality of the other party’s confidential information using at least reasonable security measures.

16.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.

16.4 These obligations of confidentiality will not apply to Confidential Information that:

(a) has been published or is known to the public (other than as a result of a breach of a Contract);

(b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party;

Or

(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.

18. General

18.1 No breach of any provision of a Contract will be waived except with the express written consent of the party not in breach.

18.2 If any provision of a Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

18.3 Contracts may not be varied except by a written document signed by or on behalf of each of the parties.

18.4 The Supplier may freely assign its rights and obligations under a Contract without the Customer’s consent [to any Affiliate of the Supplier or any successor to all or substantial part of the business of the Supplier from time to time]. Save as expressly provided in this Clause or elsewhere in a Contract, neither party may without the prior written consent of the other party assign, transfer, charge, nse or otherwise dispose of or deal in a Contract or any rights or obligations under a Contract.

18.5 Each Contract is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation or settlement under or relating to a Contract are not subject to the consent of any third party.

18.6 Subject to Clause [12.1]:

(a) these Terms and Conditions [document(s)] will constitute the entire agreement between the parties in relation to the subject matter of the Contract, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter;

(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into a Contract; and

(c) neither party will have any liability other than pursuant to the express terms of a Contract.

18.7 Contracts will be governed by and construed in accordance with the laws of [England, Scotland and Wales]; alicend the courts of [England] will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with a Contract.

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