TERMS AND CONDITIONS OF BUSINESS
DEFINITION
COMPANY means White Hill Commercials Ltd
CUSTOMER means the purchaser of goods or services from the COMPANY
CONTRACT means these terms and conditions together with the INVOICE
QUOTE means the specifics of the services offered and prices to be confirmed within 24 hours of receipt to the COMPANY by the CUSTOMER
INVOICE means the document issued by the COMPANY to the CUSTOMER containing the specifics of the services and prices, CONTRACT has been entered by both the COMPANY and the CUSTOMER on receipt of the INVOICE
SERVICES means the sale of Goods by the COMPANY to the CUSTOMER and/or the exportation of the Goods
GOODS means items sold by the COMPANY to the CUSTOMER and/or the items to which any business under the CONTRACT relates
GENERAL INFORMATION, GOVERNING LAW AND JURISDICTION
All Quotes and Contracts and all matters arising out of or in connection therewith shall be subject to English Law and the parties hereby submit to the exclusive jurisdiction of the Courts of England.
Unless the Company agrees in writing, these conditions of supply shall govern the sale of goods or supply of services by the Company to the Customer and the Company shall not be bound by any variation, waiver of or addition to these conditions of the Customer.
Unless the Company agrees in writing, the Company accepts no liability for any description, pricing or any other erroneous declaration, however stated, within the website and the company accepts no liability for any losses incurred by any party upon reliance on such information.
CONTRACT
1.1 The Contract will commence once the Invoice has been produced by the Company.
1.2 The services will be detailed on the Invoice from the Company to the Customer.
1.3 It is the Customers responsibility to ensure that all the details contained on the Quote are true and correct. The Customer must advice the Company of any errors within 24 hours of receipt.
1.4 The Customer will be deemed to have accepted the Quote if the Company is not informed within 24 hours and the invoice will be produced.
1.5 The Contract will continue until all sums due under the contract terms have been paid and until such time as the goods are delivered to the Customer.
1.6 If there is a conflict between the terms contained in the conditions and the terms of the order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail.
1.7 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
1.8 Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
1.9 Nothing in these conditions purports to limit or exclude any liability for fraud.
PRICES AND PAYMENT
2.1 The price (exclusive of VAT which shall be charged at the prevailing rate) for the Goods shall, subject to written agreement to the contrary be the price quoted by the Company and payment shall be made by the Customer before dispatch of the Goods or (in the case of services) before performance. The Company is entitled to add any increases in price prior to delivery in accordance with clause 2.2 below.
2.2 The Company's prices may be varied at any time, at the Company's discretion, for any increases in costs incurred by the Company after the date on which they were quoted, from fluctuations(including currency variations) in the cost of materials, equipment, labour, transport, shipping or utilities raising from whatever cause, any alterations in specifications or quantities or production, delivery or performance schedules or any suspension of work requested by the Customer.
2.3 The Customer acknowledges that the Company will require a deposit from the Customer (unless the Company provides it's written consent to the contrary) of a proportion of the price, see clause 2.4.
2.4 The Customer is to pay the Company a 25% non refundable deposit within 3 days of the invoice date. If the Customer fails to pay the Company said deposit within the first 3 days the Goods will be repossessed by the Company and made available for re-sale. The Customer is to pay the Company the balance for the Goods/Services as set out on the invoice without set off or deduction within 14 days of the invoice date, unless other terms are agreed in writing by the Company prior to invoice. Payment will only be deemed to have been made when the Company is in receipt of cleared funds in their bank account from the Customer. Bank account nominated by Company. If the balance fails to be made before the due date on the invoice the Goods/Services will be repossessed by the Company and be made available for re-sale, see clause 2.5 with regards to non refunable deposit.
2.5 Unless the Company agrees in writing, all deposits paid (of any amount) will be deemed to be made on a non refundable basis. The Customer understands, acknowledges and agrees that if he fails to pay the Company the remaining amount due within the 14 days (or due date on the invoice) said non refundable deposit is forfeited and the Company shall be entitled to reposses the Goods/Services and be made available for re-sale by the Company. If the buyer fails to complete full payment within the Contract dates stated on the Invoice, and breaks the terms and Conditions of the Contract, any monies paid will be deemed as non refundable and the Company shall be entitled to repossess the Goods and be made available for resale by the Company
2.6 The Customer shall pay the Company full payment before the Goods are delivered to the UK port for export or the Goods are collected from site, unless agreed in writing by the Company. All trucks will remain on our website until the Customer has paid the Company in full for the goods invoiced. If any export Customer requires the Goods to leave the Company's premises for loading to another UK address, before shipping, the Company will charge vat (at the prevailing rate). The vat will be refunded back to the Customer to the original bank account that it was paid from, once the Customer provides the Company with the surrendered non negotiable bill of lading as proof of export, ( H.M. Revenue and Customs time restrictions apply to this refund policy).
2.7 In the event that any amounts are overdue for payment to the Company from the Customer, all amounts invoiced to the Customer shall forthwith become due for payment and recoverable by the Company. The Company may set credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
2.8 The Company shall have a lien on all Goods (including materials supplied by the Customer on which the Company has carried out or is to carry out work) in the Company possession for all sums due at any time from the Customer, on any account and shall be entitled to keep possession of or at its option to sell or dispose of the same as agent for and at the expense of the Customer and apply any proceeds in and towards the payment of such sums due. No rights are granted to any third party to enforce any rights relating to the supply of Goods and Services by the Company.
2.9 All charges and costs (including but not limited to storage charges) associated with the Company exercising its right under this clause will be for the Customers account.
2.10 Upon accounting to the Customer for any remaining balance after payment of any sum due to the Company, and for the cost of sale, disposal or deal, the Company shall be discharged of any liability whatsoever in respect of the goods and documents.
GOODS
3 The description and quantity of the Goods and any works carried out by the Company on the Goods ("the Company's Works") shall be set out in the written quotation provided by the Company to the Customer in the absence of a written quotation the verbal description provided by a director will be used.
3.1 To the extent that the Goods are provided in accordance with a specification provided by the Customer, the Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses ( including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with any claim made against the Company for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Company's use of the specification. This clause 3.1 shall survive termination of the Contract.
3.2 The Company reserves the right to amend the specification if required by any applicable statutory or regulatory requirement, and the Company shall notify the Customer in any such event.
TERMINATION AND SUSPENSION
4 If the Customer fails to make any payment, when due or defaults in any of it's obligations under any contract for the supply of goods by the Company, or any other agreement with the Company. If the Customer goes into liquidation, bankruptcy or makes a voluntary arrangement with it's creditors or appoints a receiver or administrator, the Company shall, without prejudice to any other remedy, be entitled at it's discretion, without liability to the Customer, by giving the Customer written notice at any time or times, to suspend its performance of or terminate such Contract.
4.1 The rights of the Company shall not be prejudiced or restricted by any indulgence of forbearance extended to the Customer and no waiver by the Company in respect of any breach shall operate as a waiver in respect of the same or any subsequent or other breach.
4.2 If the Customer fails to pay or take delivery of the Goods or materials on which the Company has performed work on, when tendered or (as applicable) to provide adequate delivery instructions or to collect them when notified that they are available for collection, or fail to ship for export out of the UK when requested by the Company (on first available vessel leaving the UK), the Company, at it's discretion, may exercise any of the following rights namely:
i) to store the Goods or materials at the risk of the Customer.
ii) to require the Customer to pay all storage,transportation, handling or other charges (including expenses in connection with the delay or detention of the vehicles) incurred by the Company as a result of such failure and;
iii) to require the Customer to pay for the Goods (including any work) as though delivery or performance had been completed.
STORAGE CHARGES
5.The Company will charge the Customer storage charges at a rate of £50.00 per day per truck for Goods that remain at the Company's premises, if not shipped when requested, or payment is not received for work carried out by the Company on the Customer's own vehicle within the payment terms stated on our terms of sale and invoice.
WARRANTY
6. Unless otherwise specified in the Contract between the Company and the Customer, all Goods are sold as seen and no warranty is implied or given, the Customer having had every opportunity to inspect, or have someone inspect on their behalf and examine the vehicle, including a road test of sufficient length prior to entering the Contract.
6.1 In certain circumstances an individual warranty covering specific items may be given in writing only by a director in such cases the warranty given by the Company is subject to the following conditions:
6.1.2 The Company shall be under no liability in respect of any defect in the Company's Works arising from fair wear and tear, wilful damage,negligence, abnormal working conditions,failure to follow the Company's recommendations or from misuse or alteration or repair of the Company's Works without written approval or any discrepancy which results from any design, specification, advise, information, details or materials (including "free-issue" items) supplied by or on behalf of the Customer. If any exported Goods are altered in any way by the Customer or their drivers once collected from the destination port and in their possession i.e. tachograph disconnection, speed sensors removed or any other alterations to the Goods, the Company shall be under no liability in respect of any defects caused by such alterations.
6.1.3 Unless otherwise agreed in writing the Company's obligations to repair any such defect shall only apply if the Goods are made available by the Customer at the Company's premises.
6.1.4 The above warranty applies exclusively to the Company's Works and does not extend to Goods not manufactured by the Company (or to parts, materials or equipment comprised therein to the extent the same does not form part of the Company's Works) in respect of which the Company shall, to the extent that it is able to do so, assign to the Customer the benefit of any warranties given to the Company by the manufacturer or the Company's supplier. If the manufacturer or the Company's suppliers request any returns this is at the expense of the Customer.
6.2 Unless otherwise specified in writing by the Company all recorded milometer readings are not warranted.
6.3 The Company shall not be liable for any loss or damage suffered by the Customer once the vehicle has been delivered to the UK premises chosen by the Customer, the UK port chosen by the Customer or the Company up to the point of delivery (this does not include the point upto being loaded on the vessels) or collected from site, this is to include vehicle recovery, cost of hiring alternative vehicle or loss of revenue.
INSPECTION
7 The Customer will be able to inspect exported Goods on arrival at destination port, any queries regarding said Goods should be brought to the attention of the Company in writing within 1 day of arrival in destination port. Customers attention is drawn to clauses 6.3 and 10.1.
7.1 UK Customer's will have had every opportunity to inspect and test drive the Goods before invoice. They will be able to inspect the Goods on delivery to the location of their choice, any queries must be brought to the attention of the Company directors before the Company's driver leaves their chosen delivery destination, and should be then put in writing to the Company.
7.2 Inspection of Goods means the superficial process of confirmation that the marks and numbers in bulk in open cargo and container/seal numbers of containerized cargo are in accordance with the particulars provided in the goods declaration or bill of lading.
PART EXCHANGE
8 In certain circumstances the Company may allow part of the price of the Goods to be paid by the Customer delivering a used vehicle to the Company, in which case the following provisions shall apply:
8.1 The used Goods shall be delivered to the Company's premises at such a date and time as reasonably notified by the Company.
8.1.2 The used Goods shall be delivered to the Company in the same state of repair and condition as it was initially examined by the Company, subject to normal usage between examination and delivery.
8.1.3 If such used Goods are subject to any Encumbrance whatsoever, the Customer must provide the Company with full details of such Encumbrance and the Company shall be entitled to reduce the allowance provided in respect of the used Goods to allow the Company to satisfy the Encumbrance.
8.1.4. The Customer warrants
a. The particulars of the used goods provided are true and accurate.
b. The used Goods have not been involved in any major accidents and details of any other accidents should be disclosed to the Company
c. The used Goods are of satisfactory quality within the meaning of the Sale of Goods Act 1979.
d. The used Goods are fit for purpose and any purpose held out by the Customer.
8.2 The ultimate discretion to accept any used Goods lies with the Company and the Company shall be entitled to reject the used Goods if (but not limited to) circumstances whereby the provisons of clause 8 are not satisfied to the satisfaction of the Company.
TITLE AND RISK
9 Legal and beneficial title to any vehicle or Goods shall not pass to the Customer but shall remain with the Company until payment in full under the relevant invoice or invoices shall have been made to the Company, for the Goods or Services supplied by the Company to the Customer, whether or not risk has been passed to the Customer.
9.1 Until such time as title in the Goods passes to the Customer, the Company shall have the right at any time on demand to enter any premises where the Goods are located for the purpose of inspecting or repossessing them, to repossess or otherwise recover the Goods (without being liable for any damage thereby occasioned) and sell all or any of the Goods and thereby terminate (without any liability to the Customer) the Customer's rights to use or sell them.
9.2 The Company shall; without prejudice to any other remedy, be entitled to maintain an action for the price of the Goods although title in them has not passed to the Customer.
9.3 The Company transfers to the Customer only such title and rights of use as the Company has in the Goods and in the case of material provided by any third party shall transfer only such title and rights as that party and has transferred to the Company.
9.4 The Customer must insure the goods from the date of collection.
9.5 Risk in the Goods shall pass to the Customer on delivery or unloading of Goods at the Location.
9.6 For the avoidance of doubt:
9.6.1 If the Customer requires the Goods to be delivered to a location outside the United Kingdom, the Location shall be the port at which the Goods are to be shipped to the Customer.
9.6.2 If the Location is the Company's address, risk in the Goods shall still pass in accordance with clause 9.5, even if the Goods are still located at the Company's address. It is therefore important that the Customer collects the Goods as soon as possible.
INDEMNITY AND INSURANCE
10 The Customer shall be responsible for and shall indemnify and hold harmless the Company against any and all claims, proceedings, costs, damages, liabilities and expenses (including, without prejudice to the generality of the foregoing, demurrage and any other costs relating to shipping and/or port charges; all duties, taxes, imposts, levies, deposits, any outlays of whatsoever nature levied by any authority in relation to the goods) arising from any instructions, data, drawings, specifications, tooling, equipment, materials (including "free-issue" items), services or other items supplied by or on behalf of the Customer.
10.1 The Company shall insure any Goods up to the point of delivery at the location of the Customers choice. For the avoidance of doubt, if the Customer requires the Goods to be delivered to a location outside the United Kingdom, the location shall be the port at which the Goods are to be shipped to the Customer and the Company shall not be required to insure the Goods up to the point that they are loaded onto a vessel.
CLAIMS AND DISPUTE RESOLUTION
11 The Company shall have no liability in respect of any claim by the Customer under these conditions unless:
11.1 Notice of the claim is given to the Company in writing , shall include reasonable information as to the nature of the dispute and claim, and;
11.1.2. The Customer has afforded the Company reasonable opportunity and facilities for the investigation of the claim and the making good of any discrepancy or defect and complied with any request by the Company for photographic or other evidence of or reports relating to the alleged defect or maintenance or operating records and, if the Company so requests, the return of any Goods for examination or rectification by the Customer, the cost of transportation to be borne by the Customer but credited by the Company if the claim is accepted; and:
11.1.3 The Customer has paid the full amount of all invoices due in respect of the Goods and all other Goods or Services supplied by the Company prior to the date of the claim.
11.2 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
11.2.1 Within seven days of service of the notice, the parties shall meet to discuss the dispute and attempt to resolve it.
11.2.2 If the dispute has not been resolved within 14 days of the first meeting of the directors under clause 11.2.1 then the matter may be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules.
11.3 Until the parties have completed the steps referred to in clauses 11.2 and 11.2.2., and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration except that either party may at any time seek urgent interim relief from the courts or emergency arbitrator relief.
LIMITATION OF LIABILITY
12 The extent of the parties' liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be set out in this clause 12.
12.1 Subject to clauses 12.4.and 12.5 the Company's total liability shall not exceed 110% of the sums paid by the Customer to the Company under or in connection with the Contract.
12.2. Subject to clauses 12.4 and 12.5 the Company shall not be liable for consequential, indirect or special losses.
12.3 Subject to clauses 12.4 and 12.5 the Company shall not be liable for any of the following ( whether direct or indirect):
12.3.1 loss of profit;
12.3.2 loss or corruption of data;
12.3.3 loss of use;
12.3.4 loss of production;
12.3.5 loss of contract;
12.3.6 loss of opportunity;
12.3.7 loss of savings, discount or rebate (whether actual or anticipated);
12.3.8 harm to reputation or loss of goodwill;
12.4 The limitations of liability set out in clauses 12.1 and 12.3 shall not apply in respect of any indemnities given by either party under the Contract.
12.5 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
12.5.1 death or personal injury caused by negligence;
12.5.2 fraud or fraudulent misrepresentation;
12.5.3 any other losses which cannot be excluded or limited by applicable law.
CUMULATIVE REMEDIES
13 The rights and remedies provided in the Contract for the Company only are cumulative and not exclusive of any rights and remedies provided by law.
ASSURANCE
14 The Customer shall at the request of the Company, and at the Customer's own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
FORCE MAJEURE EVENT
15 Force majeure event means any circumstances not in a party’s reasonable control.
15.1 If either party is prevented, hindered or delayed in or from performing any of its obligations under this contract by a Force Majeure Event, the party so affected shall not be in breach of Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.2 The Company shall not be liable for any delay due to war,civil unrest, riot, strike, lock out due to labour disputes ( whether or not at the Company's works), acts of civil or military authorities, fire, flood, earthquake or shortage of supply, breakdown or failure of plant or machinery, lack or failure of transportation facilities or the supply of labour, materials or power and the time for performance shall be extended by the period of such delay.
TIME
16 Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Customer's obligations only.
DELIVERY DATES AND VARIATIONS
17 Delivery dates where given are estimated in good faith but are approximate. Although the Company will use all reasonable endeavours to adhere to estimated delivery dates, the Company will not guarantee such dates and it is a term of the Contract that in respect of delivery it is not of the essence.
17.1 In the event of any variation suspension or delay of work caused directly or indirectly by the Customer, whether with or without the consent of the Company, the Company shall be entitled to increase the price accordingly but without prejudice to the Company's other rights or remedies.
NOTICES
18 Any notice or other communication given by a party under these conditions shall:
18.1 be in writing, in english, be signed by or on behalf of the party giving it (except for email notices), shall be sent to the Contract address.
18.2 Notices will be deemed received, by the following:
18.2.1 by courier service, by email or by hand (on receipt of a signature from a director at the time of delivery).
18.3 Any reference to time are to be local time at the place of receipt.
18.4 Any change to the contact details of a party on the Contract shall be notified to the other party in accordance to clause 18.1 and shall be effective:
18.4.1 on the date specified in the notice as being the date of such change, or if no date is specified, two business days after the notice is deemed to be received.
18.5 This clause does not apply to notices given in legal proceedings or arbitration.
VARIATION
19 No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by; or on behalf of, the Company by a director.
19.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part,without the Company's prior written consent, which it may withhold or delay at its absolute discretion.
19.2 The Company may assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the consent of the Customer.
WAIVER
20 No failure, delay or omission by the Company in exercising any right, power or remedy provided by law under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
20.1 No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Company shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Company.
20.2 A waiver of any term, provision, condition or breach of the Contract by the Company shall only be effective if given in writing and signed by the Company, and then only in the instance and for the purpose for which it is given.
GENERAL
21 If any term or provison of these conditions is held invalid, illegal or unenforceable for any reason by any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in force and effect as if these conditions had been agreed with and the invalid, illegal or unenforceable provision omitted.
THIRD PARTY RIGHTS
22 Except as expressly provided for in clause 22.1, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
22.1 Any Affiliate of the Company shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
STATUTORY REQUIREMENTS
23 Unless otherwise specifically stated or provided for in the Contract, it is the Customer’s responsibility to ensure that any relevant statutory provisions are complied with, prior to the Customer using any Goods supplied by the Company. Nothing in these Conditions shall affect the statutory rights of the consumer.