ABOUT THIS DOCUMENT
This document sets out the standard terms and conditions for the sale of motor vehicles (the "Standard Terms") of the following companies: (the "Supplier"):
PENTAGON MOTOR HOLDINGS LIMITED, a company registered in England and Wales with company number 05780177 and registered office at Nottingham Road, Derby, Derbyshire, UK, DE21 6HB.
REEVE (DERBY) LIMITED registered in England and Wales with company number 04120259 and registered office at10 Chiswell Street, London, UK, EC1Y 4UQ.
In these Standard Terms: "Charges" means the Prices and all other charges and amounts payable by the Customer under the Contract, as stated in the Contract Terms, and including any additional charges and amounts that arise after the contract is made; "Customer" means the person who has entered into the Contract with the Supplier; "Contract" means the contract which incorporates these Standard Terms; "Contract Description" means any description of the Purchased Vehicle or other Purchased Goods given in the Contract Terms and in any brochure published by the Manufacturer, and any description of the Procured Items or Services given in the other Contract Terms;
"Contract Terms" means all the Contract Terms, including these Standard Terms, as detailed in Clause 3.1; "Defect" means any failure of the Purchased Goods, Procured Items, Replacement Goods, or Services to conform to the Contract Terms, and any damage caused to the Purchased Goods by the Supplier in the course of performing the Contract; "Delivery Address" means the address where delivery is to take place as stated in the other Contract Terms, or if not stated, the Supplier's premises; "Delivery Readiness Notice" means a notice given by the Supplier (whether in writing or orally) under Clause 6.3; "Deposit" means any part payment of the Charges expressed to be a deposit in the Contract Terms, or which is paid by the Customer when the Contract is made; “Fleet Vehicles” means those Purchased Vehicles purchased by a Customer operating as a business or charity under the terms of a Contract "Goods" means the Purchased Goods and any Replacement Goods; "Insolvency Event" means any of the events detailed in Clause 15.2; "Manufacturer" means the manufacturer of any Purchased Goods, Serviced Vehicles, or Replacement Goods;
"Manufacturer Warranty" means in relation to the Purchased Goods or Replacement Goods any warranty or guarantee as to description or quality which the Manufacturer offers directly to the end-customer in respect of original equipment parts, as stated in any Contract Terms, including as advised by the Supplier to the Customer orally prior to the making of the Contract, Purchased Goods which consist of second line parts will not be covered by this warranty, but may be covered by the relevant manufacturer’s own warranty; "New" means the Goods are new, including, in relation to a motor vehicle, that the Customer will be the first registered keeper of the motor vehicle under its Vehicle Registration; "Part Exchange" means, if agreed in the other Contract Terms, the part payment by the Customer of the Price for the Purchased Vehicle, by the sale to the Supplier by the Customer of the Part Exchange Vehicle for the Part Exchange Allowance; "Part Exchange Allowance" means the allowance which the Supplier agrees to give against the Price of a Purchased Vehicle in return for the Part Exchange Vehicle, as stated in the other Contract Terms, as may be subsequently adjusted in accordance with the Contract Terms, including under Clauses 12.3 and 12.8; "Part Exchange Vehicle" means the motor vehicle uniquely identified in the Contract Terms to be sold by the Customer to the Supplier in Part Exchange for a Purchased Vehicle; "Pre-Registered" means that the Purchased Vehicle will have a previous registered keeper before the Customer (typically the Supplier) and the Purchased Vehicle will not have more than 200 miles on the odometer; "Prices" means all prices stated in the Contract Terms, including for the Purchased Vehicle an any other Purchased Goods, for any Procured Items, and for any Services; "Procured Items" means any warranty, service, insurance, licence or other thing to be provided by a third party directly to the Customer, which is to be procured by the Supplier on behalf of the Customer, as detailed in the other Contract Terms, including any Manufacturer Warranty, Vehicle Licence, insurance, or membership of a breakdown recovery service or accident support service; "Provider" means the third party provider of any Procured Items; "Purchased Goods" means any Purchased Vehicle and any other goods, to be sold to the Customer under the Contract, as stated in the other Contract Terms, as separately listed and Priced; "Purchased Vehicle" means any motor vehicle to be sold to the Customer under the Contract, as detailed in the other Contract Terms (including all parts, accessories, equipment and extras forming part of or supplied with it, and not separately itemised as Purchased Goods); "Replacement Goods" means any parts, materials or other goods which are supplied as part of the provision of any Services or in the correction of any Defect, but not Purchased Goods; "Services" means any services to be provided by the Supplier, as detailed in the other Contract Terms, including to prepare any Purchased Vehicle for delivery (such as paint protection and repair of scratches or dents); "Storage Charge" means a reasonable daily charge for storage of any vehicle or other goods, which shall be no less than £15 (including VAT) per item per day; "Used" means the Goods will be used, ex-demo, second-hand, or pre-owned, and in the case of a Purchased Vehicle, will have at least one previous registered keeper; "VAT" means value added tax or any equivalent tax payable in any country in the world; "Vehicle Tax" means vehicle excise duty payable in accordance with Part I of the Vehicle Excise and Registration Act 1994; "Vehicle Licence" means a vehicle licence under Part I of the Vehicle Excise and Registration Act 1994; and "Vehicle Registration" means registration under Section 21 of Part II of the Vehicle Excise and Registration Act 1994.
FORMATION OF CONTRACT AND CONTRACT TERMS
3.1 Contract Terms: The Contract Terms comprise: (a) these Standard Terms; (b) any written proposal, quotation, order form or booklet, or order acknowledgement produced by the Supplier on the basis of which the Contract was made, including any such document signed by or on behalf of the Customer and/or the Supplier; (c) any Supplier website ordering pages completed and submitted by or on behalf of the Customer on the basis of which the Contract was made; (d) any terms specified by the Supplier orally in any telephone call or face to face meeting with the Customer or it's representative; (e) any additional terms which may be applied by the Supplier to any Fleet Vehicles purchased (f) any rights or terms implied by statute or any other law of England and Wales; (g) any subsequent variation to the Contract agreed by the parties, whether orally or in writing. In the event of any conflict, the Standard Terms shall take precedence over the other terms, and anything in writing shall take precedence over anything agreed orally.
3.2 Entire Agreement: The Contract Terms represent the entire agreement between the Customer and the Supplier, and no other terms shall apply. If the Customer is not a consumer, the Customer confirms it has not been induced to enter into the Contract by any representations made by or on behalf of the Supplier, but this will not exclude liability of the Supplier for fraudulent misrepresentation.
3.3 Warranty of Authority: The Customer warrants that it has full power, authority and capacity to enter into and perform the Contract, that all information it has provided is true, accurate and complete, and (if an individual) that he or she is of at least 18 years of age.
3.4 Multiple Purchased Vehicles: If more than one Purchased Vehicle is listed in the Contract Terms, then there shall be deemed to be a separate Contract for the sale and purchase of each such Purchased Vehicle (and all associated Purchased Goods, Procured Items, and Services). For Customers who are not consumers, the Supplier shall be entitled to terminate all contracts between the Customer and the Supplier in the event that the Customer breaches the Contract and the breach justifies termination.
3.5 Finance Companies: If the Customer is a finance company that is purchasing the Purchased Goods for hire or hire purchase to a person who originally selected the Purchased Goods from the Supplier, then the finance company shall ensure that such person complies with the obligations of the Customer under Clauses 5 and 6, and references to the Customer in such Clauses includes references to such person.
3.6 Fleet Vehicles: If the Customer is a business or a charity that is purchasing the Purchased Vehicles as part of a fleet purchase for its business or charitable objectives the terms of this Contract together with any additional terms such as credit, payment and re-delivery arrangements shall apply to such Purchased Vehicles.
SCOPE OF CONTRACT
4.1 Sale and Supply: The Customer agrees to purchase from the Supplier and the Supplier agrees to sell and provide to the Customer the Purchased Vehicle and other Purchased Goods, the Procured Items, and the Services, as stated in the Contract Terms, for the Prices, on and subject to the Contract Terms.
4.2 Part Exchange: If there is Part Exchange, the Supplier agrees to purchase from the Customer and the Customer agrees to sell to the Supplier, the Part Exchange Vehicle, for the Part Exchange Allowance, on and subject to the Contract Terms, conditional on completion of the associated sale and purchase of the Purchased Vehicle.
OBTAINING AND PREPARING THE PURCHASED GOODS
5.1 New, Pre-Registered and Used: The Purchased Goods will be New, Pre-Registered or Used, as stated in the Contract Description. If not so stated, then the Purchased Goods will be New unless it is clear from all the circumstances that they are sold as Pre-Registered or Used, in which case they will be Pre-Registered or Used as the case may be.
5.2 Identification and Procurement: Where the Purchased Goods have already been uniquely identified, including where the Purchased Goods are Pre-Registered or Used, or are to be the motor vehicle or other goods actually seen by the Customer, then the Purchased Goods will be those identified goods. In any other case, the Purchased Goods will be procured by the Supplier from the Manufacturer or another third party for resale to the Customer.
5.3 Vehicle Licence and Tax: If stated in the Contract Description, the Supplier will procure for the Purchased Vehicle a Vehicle Licence for the period stated in the Contract Description, running from or slightly before the date of delivery of the Purchased Vehicle to the Customer, and pay the associated Vehicle Tax.
5.4 Other Procured Items: The Supplier will obtain the Procured Items to commence or be available from completion delivery of all the Purchased Goods, or slightly before, unless otherwise stated. If the Procured Items are a warranty, insurance or other service provided by a third party, then the Supplier will procure on behalf of the Customer a contract between the Customer and the Provider, for the Procured Item, on the Provider's standard terms, for such period as may be stated in the Contract Description (or one year only, if not other stated), running from or slightly before the date of delivery of the Purchased Goods.
5.5 Inability to procure and substitution: If the Supplier is to procure the Purchased Goods or Procured Items from a third party and is unable to do so at all or in time, the Supplier may substitute an equivalent to the Purchased Goods or Procured Items, or cancel the Contract in relation to those Purchased Goods or Procured Items, without liability to the Customer. If the Supplier cancels the supply of the Purchased Vehicle under the above right, then the entire contract will be cancelled by the Supplier, and any Deposit will be refunded.
5.6 Vehicle Registration: Where the Purchased Vehicle is New, the Supplier will, at or prior to delivery of the Purchased Vehicle, register the Purchased Vehicle so that the Customer is recorded as the first keeper of the Purchased Vehicle, and provide the appropriate registration document (e.g. the VC5) to the Customer on delivery of the Purchased Vehicle to the Customer. Where the Purchased Vehicle is Pre-Registered or Used, the Customer and Supplier shall carry out at the time of delivery the necessary actions to register the Customer as the new keeper of the Purchased Vehicle.
5.7 Services: The Supplier will carry out in respect of the Purchased Vehicle and other Purchased Goods, prior to delivery, any Services specified in the Contract Description (e.g. paint protection, correction of scratches), and any pre-delivery work in relation to the Purchased Vehicle or other Purchased Goods which is specified by the Manufacturer.
6.1 Delivery Address: The Purchased Goods shall be delivered at, and shall be collected by the Customer at, the Delivery Address. If the Delivery Address is not the Supplier's premises, the Supplier will transport the Purchased Goods to the Delivery Address for delivery.
6.2 Delivery Date: The Supplier will use reasonable endeavours to deliver the Purchased Products, Procured Items and Services by such date for delivery as may be stated in the other Contract Terms. All stated dates and times for delivery are estimates only. The Customer acknowledges that the delivery periods for Purchased Vehicles which are New depend on the Manufacturer, and may be 6 months or more. If the Customer is not a consumer, then the Supplier will not have any liability for delay or non-delivery unless the date for delivery and performance has passed, the Customer has subsequently given notice requiring delivery to be made, and the Supplier has failed to deliver and perform in a further 60 days.
6.3 Delivery Readiness Notice and Delivery: When the Purchased Goods are ready and available for delivery by the Supplier, the Supplier will notify the Customer (a "Delivery Readiness Notice"), and the following terms shall apply on service of the Delivery Readiness Notice. The Customer shall take delivery of the Purchased Goods at the Delivery Address, pay all Charges and VAT, and deliver any Part Exchange Vehicle (if there is a Part Exchange), as soon as possible, and in any event within 14 days beginning with the day after the service of the Delivery Readiness Notice. The Customer shall promptly arrange with the Supplier by telephone, e-mail or in person, as required by the Supplier, an appointment for a specific date and time to effect the delivery of the Purchased Goods and Part Exchange Vehicle (if any) at the Delivery Address, and shall strictly keep to such appointment.
6.4 Delivery Conditions: The Customer shall comply with, and the Supplier shall not be obliged to deliver the Purchased Goods or complete any Part Exchange, and shall not be liable for any resulting delay or non-delivery, until the Customer has complied with the following conditions: (a) the Customer shall have paid all Charges and VAT on or prior to delivery (unless the Customer is given a credit period in accordance with Clause 8.3); (b) the Customer shall have delivered any Part Exchange Vehicle in the contractually required condition in accordance with Clause 12; (c) the Customer shall have provided their driver's licence for inspection on delivery; (d) the Customer shall have provided evidence of any legally required motor insurance; (e) the Customer is not the subject to an Insolvency Event; and (f) the Customer shall have ensured that there are no overdue debts under this Contract or any other contract between the parties.
6.5 Delivery Inspection: The Supplier may require the Customer, prior to delivering the Purchased Goods, to carry out a reasonable visual inspection of the Purchased Goods at the point of delivery and to sign a form to acknowledge the results and findings of such inspection.
6.6 Failure to take delivery: If the conditions in Clause 6.4 have not been satisfied by the Customer and delivery of the Purchased Goods (and any Part Exchange Vehicle) has not taken place within the 14 day period in Clause 6.3 (or by such later date as the Supplier may allow), other than due to the fault of the Supplier, then the Supplier shall be entitled to treat this as a repudiatory (i.e. the most serious) breach of the Contract by the Customer. If the Supplier elects to continue with the Contract, it may allow a further time for delivery to take place, in which case the Customer shall pay a reasonable Storage Charge for storing the Purchased Goods.
6.7 Passing of Risk: Risk in the Purchased Goods shall pass to the Customer on delivery to the Customer, and the Customer must insure the Purchased Goods accordingly.
7.1 Obligation to Pay: The Customer shall pay to the Supplier the Prices and all other Charges, together with VAT. Where the Customer does not wish to take any standard (not separately Priced) equipment or options included in the Price of a Purchased Vehicle, the Price will not be reduced as a result.
7.2 Deposits: All Deposits are legal deposits, which means that they will be forfeited if the Customer fails to perform the Contract. If a Deposit is to be refunded, this will be made, less deductions permitted by this Contract or law, within any legally required time period or in any other case within 30 days.
7.3 VAT: Unless otherwise stated, all Prices and other Charges are inclusive of VAT. Where VAT is stated separately, then the Prices and other Charges are exclusive of VAT which shall be payable in addition. In each case VAT will have been calculated on rate at the time the Contract was made or the Charge arose. If the VAT rate subsequently changes, then the Supplier may and will adjust the amount of VAT payable by the Customer to that applicable at the time the taxable supply occurs, and adjust any VAT inclusive Prices and other Charges accordingly.
7.4 Transportation Charges: Unless transportation is separately stated as a Price, the Prices are stated inclusive of transportation of the Purchased Goods to the Delivery Address for delivery to the Customer.
7.5 Vehicle Tax Changes: If the Supplier has agreed to pay any Vehicle Tax for a Purchased Vehicle, and the amount of Vehicle Tax increases between the making of the Contract and the delivery of the Purchased Vehicle to the Customer, then the Supplier may make an additional Charge for the amount of such increase.
The Customer shall pay all Charges and VAT strictly in accordance with the following terms, which are of the essence:-
8.1 Invoicing: All Prices and other Charges stated in the Contract Terms may be invoiced (together with VAT) at any time after the making of the Contract. All Charges which arise or are agreed after the making of the Contract may (together with VAT) be invoiced at any time after they have arisen or been agreed.
8.2 Time for Payment: The Customer shall pay any Deposit on the making of the Contract. All Charges and VAT shall be paid prior to delivery of the Purchased Goods, Procured Items and Services to which they relate, or, if sooner, within 3 days after any Delivery Readiness Notice is served. If any additional Charges and VAT arise after the making of the Contract then they shall be paid on demand. The Supplier may withhold delivery of the Purchased Goods, the Procured Items and Services, until all Charges and VAT have been paid. The Supplier will give credit against any Price for any Deposit already paid in respect of it, and any Part Exchange Allowance agreed in relation to it. For the avoidance of doubt, all VAT shall be due and payable at the same time as the Charges to which it relates.
8.3 Credit Accounts: If the other Contract Terms state that credit terms apply, then the Charges and VAT shall instead be paid within 20 days (or such longer period as may have been agreed in the other Contract Terms) after the date which they would otherwise have been payable under Clause 8.2. However the Supplier may cancel this Clause 8.3 and require payment in accordance with Clause 8.2, if the Customer suffers an Insolvency Event at any time or fails to perform its part of the Contract or any other contract between the Customer and Supplier. Where the credit account is in respect of Fleet Vehicles, the Supplier shall state what other terms may apply to the credit account.
8.4 Cash Payment Only: No Charge or VAT shall be considered to have been paid unless and until it has been received by the Supplier in full, in cash or cleared funds. Except for any Part Exchange Allowance, the Customer shall pay the Charges and VAT in cash and not in kind.
8.5 Payment Method: If a payment method is stated in the other Contract Terms for any Charges and VAT, then that method shall apply to those Charges and VAT. All other Charges and VAT shall be paid by bankers draft, building society cheque, cash, direct debit payment, or bank transfer. If the Supplier allows payment to be made by cheque, then the cheque must be supported by a guarantee card, the amount is not considered to have been paid until the cheque clears, and the Customer must provide the cheque 7 days before the payment due date to allow time for clearance. Payment instruments sent by post or courier are at the risk of the Customer.
8.6 Charge-Backs: If payment received by the Supplier is subject to a charge back or otherwise reversed without the agreement of the Supplier, and other than where the Customer was legally entitled to such refund under the Contract, then this shall be considered to be a repudiatory breach (i.e. the most serious breach) of the Contract by the Customer. Title to all Purchased Goods and Replacement Goods shall pass immediately back to the Supplier, and Clause 9 shall apply again.
8.7 Interest: The Supplier may charge daily interest on overdue Charges and VAT from the due date until payment (before and after any judgement), at an annual rate of 3% for Customers who are consumers, and 15% for all other Customers.
8.8 Allocation of payments: The Supplier may allocate any payment received from the Customer to such debt (under this Contract or any other contract) as the Supplier may decide.
8.9 No Set-Off: If the Customer is not a consumer, then it shall pay all Charges and VAT without any set-off, deduction, withholding, or counter-claim.
9.1 When title passes: Title to any Purchased Vehicle and other Purchased Goods, and any Replacement Goods, shall pass to the Customer when the last of the following conditions is met: the Purchased Goods and Replacement Goods have been delivered to the Customer; the Part Exchange Vehicle (if applicable) has been delivered to the Supplier; and the Customer has paid the Supplier all Charges and VAT (including both those agreed when the Contract was made and those arising or agreed subsequently). Until that time, such title shall remain with and is reserved by the Supplier. If the Customer is not a consumer, then an additional condition shall be that title shall not pass so long as there are any amounts that are payable by the Customer to the Supplier under any other contract between the Customer and Supplier.
9.2 Position between delivery and Passing of Title: The following terms shall apply to those Purchased Goods or Replacement Goods which have been delivered to the Customer but where the Supplier retains title: (a) the Customer is loaned them only; (b) the Supplier may retain possession of any Vehicle Registration documents; (c) the Supplier may place notices of ownership on them, which the Customer shall not remove; (d) the Customer must tell the Supplier where they are and permit the Supplier to inspect them on demand; (e) the Customer must use them with reasonable care; (f) the Customer shall keep them insured for the Price against all usual risks; (g) the Customer must keep them in its sole possession and not sell, hire, create any encumbrance over or dispose of them, except that (1) if the Customer operates a self-drive hire business, the Customer may hire them out in accordance with that business, but shall indemnify the Supplier against any claims made against the Supplier arising out of that business and hire, and (2) if the Customer is a motor dealer then the Customer may resell any Purchased Vehicle or Replacement Goods under contracts with its customers made in the ordinary course of its business, at their reasonable market value, as principal, in which case title will pass to the Customer the moment before title is to pass to the Customer's immediate sub-buyer under any such contract for resale; (h) the Customer's right to use and possession of them shall cease immediately, and the Customer shall return them on demand, if the Customer suffers an Insolvency Event, or any amount under this or any other agreement between the parties becomes overdue; (i) the Customer irrevocably licences the Supplier (and its authorized representatives) to enter onto any premises (with or without vehicles) where they are or reasonably thought to be, for the purposes of inspecting, locating or repossessing them; (j) if the Customer sells them, or claims on any insurance policy with respect to any loss, damage, theft or destruction to them, it declares that it holds all proceeds of sale or insurance on trust for the Supplier up to the Charges and VAT outstanding under the Contract; (k) and the Supplier shall be entitled to maintain an action for the price even if title has not passed to the Customer.
10.1 Contract Description: Section 13 of the Sale of Goods Act 1979 and Section 3 of the Supply of Goods and Services Act 1982 imply a term into the Contract that the Purchased Goods and Replacement Goods will correspond to their description. Where any Purchased Vehicle is Pre-Registered, the Customer is notified that it will have a previous registered keeper under the Vehicle Registration, which may affect its resale value, and it may also be more difficult to obtain finance for a Pre-Registered motor vehicle. Where the Customer is not a consumer, the only description that shall apply shall be the Contract Description, and also nothing in the Contract shall prejudice the operation of Section 15A of the Sale of Goods Act 1979 or Section 5A of the Supply of Goods Act Services Act 1982.
10.2 Quality: For Customers who are consumers, Section 14 of the Sale of Goods Act 1979 and Section 4 of the Supply of Goods and Services Act 1982 imply a term into the Contract that the Purchased Goods and Replacement Goods will be of satisfactory quality, EXCEPT FOR: (a) anything which has been drawn to the attention of the Customer before the Contract was made; and (b) if the Customer examined the Purchased Goods and Replacement Goods, anything which that examination ought to have revealed. Section 13 of the Supply of Goods and Services Act 1982 implies a term that the Services will be provided with reasonable care and skill.
For Customers who are not consumers, the implied terms above are hereby excluded and the Supplier excludes all liability for the quality of the Goods [and Services], and the Customer shall make any claim solely against the Manufacturer under the Manufacturer Warranty (if any).
For customers who are not consumers, the Customer acknowledges and agrees that with respect to the Goods: [(a) satisfactory quality will be judged only in relation to the Contract Description and not any other description], and (b) it has had an opportunity to [carry out a full technical inspection of them] inspect them (whether or not it has done so) and that they are sold with and subject to anything which that examination would have revealed; and (c) it has not communicated to the Supplier any particular purpose for which the Purchased Goods are being bought or acquired.
10.3 Procured Items - Special Case: With respect to the Procured Items, the Supplier warrants that it will obtain the Procured Items to meet the Contract Description. However, the Supplier shall have no liability with respect to any performance of the Procured Items by the Provider or any breach by the Provider of any contract with the Customer for the Procured Items, and the Customer's claim shall be solely against the Provider.
10.4 Warranty Claims - Consumers: If the Customer is a consumer, and the Purchased Goods are Defective, then Part 5A of the Sale of Goods Act 1979 and Part 1B of the Supply of Goods and Services Act 1982 give the Customer certain rights to ask for a repair, or if proportionate a replacement, and if neither a repair or replacement is possible or proportionate, to obtain an appropriate reduction in the price or to cancel the Contract and ask for a refund (which may be reduced to take account of the use already made of the Purchased Goods).
10.5 Warranty Claims - Non-Consumers: This Clause shall apply to Customers who are not consumers. The Customer shall cease to have any right to reject any Goods or Services with respect to, and the Supplier shall not be liable at all for, any Defects notified to the Supplier by the Customer more than 6 months after delivery of the Goods (the "Warranty Period"). Where the Customer discovers a Defect, the Customer shall notify the Supplier promptly, and first give the Supplier a reasonable opportunity to inspect and provide a repair or replacement. The Customer shall be responsible for and shall pay the cost (including any costs incurred by the Supplier) of recovering and transporting any Goods to the Supplier's nominated premises for inspection and any repairs required. Where the Supplier carries out a repair or replacement for a Defect, the unexpired balance of the original Warranty Period shall apply do any further Defects arising.
Unless otherwise stated in the Contract Terms, the Purchased Goods or Replacement Goods are not supplied with any Manufacturer Warranty. The rest of this Clause applies if the Purchased Goods or Replacement Goods are stated in the Contract Terms to be supplied with or are in fact supplied with a Manufacturer Warranty. A Manufacturer Warranty is an agreement directly between the Customer and the Manufacturer, and the Supplier itself is not liable for and has no obligation in relation to any Manufacturer Warranty. With respect to any Purchased Goods or Replacement Goods which are Used or Pre-Registered, the Supplier hereby assigns to the Customer, on the passing of title to the Purchased Goods or Replacement Goods, and if it is assignable, the benefit of any Manufacturer Warranty in existence which is held by the Supplier with respect to such Purchased Goods or Replacement Goods. The Customer shall comply with the terms of each Manufacturer Warranty provided to it, and shall take all steps needed to register the Manufacturer Warranty or any transfer of the Manufacturer Warranty with the Manufacturer. If the Customer wishes to make a claim under a Manufacturer Warranty, it should take the Purchased Goods or Replacement Goods to the Manufacturer's nearest approved distributor or authorised repairer. If the Supplier carries out any Warranty Repairs covered by a Manufacturer Warranty, the Supplier is doing so on behalf of the Manufacturer.
This Clause applies if a Part Exchange is being made for a Purchased Vehicle.
12.1 Sale and Purchase: The Customer agrees to sell and the Supplier agrees to purchase the Part Exchange Vehicle on the following terms of this Clause 12.
12.2 Part Exchange Allowance: In consideration of the sale of the Part Exchange Vehicle to the Supplier, and subject to strict compliance by the Customer with this Clause 12, the Supplier will allow the Part Exchange Allowance as a credit against the Price for the Purchased Vehicle.
Reduction in Part Exchange Allowance for Customer Delay: For every period of 30 days which elapses between the date the Contract was made and the date that delivery of both the Purchased Vehicle to the Customer and the Part Exchange Vehicle to the Supplier has been completed, for whatever reason, and however delivery may be delayed, including any fault of either party, the Part Exchange Allowance shall be reduced by an amount equal to 3% of the original amount of the Part Exchange Allowance.
12.3 Delivery: The Customer shall deliver the Part Exchange Vehicle to the Supplier at the same time and place as delivery of the Purchased Vehicle to the Customer. The Supplier is not obliged to take delivery before that time, or to deliver the Purchased Vehicle until the Customer has delivered the Part Exchange Vehicle.
12.4 Documentation: The Customer must deliver with the Part Exchange Vehicle any documentation the Customer has (or as previously indicated that it has) relating to the Part Exchange Vehicle, and in any case must deliver the current MOT certificate, Vehicle Registration documents, manufacturer's handbook, manufacturer warranty documentation, service history records, tax disc, and all keys (including spares and emergency).
12.5 Vehicle Registration: On delivery the Customer and Supplier shall carry out the necessary actions to pass the Vehicle Registration to the Supplier.
12.6 Risk: Risk in the Part Exchange Vehicle shall pass to the Supplier on delivery, and not before.
12.7 Title: Title to the Part Exchange Vehicle shall pass to the Supplier on delivery to the Supplier, or, if sooner, if and when Supplier settles any encumbrance affecting the Part Exchange Vehicle. At the same time, the Customer hereby assigns to the Supplier the benefit of any manufacturer and other claims, warranties and guarantees it has relating to the Part Exchange Vehicle. The Customer must pass good title to the Supplier, and ensure that the Part Exchange Vehicle is free from any encumbrance, except for any encumbrance stated in the Contract Terms to be settled by the Supplier.
12.8 Settlement of encumbrances: Except as otherwise agreed in the Contract Terms, the Customer shall settle and clear all encumbrances affecting the Part Exchange Vehicle on or before delivery of the Part Exchange Vehicle, and the Customer must provide evidence of this. If the Supplier agrees in the Contract Terms to settle an encumbrance affecting the Part Exchange Vehicle, the Supplier will do so, if it is capable of cash settlement and is no more than the amount stated in the Contract Terms. If it is more than such amount then the Customer shall be responsible for settling the difference. The Part Exchange Allowance shall be reduced by any amount paid by the Supplier in or towards settlement of an encumbrance affecting the Part Exchange Vehicle, and if this amount is more than the Part Exchange Allowance then the Customer shall pay the excess on demand. Where any encumbrance is to be settled in whole or in part by the Supplier, the Customer hereby assigns to the Supplier all its rights to title to the Part Exchange Vehicle under such encumbrance.
12.9 Contract Description: The Part Exchange Vehicle shall be supplied by the Customer in accordance with any description provided by the Customer and/or set out in the Contract Terms, and shall be the specific motor vehicle which the Customer offered to the Supplier, and which (if inspected) was seen by the Supplier before making the Contract.
12.10 Quality: If the Supplier has examined the Part Exchange Vehicle prior to the making of the Contract, the Part Exchange Vehicle shall be delivered to the Supplier in the same condition and repair as it was at the date of such examination (fair wear and tear following such date excepted). It is also a condition of the Part Exchange that the Part Exchange Vehicle has not at any time been used abroad before being registered in England and Wales, been used for self-drive hire, hackney carriage, taxi services, or instruction, or been used for racing, off-road driving, or green-laning, and has not been the subject of a total loss insurance claim.
12.11 Rejection: If the Customer does not comply with or the Part Exchange Vehicle does not comply with the requirements of this Clause 12, then this shall be deemed to be a repudiatory (i.e. the most serious) breach of the Contract, and the Supplier shall be entitled at its option to reject the Part Exchange Vehicle or make a reasonable reduction to the Part Exchange Allowance. If the Supplier rejects the Part Exchange Vehicle, the Supplier shall be discharged from any obligation to purchase the Part Exchange Vehicle or to give the Part Exchange Allowance, but the Customer shall still be obliged to purchase the Purchased Vehicle and other Purchased Goods.
12.12 Cancellation of sale of Purchased Vehicle: If the sale of the motor vehicle (including Purchased Vehicle) in respect of which the Part Exchange is being made is cancelled or terminated for any reason, including rejection of the Purchased Vehicle, and including cancellation or termination of any separate contract with a finance provider entered into under Clause 13, then, without prejudice to any rights of the parties: (a) if the Part Exchange Vehicle has been resold by the Supplier, the Supplier will pay to the Customer an amount equal the Part Exchange Allowance; and (b) in any other case the Part Exchange shall be considered cancelled and terminated, the Supplier shall be released from any obligation to purchase the Part Exchange Vehicle, and the Customer shall accept a return of the Part Exchange Vehicle (at the cost of Customer unless the cancellation or terminations was the fault of the Supplier).
FINANCED PURCHASE FROM A THIRD PARTY
13.1 Notice from Customer: If after entering into the Contract, the Customer decides to have the Purchased Goods purchased from the Supplier by a finance company for hire or hire purchase to the Customer, then the Customer may cancel the purchase of the Purchased Goods under the Contract in accordance with this Clause 13, by giving written notice to the Supplier before or by no later than [seven (7)] days after receipt of a Delivery Readiness Notice. The Customer's notice must give details of the proposed finance company, who must be duly authorised or licensed by law to enter into such transaction. Such notice will be deemed to have been given if the Customer applies for financing brokered by the Supplier.
13.2 Negotiation of sale to finance company: If the Customer gives such notice, then the Supplier agrees that it will negotiate with the finance company to sell the Purchased Goods to that finance company.
13.3 Sale agreed with finance company: If the finance company enters into a separate contract with the Supplier to purchase the Purchased Goods from the Supplier, then the Customer and the Supplier shall be released and discharged under this Contract from any obligations to buy or sell those Purchased Goods, subject to the following condition: if the contract of sale with the finance company is cancelled or terminates for any reason, including by operation of law, then such release and discharge shall cease to apply, and the Customer shall become liable to purchase and pay for the Goods under this Agreement once more. If the Customer paid a Deposit, then the Supplier will give a credit for such Deposit against the price under the separate sale contract with the finance company, and if it does, the Supplier shall be entitled to retain the Deposit. If in relation to those Goods there is a Part Exchange, then the provisions of Clause 12 shall still apply, but so that: references to the Purchased Vehicle and any transaction relating to it shall be to the motor vehicle to be purchased now under the separate sale contract with the finance company; and the Supplier will give credit for the Part Exchange Allowance against the price under the separate sale contract with the finance company, which credit shall be the consideration for the sale of the Part Exchange Vehicle to the Supplier under this Contract.
13.4 Failure to reach agreement with finance company: If the finance company and the Supplier are unable to agree terms for or do not enter into such separate contract within 7 days of the Customer's notice under Clause 13.1, then the Supplier may at any time thereafter insist that the sale and purchase of the Purchased Goods continue under this Contract, and in such case shall have no further obligations under this Clause 13.
LIMITATION OF LIABILITY
14.1 Consumers: This Clause 14.1 applies if the Customer is a consumer. The Supplier does not restrict or exclude its liability to the Customer except as follows: the Supplier shall not be liable for business related loss or damage, or for any loss or damage which was not reasonably foreseeable, or for any loss or damage not caused by a breach of the Contract by the Supplier or any negligence or other act or omission on the part of the Supplier. In any event, nothing restricts or excludes the Supplier's liability for fraud or fraudulent misrepresentation.
14.2 Non-Consumers: This Clause 14.2 applies if the Customer is not a consumer. Except as otherwise stated in this Clause, the Supplier's liability, for all events and circumstances in aggregate giving rise to liability of the Supplier, shall be limited to the total of the Prices payable under the Contract as initially agreed and set out in writing in the Contract Terms when the Contract was made. The Supplier does not restrict or exclude its liability for fraud or fraudulent misrepresentation, for breach of any implied term relating to title to any Goods, or to any individual for death or personal injury. The Supplier's liability for the following is excluded: loss of profits (including loss of user profits and loss of profits on a resale), revenue, contract, production, custom, repeat orders, reputation, business and goodwill; liability of the Customer to a third party (including a sub-buyer under a resale); extra, incidental, wasted and reliance expenditure; fines; anticipated savings; indirect, special, incidental, or consequential loss or damage; any loss or damage which was not reasonably foreseeable; and any loss or damage not caused by a breach of the Contract or any negligence or other act or omission on the part of the Supplier.
15.1 Events beyond the Supplier's control: The Supplier shall be entitled to a reasonable extension of time to perform the Contract if it is not able to perform at all or within the contractually required timescale due to unforeseen events beyond the Supplier's reasonable control, including any inability to procure or shortage of goods, parts or labour. If the Supplier is able to perform some but not all of its contracts as a result of such an event, the Supplier may decide which contracts to perform, and in what order. If the Supplier reasonably considers that it will not be able to complete performance of the Contract as a result of such an event, the Supplier may terminate the Contract without liability to the Customer.
15.2 Insolvency: The Supplier may terminate the Contract if: the Customer is a business, and creases trading; the Customer becomes insolvent; the Customer is made bankrupt; the Customer commences winding-up, liquidation or dissolution; a court order is made to give the Customer protection or postponement against any of its creditors or relief from any of its debts; the Customer makes any arrangement or composition with any of its creditors; a liquidator, administrator, administrative receiver or receiver is appointed over or takes possession of any of the Customer's assets or undertaking; any step is taken to achieve any of the above in relation to the Customer; or any equivalent or similar event occurs in relation to the Customer in any other jurisdiction in the world.
15.3 Enforcement Costs: This Clause does not apply to consumers. The Customer shall indemnify the Supplier against all fees, costs and expenses incurred by the Supplier (including court, legal and expert fees), in enforcing the Contract against the Customer, in recovering Charges and VAT, in recovering damages, and in successfully defending any claims or legal proceedings brought by the Customer.
15.4 Transfer of the Contract: The Customer may not transfer the Contract, except that with respect to the Goods, if the Customer is a consumer, then the Customer may transfer its rights under Clause 10(SUPPLIER'S WARRANTIES) with respect to those Goods to any person who the Customer validly sells the Goods to, once title to those Goods has passed to the Customer and the Customer has paid all Charges and VAT. The Supplier may transfer or charge the Contract and/or any Charges and VAT payable under it.
15.5 Sub-Contracting: Either party may sub-contract their obligations.
15.6 Waiver: If a party allows extra time to perform, or waits before enforcing the Contract, it may still require performance of or enforce the Contract at a later time.
15.7 Severable terms: If any Contract Term cannot be enforced for any reason, the rest of the Contract shall not be affected.
15.8 No third party rights: The Contract shall not benefit or be enforceable by any person other than the named Supplier and Customer.
15.9 Interpretation: References to any gender include every gender. References to the singular include the plural and vice versa. References to any legislation include each rule, order and regulation made under it, and any future amendment, re-enactment, or replacement. References to any person include individuals, partnerships, companies and other bodies corporate, and government officers and bodies. References to "include" or "including" shall be read as being followed by the words "(without limitation)". References to "deliver" and "delivery" mean, in relation to any goods, the voluntary transfer of possession from one person to another, including to their carrier, agent, or representative, and in relation to services, the completion of those services. References to "title" mean legal and beneficial title and property, free from encumbrances. References to "encumbrance" include any reservation of any title; any hire, hire purchase, conditional sale, credit sale, pawn or security deposit agreement; any charge, lien, mortgage, pledge, or bill of sale; and any obligation to create any encumbrance. References to liability of the Supplier include: any liability for breach of the Contract (including contractual negligence), any liability for any tort (including non-contractual negligence) committed in connection with or in the course of performing the Contract; any liability under any legislation, or under a statutory right of the Customer, or for breach of a statutory duty; any liability for misrepresentation; and any liability in restitution or to pay restitution damages
15.10 Law and Jurisdiction: The law of England and Wales shall govern the Contract, and the courts of England and Wales shall have exclusive jurisdiction.