Validity and Application
Nothing herein contained is intended by the Company to negate or limit any right in law which cannot lawfully be so negated or limited and if it should be held by a court or other competent jurisdiction that any of these terms and conditions has that effect, then part or parts shall be severed from the remainder which shall continue in full force and effect.
In these Terms and Conditions:
Contract - Shall mean the transaction between the Company and the Customer.
Company - Shall mean eStar Truck and Van Ltd.
Customer - Shall mean the person, firm or company identified as ordering goods or services.
Goods - Shall mean every, or where the context so requires, any item of whatsoever nature (truck, van, lorry, parts, accessories, mechanical services), which the Customer buys or has agreed to buy from the Company under this transaction.
1) Formation of Contract/Transaction
(a) All orders will be taken and all goods supplied by the Company subject to these terms and conditions and, subject to the ‘Validity and Application’ statement above, no other terms, conditions or warranties are to be implied into Contract unless expressly accepted in writing by an authorized representative of the Company.
(b) Subject to the provision of clause 1) (a), above mentioned, these terms and conditions are the only terms and conditions applicable to the Contract and shall supersede all earlier arrangements or agreements entered into or made between the Company and the Customer and shall apply to the exclusion of any other provisions contained in any other document issued by the Customer in any manner whatsoever or at any point of time.
2) Quotations and Estimates
(a) The Company shall only be bound by prices quoted in writing and for a specified time. Any prices exhibited on the Company’s premises constitute an Invitation to Treat Only.
(b) Where the Company provides a quotation to a Customer, that quotation shall be available for acceptance by the Customer for a maximum period of fourteen days, unless otherwise expressly agreed in writing by an authorized representative of the Company. The Company may by written or oral notice withdraw any quotation at any time prior to the Customer’s acceptance.
(c) If between the date of contract and the dates of collection or delivery there are variations in the costs of manufacturers prices, transport, taxes or other costs or charges, then the contract price may be varied at the Company’s discretion. That is to say that, unless the Company’s quotation specifically provides for a fixed price contract, price ruling shall be those at the date of collection, dispatch or delivery.
3) Value Added Tax (VAT)
(a) Unless stated otherwise all retail prices for new parts and prices listed on the website www.estartruckandvan.co.uk are inclusive of VAT.
(b) Unless stated otherwise all prices for second hand parts are exclusive of VAT.
(c) Unless stated otherwise all labour charges are exclusive of VAT.
4) Separate Contracts
Each order and its acceptance is to be treated as a separate contract and accordingly, if there should be at any one time more than one contract in the course of performance between the Company and the Customer, and if any question, dispute or difficulty shall arise in respect of one or such contracts, neither the existence of such, dispute or difficulty nor the terms on which it may be settled shall effect in any way whatsoever other such contracts.
(a) Time for payment shall be of the essence of the Contract.
(b) Unless otherwise agreed in writing, the Customer must pay for all goods and services in full on order or, at the sole discretion of the Company. The Company may refuse to release the ordered goods or services until the cheque has been cleared.
(c) Under no circumstances shall the Company offer goods/services on credit facilities to the Customer.
(d) No disputes arising under the Contract, nor delays beyond the reasonable control of the Company, shall interfere with prompt payment in full by the Customer.
(e) The Company, without prejudice to any other rights, reserves the right to charge on overdue accounts at the rate of 2.5% per annum above the minimum lending rate of the Company’s bankers applicable from time to time.
(a) Not withstanding the provisions of clause 5), above mentioned, the Company reserves the right to require the Customer to pay a deposit on the ordering of goods, such deposit to be determined by the Company at the time of order or contract. All deposits are non-refundable, however, deposits may be transferable to other goods or services at the discretion of the Company.
(b) If the Customer shall fail to pay for the goods ordered in accordance with the provisions of the said clause 5), above mentioned, the Company shall be entitled to treat the Contract as repudiated by the Customer. In this event the Company may retain any deposit or part thereof without prejudice to the Company’s rights to recover from the Customer by way of damages any loss or expense which the Company may suffer or incur by reason of the Customer’s default and the Company shall be entitled to dispose of any goods as they shall think fit and shall not be under any liability to account to the Customer for the price received for such goods or for the said deposit.
The Company shall be entitled to full indemnity if the Customer cancels an order, which the Company has accepted. Orders accepted by the Company may not be cancelled by the Customer without the Company’s prior written consent and in the event of such consent being given, the Company reserves the right to charge a cancellation fee as a condition thereof.
8) Returned Items
(a) Returns of electrical items are strictly prohibited.
(b) If the Customer wishes to return any goods (except electrical goods) to the Company, a returns reference number must first be obtained from the Company and the items returned in accordance with the requirements of the Company. Any items returned to the Company without such a returns reference or otherwise contrary to the Company’s requirements will be re-despatched to the Customer at the Customer’s cost. All returns must be made within 7 working days of despatch of the order.
(c) With respect to the provisions of this clause, the Company will take no action nor will it provide the Customer with a credit until the items are back with Company and have been subject to an examination. Such an examination will include inspection of the original packaging and Customer’s invoice.
(d) All damages and/or shortages must be reported in writing (including facsimile within 3 working days of parcel receipt in order to sustain a valid claim.
(e) Return carriage charges cannot be accepted by the company unless such charges have been expressly agreed by the Company prior to the return of goods.
9) Stock Items
All goods which are stock items and which have been correctly supplied to the Customer in accordance with the provisions of the Contract but which are then returned by the Customer for credit (where the Company allows this) will be subject to a minimum 25% restocking charge. All such returns must be made to the Company within 5 working days of delivery to the Customer and must be returned in an undamaged condition and fit for resale, including the packaging. The Company reserves the right to reject any returns considered unsuitable for resale for whatever reason.
10) Special Order Items
(a) Orders for goods which are not general stock items and which are subject to special order provisions are only accepted by the Company on the basis that such orders cannot be cancelled by the Customer nor the goods returned to the Company and that credit cannot be issued for any E.S.O items for Honda, Yamaha, Suzuki, Kawasaki, KTM or any other manufacturer’s motorcycles, parts, components or accessories.
(b) Notwithstanding the provisions of clause 10) (a)above, the Company may, exercising its sole discretion, allow the return for credit of certain special order items. In this case such returns will be subject to a minimum 25% restocking charge.
11) Changes Required by the Customer
Any and all loss or expense occasioned to the Company as a result of changes required by the Customer to any order accepted by the Company shall be fully reimbursed by the Customer to the Company.
12) Delivery and Carriage
(a) Delivery commitments are entered into good faith, but the Company shall not be liable for failure to deliver on any specified date nor shall such failure be deemed to be a breach of contract or any part of these terms and conditions.
(b) Where the Contract requires delivery by instalments, each instalment shall be regarded as a separate contract and any defects in any instalment or failure to deliver any instalment shall not give the Customer the right to cancel the balance of deliveries due under this or any other contract between the parties.
(c) All orders will be despatched in accordance with the Company’s current carriage policy. Where possible, the Company will endeavour to meet special delivery requirements subject to any and all additional costs of the same being borne by the Customer.
13) Failure to Take Delivery
If the Customer fails to accept delivery of any goods ordered in accordance with the provisions of the Contract, the Company shall not be bound to tender or re-tender the goods, but the Company shall have the right:
(a) To invoice such goods including the cost of non-acceptance for immediate payment.
(b) To sell the goods elsewhere and recover any difference in price including the costs of non-acceptance from the Customer.
(c) To make a reasonable storage charge for the goods remaining on the Company’s premises longer than 7 days.
14) Passing of Risk
(a) Subject to the provisions of these conditions, all risks shall pass to the Customer on delivery to or in accordance with the Customer’s instructions or, in the case of carriage, to the carrier. It shall be the responsibility of the Customer to arrange adequate insurance against all relative risks.
(b) The Customer shall have a reasonable time from delivery of the goods to effect inspection and examination after which time the goods shall be deemed to be satisfactory and shall be deemed accepted by the Customer.
15) Passing of Title in Goods (inc ‘All Monies Clause’)
(a) Unless otherwise stated in writing, any and or all goods supplied by the Company to the Customer shall remain the property of the Company until all monies due in respect of any goods supplied to the Customer at any time have been paid in full. Until such time as the Company has received such payment, legal and beneficial ownership in any such goods shall remain with the Company, and shall not pass to the Customer or to any sub-purchaser. Further, the Customer shall hold such goods as bailee, store them in such a way that they can be identified as the property of the Company and keep them separate from the Customer’s own property and the property of any other person or business.
(b) Although all goods remain the property of the Company until paid for, they shall be at the Customer’s risk from time of delivery or collection and the Customer shall hold the proceeds of any insurance against loss or damage on behalf of the Company as trustee for the Company.
(c) The Customer’s right to possession of the goods shall, for the purpose of the instant clause 15), cease if:
(i) upon presentation to a bank of any cheque tendered in respect of payment for goods it is returned dishonoured; or
(ii) the Customer has not paid for the goods in full by the expiry of any credit period allowed by the company; or
(iii) the Customer is declared bankrupt or makes any proposal to his/her creditors for a composition or orther voluntary arrangement; or
(iv) a receiver, liquidator or administrator is appointed in respect of the Customer’s business; or
(v) an encumbrancer takes possession of any of the property or assets of the Customer; or
(vi) the Customer ceases, or threatens to cease, to carry on business; or
(vii) the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
(d) On cessation of the Customer’s right to possession of the goods pursuant to the sub-clause immediately aforementioned, the Customer shall at his/her own expense make the goods available to the Company and allow the Company to repossess them.
16) Delays & Force Majeure
(a) In the case of ordered goods the Company will use its best endeavours to ensure availability of the same by the date and time requested. However, the Company can offer no guarantee with respect to the provision of this clause and cannot accept responsibility for delay resulting from the none or late availability of any goods or other reasons beyond its control.
(b) In the event of the performance of any obligation accepted by the Company being prevented, delayed or in any way interfered with by any direction of government or other competent authority, industrial dispute, strike, breakdown of plant machinery, accident, fire or by any other cause beyond the Company’s reasonable control the Company may, at its sole option, suspend performance or cancel its obligation under the contract without damage or consequential loss arising.
(a) Any goods supplied to the Company will be entitled to the benefit of any warranty given by the manufacturers of any such items. This will not affect the Customer’s or, as the case may be, any sub-purchasers statutory rights.
(b) All used vechicles are sold as seen (with descriptions) and are sold with no warranties.
18) Defective Goods
Subject to clause 17, above mentioned, and always subject to the provisions of any such warranty provided by the manufacturer, if it is proved to the Company’s satisfaction that any goods supplied, are defective, the Company may be prepared to rectify or replace at its option such defective goods. In the event that such rectification or replacement is not practicable the company may give credit to an amount not exceeding the invoice price. In no circumstances whatsoever will the Company be liable for any further or consequential loss.
The Customer agrees that they shall not remove, change or in any way interfere with packaging, trademarks or other marks and labels supplied with or relating to the goods.
20) Items for Sale By Customer
The Company sells motorcycles and other items for Customers. Customers leave items for sale at the Company premises for sale. The Customer determines with the Company the amount of monies the item is sold. The Company will endeavour to reach the monies set by the Customer. The Customer cannot hold the Company liable if the monies are not achieved. The Customer will be liable for an agency fee to the Company in the event of a sale, which is to be determined by the Company at its own discretion. The Customer selling the item will be liable for all costs incurred by the Company in its effort to sell the item. The item in the Company’s possession will only be insured to the amount the Company’s insurance company is willing to pay. All Customers leaving items for sale must strictly adhere to these terms and conditions.
21) Indemnity Against Infringement of Industrial Property Rights
The Customer will fully indemnify and hold the Company harmless against any claim or liability in respect of any infringement of any Patent, Trade Mark, Registered Design or any other like claim resulting from compliance with the Customer’s instructions express or implied.
Any notices given here under may be severed personally or be left at the last known residence or place of business of the Customer, or may be sent by first class post, in which case notice shall be deemed to have been received by the Customer on the first working day after posting.
In the event of any provision of these terms and conditions being or becoming void in whole or in part the other provisions of these terms and conditions shall remain fully valid and enforceable and void provisions shall, where appropriate, be replaced in accordance with the meaning and purpose of these terms and conditions.
The omissions to exercise, or any delay in exercising, any of its rights or remedies under these terms and conditions of business shall not constitute a waiver of any such rights or remedies by the Company.
The Contract shall be governed and interpreted exclusively according to English Law and shall be subject to the exclusive jurisdiction of the English Courts.
All transactions undertaken by the Customer with the Company (eStar Truck and Van Ltd) are bound by these Terms and Conditions.