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Jan 2002 TERMS & CONDITIONS OF SALE:
1 INTERPRETATION
1.1
In these Conditions:-
1.1.1
"Buyer" means the person who accepts a quotation of the
Seller for the sale of the Products or whose order for the Products is accepted
by the Seller
1.1.2
"Conditions" means the standard terms and conditions of sale
set out in this document and (unless the context otherwise requires) includes
any special terms and conditions agreed in writing between the Buyer and the
Seller
1.1.3
"Contract" means the contract for the purchase and sale of
the Products
1.1.4
“Intellectual Property Rights” means all know-how, patents, registrable
and registered trade and service marks, registrable and registered designs,
applications for any of the foregoing and all renewals and extensions thereof,
design rights, trade marks, copyrights or intellectual property rights and all
other industrial or commercial property owned by or licensed to the Seller in
any part of the world and used or capable of use exclusively by it.
1.1.5
“Premises” means Lola House, Glebe Road, St Peter’s Road, Huntington,
Cambridgeshire PE29 7DS and any other permanent address of the Seller and any
vehicle of the Seller in attendance at a race meeting.
1.1.6
"Products” means the goods (including any instalment of the goods
or any parts for them) and/or services which the Seller is to supply in accordance
with the Contract
1.1.7
“Racing Authority” means the governing body of the sport for which the
Products are designed or will be used
1.1.8
"Seller" means Lola Cars International Limited (registered in
England and Wales under number 3415853) (“Lola”) and any other company which is
for the time being a subsidiary or holding company of Lola or a subsidiary of
Lola’s holding company
1.1.9
"Writing" includes telex, cable, facsimile transmissions, e-mails and comparable means
of communication.
1.2
Any reference in these Conditions to any provision of a statute shall
be construed as a reference to that provision as amended, re-enacted or
extended at the relevant time.
1.3
The headings in these Conditions are for convenience only and shall not
affect their interpretation.
2.1
The Seller shall sell and the Buyer shall purchase the Products in
accordance with any written quotation of the Seller which is accepted by the
Buyer, or any written order of the Buyer which is accepted by the Seller,
subject in either case to these Conditions, which shall govern the Contract to
the exclusion of any other terms and conditions subject to which any such
quotation is accepted or purported to be accepted, or any such order is made or
purported to be made, by the Buyer.
2.2
Where no written order is made the Seller shall sell and the Buyer
shall purchase the Products in accordance with the price given orally by the
Seller and with these Conditions.
2.3
No variation to these Conditions shall be binding unless agreed in
Writing between the authorised representatives of the Buyer and the Seller.
2.4
The Seller's employees or agents are not authorised to make any
representations concerning the Products unless confirmed by the Seller in
Writing. In entering into the Contract
the Buyer acknowledges that it does not rely on any such representations which
are not so confirmed.
2.5
Any advice or recommendation given by the Seller or its employees or
agents to the Buyer or its employees or agents as to the storage, application
or use of the Products which is not confirmed in Writing by the Seller is
followed or acted upon entirely at the Buyer's own risk, and accordingly the
Seller shall not be liable for any such advice or recommendation which is not
so confirmed.
2.6
Any typographical, clerical or other error or omission in any sales
literature, quotation, price list, acceptance of offer, invoice or other
document or information issued by the Seller shall be subject to correction
without any liability on the part of the Seller.
3.1
No order submitted by the Buyer shall be deemed to be accepted by the
Seller unless and until confirmed in Writing by the Seller's authorised
representative.
3.2
The Buyer shall be responsible to the Seller for ensuring the accuracy
of the terms of any order (including any applicable specification) submitted by
the Buyer, and for giving the Seller any necessary information relating to the
Products within a sufficient time to enable the Seller to perform the Contract
in accordance with its terms.
3.3
The Buyer shall be responsible for complying with any legislation or
regulations governing the importation of the Products into the country of
destination and for the payment of any duties thereon.
3.4
The quantity, quality and description of and any specification for the
Products shall be those set out in the Seller's quotation (if accepted by the
Buyer) or the Buyer's order (if accepted by the Seller).
3.5
If the Products are to be manufactured or any process is to be applied
to the Products by the Seller in accordance with a specification submitted by
the Buyer, the Buyer shall indemnify the Seller against all loss, damages,
costs and expenses awarded against or incurred by the Seller in connection
with, or paid or agreed to be paid by the Seller in settlement of, any claim
for infringement of any Intellectual Property Rights of any other person which
results from the Seller's use of the Buyer's specification.
3.6
The Seller reserves the right without the prior consent of the Buyer to
make any changes in the specification of the Products which:
3.6.1
are required to conform with any applicable statutory or European Union
requirements or the requirements of any Racing Authority; or
3.6.2
will in the Seller’s opinion improve the safety or performance of the
Products; or
3.6.3
where the Products are to be supplied to the Seller's specification, do
not materially adversely affect their quality or performance.
3.7
The Seller shall be entitled to sub-contract any part of the design or
manufacture of the Products without first seeking the consent of the Buyer.
3.8
All Intellectual Property Rights in any Product designed or
manufactured by the Seller shall belong exclusively to the Seller. No licence is hereby granted by the Seller
to the Buyer, under any Intellectual Property Right save for the right of the
Buyer to use and/or sell the Products.
3.9
No order which has been accepted by the Seller may be cancelled by the
Buyer except with the agreement in Writing of the Seller and on terms that the
Buyer shall indemnify the Seller in full against all loss (including loss of
profit), costs (including the cost of all labour and materials used), damages,
charges and expenses incurred by the Seller as a result of cancellation.
4.1
The price of the Products shall be the Seller's quoted price or, where
no price has been quoted (or a quoted price is no longer valid), the price
listed in the Seller's published price list current at the date of acceptance
of the order. Where the Products are supplied for export from the United
Kingdom, the Seller's published export price list shall apply. All prices quoted are valid for 90 days only
or until earlier acceptance by the Buyer, after which time they may be altered
by the Seller without giving notice to the Buyer.
4.2
The Seller reserves the right, by giving notice to the Buyer at any
time before delivery, to increase the price of the Products to reflect any
increase in the cost to the Seller which is due to any factor beyond the
control of the Seller (such as, without limitation, any foreign exchange
fluctuation, currency regulation, alteration of duties, significant increase in
the costs of labour, materials or other costs of manufacture), any change in
delivery dates, quantities or specifications for the Products which is
requested by the Buyer, any change in specifications arising from a modification
made by the Seller to improve the safety of the Products under clause 3.6.2 or
as a result of the requirements of the European Union or of a Racing Authority
under clause 3.6.1 or any delay caused by any instructions of the Buyer or
failure of the Buyer to give the Seller adequate information or instructions.
4.3
Except as otherwise stated under the terms of any quotation or in any
price list of the Seller, and unless otherwise agreed in Writing between the
Buyer and the Seller:
4.3.1
All prices given for Products to be delivered anywhere in the world are
given by the Seller on an ex works basis, and where the Seller agrees to
deliver the Products otherwise than at the Premises, the Buyer shall be liable
to pay the Seller's charges for transport, packaging and insurance.
4.4
The price is exclusive of any applicable Value Added Tax, which the
Buyer shall be additionally liable to pay to the Seller.
5.1
Subject to any special terms agreed in Writing between the Buyer and
the Seller, the Seller shall be entitled to invoice the Buyer for the price of
the Products on or at any time after accepting the Buyer’s order for the
Products.
5.2
The Buyer shall pay the price of the Products (less any discount to
which the Buyer is entitled, but without any other deduction) within 14 days of
the date of the Seller's invoice or in any event prior to delivery of the
Products whichever is the sooner and the Seller shall be entitled to recover
the price, notwithstanding that delivery has not taken place and that property
in the Products has not passed to the Buyer.
The time of payment of the price shall be of the essence of the
Contract. Receipts for payment will be
issued only upon request.
5.3
If the Buyer fails to make any payment on the due date then, without
prejudice to any other right or remedy available to the Seller, the Seller
shall be entitled to:-
5.4.1
cancel the Contract or suspend any further deliveries to the Buyer;
5.4.2
appropriate any payment made by the Buyer to such of the Products (or
the goods supplied under any other contract between the Buyer and the Seller)
as the Seller may think fit
(notwithstanding any purported
appropriation by the Buyer); and
5.4.3
charge the Buyer interest (both before and after any judgment) on the
amount unpaid, at the rate of 3 per
cent per annum above the base rate of the Royal Bank of Scotland from time to
time, until payment in full is made (a part of a month being treated as a full
month for the purpose of calculating interest).
6.1
Delivery of the Products shall not be made until the Buyer has paid in
full to the Seller the Price of the Products less any discount to which the
Buyer is entitled, but without any other deduction.
6.2
Delivery of the Products shall be made by the Buyer collecting the
Products at the Premises at any time after the Seller has notified the Buyer
that the Products are ready for collection or, if some other place for delivery
is agreed by the Seller, by the Seller delivering the Products to that place.
6.3
Any dates quoted for delivery of the Products are approximate only and
the Seller shall not be liable for any delay in delivery of the Products
howsoever caused. Time for delivery
shall not be of the essence of the Contract unless previously agreed by the
Seller in writing. The Products may be
delivered by the Seller in advance of the quoted delivery date upon giving
reasonable notice to the Buyer.
6.4
Where delivery of the Products is to be made by the Seller in bulk, the
Seller reserves the right to deliver up to 5 per cent more or 5 per cent less
than the quantity ordered without any adjustment in the price, and the
`quantity so delivered shall be deemed to be the quantity ordered.
6.5
Where the Products are to be packed by the Seller, all such packaging
shall be at the Seller’s sole discretion.
6.6
Where the Products are to be delivered in instalments, each delivery
shall constitute a separate contract and failure by the Seller to deliver any
one or more of the instalments in accordance with these Conditions or any claim
by the Buyer in respect of any one or more instalments shall not entitle the
Buyer to treat the Contract as a whole as repudiated.
6.7
If the Seller fails to deliver the Products (or any instalment) for any
reason other than any cause beyond the Seller's reasonable control or the
Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's
liability shall be limited to the excess (if any) of the cost to the Buyer (in
the cheapest available market) of similar goods to replace those not delivered
over the price of the Products
6.8
If the Buyer fails to take delivery of the Products or fails to give
the Seller adequate delivery instructions at the time stated for delivery
(otherwise than by reason of any cause beyond the Buyer's reasonable control or
by reason of the Seller's fault) then, without prejudice to any other right or
remedy available to the Seller, the Seller may:-
6.8.1
store the Products until actual delivery and charge the Buyer for the
reasonable costs (including insurance) of storage; or
6.8.2
sell the Products at the best price readily obtainable and (after
deducting all reasonable storage and selling expenses) account to the Buyer for
the excess over the price under the Contract or charge the Buyer for any
shortfall below the price under the Contract.
7.1
Risk of damage to or loss of the Products shall pass to the Buyer:-
7.1.1
in the case of Products to be delivered at the Premises, at the time
when the Seller notifies the Buyer that the Products are available for
collection; or
7.1.2
in the case of Products to be delivered otherwise than at the Premises,
at the time of delivery or, if the Buyer wrongfully fails to take delivery of
the Products, the time when the Seller has tendered delivery of the Products.
7.2
Notwithstanding delivery and the passing of risk in the Products, or
any other provision of these Conditions, the property in the Products shall not
pass to the Buyer until the Seller has received in cash or cleared funds
payment in full of the price of the Products and all other goods agreed to be
sold by the Seller to the Buyer for which payment is then due
7.3
Until such time as the property in the Products passes to the Buyer,
the Buyer shall hold the Products as the Seller's fiduciary agent and bailee,
and shall keep the Products separate from those of the Buyer and third parties
and properly stored, protected and insured and identified as the Seller's
property, but shall be entitled to re-sell or use the Products in the ordinary
course of its business.
7.4
Until such time as the property in the Products passes to the Buyer
(and provided the Products are still in existence and have not been resold),
the Seller shall be entitled at any time to require the Buyer to deliver up the
Products to the Seller and, if the Buyer fails to do so forthwith, to enter
upon any premises of the Buyer or any third party where the Products are stored
and repossess the Products.
7.5
The Buyer shall not be entitled to pledge or in any way charge by way
of security for any indebtedness any of the Products which remain the property
of the Seller, but if the Buyer does so all moneys owing by the Buyer to the
Seller shall (without prejudice to any other right or remedy of the Seller)
forthwith become due and payable.
8.1
Subject to the conditions set out below the Seller warrants that the
Products will correspond with their specification at the time of leaving the
Premises.
8.2
The Seller warrants only that the Products will leave the Premises in
good condition. The Seller’s warranty
will not apply after any alteration operation or use whatsoever of Products by
the Buyer or any third party.
8.3
The above warranty is given by the Seller subject to the following
conditions:-
8.3.1
the Seller shall be under no liability in respect of any defect in the
Products arising from any drawing, design or specification supplied by the Buyer;
8.3.2
the Seller shall be under no liability under any condition or guarantee
if the total price for the Products has not been paid by the due date for
payment;
8.4
For the avoidance of doubt:
8.4.1
the Seller shall be under no liability in respect of any Products which
have been dismantled repaired or altered in any manner whatsoever without the
prior written consent of the Seller or which were operated or installed other
than in strict compliance with the Seller’s instructions and the Products’
intended use or which have been subjected to misuse, use other than that
intended, failure to maintain, improper or defective maintenance, accidental or
wilful damage or negligence on the part of the Buyer or a third party
8.4.2
the Seller shall be under no liability in respect of any defect arising
from fair wear and tear
8.5
Subject as expressly provided in these Conditions, and except where the
Products are sold to a person dealing as a consumer (within the meaning of the
Unfair Contract Terms Act 1977), all warranties, conditions or other terms
implied by statute or common law are excluded to the fullest extent permitted
by law.
8.6
Any claim by the Buyer which is based on any defect in the quality or
condition of the Products or their failure to correspond with specification
shall (whether or not delivery is refused by the Buyer) be notified to the
Seller within five days from the date of delivery or (where the defect or
failure was not apparent on reasonable inspection) within a reasonable time
after discovery of the defect or failure.
If delivery is not refused, and the Buyer does not notify the Seller
accordingly, the Buyer shall not be entitled to reject the Products and the
Seller shall have no liability for such defect or failure, and the Buyer shall
be bound to pay the price as if the Products had been delivered in accordance
with the Contract.
8.7
Where any valid claim in respect of any of the Products which is based
on any defect in the quality or condition of the Products or their failure to
meet specification is notified to the Seller in accordance with these
Conditions, the Seller shall be entitled to replace the Products (or the part
in question) free of charge or, at the Seller's sole discretion, refund to the
Buyer the price of the Products (or a proportionate part of the price), but the
Seller shall have no further liability to the Buyer.
8.8
Any Products which are returned to the Seller by the Buyer under this
clause 8 or for any other reason whatsoever must be returned to Lola House,
Glebe Road, St Peter’s Road, Huntington, Cambridgeshire PE29 7DS or such other
place as the Seller may from time to time direct.
8.9
Except in respect of death or personal injury caused by the Seller's
negligence, the Seller shall not be liable to the Buyer by reason of any
representation, (unless fraudulent), or any implied warranty, condition or
other term, or any duty at common law, or under the express terms of the
Contract, for any indirect, special or consequential loss or damage (whether
for loss of profit or otherwise), costs, expenses or other claims for
compensation whatsoever (and whether caused by the negligence of the Seller,
its employees or agents or otherwise)
which arise out of or in connection with the
supply of the Products or their use or resale by the Buyer, and the entire liability of the Seller under
or in connection with the Contract shall not exceed the price of the Products.
8.10
The Seller shall not be liable to the Buyer or be deemed to be in
breach of the Contract by reason of any delay in performing, or any failure to
perform, any of the Seller's obligations in relation to the Products, if the
delay or failure was due to any cause beyond the Seller's reasonable control.
Without prejudice to the generality of the foregoing, the following shall be
regarded as causes beyond the Seller's reasonable control:-
8.10.1
Act of God, explosion, flood, tempest, fire or accident;
8.10.2
war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.10.3
acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any
governmental, parliamentary or local authority;
8.10.4
import or export regulations or embargoes;
8.10.5
strikes, lock-outs or other industrial actions or trade disputes (whether involving
employees of the Seller or of a third
party);
8.10.6
difficulties in obtaining raw materials, labour, fuel, parts or
machinery;
8.10.7
power failure or breakdown in machinery;
8.10.8
computer hardware or software failure and interruptions to or breakdown
of the national or international telecommunications systems.
9.1
This clause applies if:-
9.1.1
the Buyer makes any voluntary arrangement with its creditors or (being an individual or
firm) becomes bankrupt or (being a company) becomes subject to an
administration order or goes into liquidation (otherwise than for the purposes
of amalgamation or reconstruction) or suffers any other analogous event or
proceeding under the laws of any jurisdiction to which it is subject; or
9.1.2
an encumbrancer takes possession, or a receiver is appointed, of any of
the property or assets of the
Buyer; or
9.1.3
the Buyer ceases, or threatens to cease, to carry on business; or
9.1.4
the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the
Buyer accordingly.
9.2
If this clause applies then, without prejudice to any other right or
remedy available to the Seller, the Seller shall be entitled to cancel the
Contract or suspend any further deliveries under the Contract without any
liability to the Buyer, and if the Products have been delivered but not paid for
the price shall become immediately due and payable notwithstanding any previous
agreement or arrangement to the contrary.
10.1
Any notice required or permitted to be given by either party to the
other under these Conditions shall be in Writing addressed to that other party
at its registered office or principal place of business or such other address
as may at the relevant time have been notified pursuant to this provision to
the party giving the notice.
10.2
No waiver by the Seller of any breach of the Contract by the Buyer
shall be considered as a waiver of any subsequent breach of the same or any
other provision.
10.3
If any provision of these Conditions is held by any competent authority
to be invalid or unenforceable in whole or in part the validity of the other
provisions of these Conditions and the
remainder of the provision in question
shall not be affected thereby.
10.4
The Contract shall be governed by the laws of England, and the Buyer
agrees to submit to the non-exclusive jurisdiction of the English courts.