Terms-of-service
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Terms and Conditions for the sale of Merchandise
1. Interpretation
1.1. In these Conditions the following words have the following meanings:-
“Buyer” means the person who accepts the Seller’s quotation or current parts sales list for the sale of the Goods or the supply of the Services or whose order for the Goods or Services is accepted by the Seller
“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.
“Contract” means the contract for the purchase and sale of the Goods and the supply of the Services.
“Contract for Goods” means that part of the Contract (if any) which relates to the purchase of Goods.
“Contract Date” means the date when the Seller’s written quotation (if any) is accepted by the Buyer or the Buyer’s order (if any) is accepted by the Seller.
“Customised Goods” means Goods which are to be specially manufactured by the Seller or to which any process is to be applied by the Seller in accordance with a specification submitted by the Buyer.
“Delivery Address” means Messerschmitt Owners’ Club, Lonsdale, Dark Lane, Stoke St Gregory, Taunton TA3 6EU.
“Goods” means the goods, which the Seller is to supply in accordance with these Conditions.
“Seller” means Messerschmitt Owners’ Club Limited trading as Messerschmitt Owners’ Club (registered in England & Wales under number 5416245) whose registered office is at Sovereign House, Arkwright Way, Scunthorpe DN16 1AD.
“Services” means the services (if any), which the Seller is to supply in accordance with these Conditions.
“Warranty Period” means 12 months from the date of delivery of the Goods or such shorter period as notified by the Seller to the Buyer before the Contract Date or where the Seller is providing Services 30 days from the date of completion of such Services.
“Writing” includes facsimile transmission and comparable means of communication.
1.2. The headings in these conditions are for convenience only and shall not affect their interpretation.
2. Basis of the sale
2.1. The Seller shall sell and the Buyer shall purchase the Goods and the Seller shall provide the Services to the Buyer 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.
2.1.1. No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Seller and the Buyer.
2.1.2. The Seller’s employees or agents are not authorised to make any representations concerning the Goods or the Services unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations, which are not so confirmed in Writing.
2.1.3. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the application or use of the Goods 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 in Writing.
3. Orders and specifications
3.1. The quantity, quality and description of and any specification for the Goods 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). Where any Goods are unavailable the Seller reserves the right to supply substitute products of an equivalent quality and price to those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.2. If the Goods are specially manufactured for 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 patent, copyright design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.3. The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
4. Consumer’s Right to Cancel an Order for Goods
4.1. The provisions of this Condition 4 only apply where the Buyer is a consumer as defined in the Consumer Protection (Distance Selling) Regulations 2000 and purchases by means of a distance contract as defined in the same.
4.2. Save where the Goods are specially manufactured, in which case the Buyer may not cancel any part of the Contract for Goods which relates to are specially manufactured, the Buyer may cancel a Contract for Goods for any reason up to the end of seven working days after the Buyer receives the Goods by giving written notice to the Seller by hand or post, fax or email at the address, fax number or email address of the Seller giving details of the Goods ordered and (where appropriate) their delivery. In these circumstances the Buyer can obtain a refund from the Seller equal to the amount of the price payable under the Contract for Goods (together with any VAT thereon). The Buyer may not cancel part of a Contract for Goods.
4.3. If the Buyer exercises the right to cancel the Contract for Goods set out in Condition 4.1 then:
4.3.1. the Buyer is entitled to a refund from the Seller of all amounts that the Buyer has paid under the Contract for Goods (together with any VAT thereon) within 30 days of the receipt by the Seller of the notice of cancellation in Writing; and
4.3.2. the Buyer must return the Goods to the Seller at Lonsdale, Dark Lane, Stoke St Gregory, Taunton TA3 6EU by courier within 7 days of giving notice of cancellation in Writing to the Seller. The Buyer is required to take reasonable care of the Goods and to ensure that the parcel containing the Goods is received by the Seller. The Buyer must pay the cost of returning the Goods to the Seller.
4.4. Goods purchased and delivered to the buyer otherwise than by means of distance communication may be returned to the Company in original packaging (and without being installed or used and with all relevant seals and enclosures intact) for credit within 7 days of receipt by the buyer, subject to a restocking charge of not less than 20% of the value of the order. Credit shall be subject to the buyer producing proof of purchase and returning goods carriage paid. Special order goods shall not be returnable by virtue of this clause.
5. Price of the goods and services
5.1. The price of the Goods and the Services shall be the Seller’s as stated on the current published price list. All prices quoted are valid for [30] 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.
5.2. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods or Services 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, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods or Services which is requested by the Buyer, or any delay caused by the Buyer, its agents or contractors or failure of the Buyer to give the Seller adequate information or instructions.
5.3. Except as otherwise stated under the terms of any quotation and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given on an ex works basis and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
5.4. The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
6. Terms of payment
6.1. Subject to any special terms agreed in Writing between the Buyer and the Seller, payment for Goods and/or Services is due prior to the despatch of the Goods and/or performance of the Services.
6.2. The time for payment of the price shall be of the essence of the Contract.
6.3. 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:-
6.3.1. cancel the Contract or suspend any further deliveries to the Buyer;
6.3.2. appropriate any payment made by the Buyer to such of the Goods (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
6.3.3. charge the Buyer interest (both before and after any judgment) on the amount unpaid which shall accrue from the date when payment becomes due from day to day until the date of payment at the rate calculated in accordance with the provisions of the Late Payment of Commercial Debts Regulations 2002 at the end of the day actual payment is due.
7. Delivery
7.1. The Seller shall deliver the Goods to the Buyer at the Delivery Address unless otherwise agreed.
7.2. Any dates quoted for delivery of the Goods and/or the completion of Services are approximate only and the Seller shall not be liable for any delay in delivery of the Goods and/or the completion of the Services howsoever caused. Time for delivery of Goods and/or completion of the Services shall not be of the essence.
7.3. Where the Goods 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.
7.4. If the Seller agrees to despatch the Goods to the Buyer save where the Goods are specially manufactured:
7.4.1. the Goods will be dispatched to the Buyer by the Seller within 21 days of the Contract Date;
7.4.2. if the Seller is unable to dispatch the Goods to the Buyer within the time period referred to in Condition
7.4.1 the Buyer may contact the Seller and cancel the order. In that case the Seller will refund any money paid by the Buyer for the Goods.
7.5. The Seller will not be liable for any loss, costs, damages, charges or expenses caused by any delay in the delivery of the Goods or performance of the Services.
7.6. If Goods are lost before delivery the Seller’s liability shall be limited to replacing the Goods within a reasonable time or issuing a refund. The Buyer must however notify the Seller if the Goods have not been received within 30 days of the Contract Date.
7.7. If the Seller fails to deliver specially manufactured goods or to complete the Services 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 or services to replace those not delivered or performed over the price of the Goods and Services.
7.8. The Buyer shall inspect the Goods immediately on delivery and shall have no claim in respect of any shortage or defect apparent on inspection unless the Buyer notifies the Seller within 3 days of delivery.
8. Risk and property
8.1. Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery.
8.2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods and services agreed to be sold and supplied by the Seller to the Buyer for which payment is then due.
8.3. Until such time as the property in the Goods passes to the Buyer, the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible.
8.4. Until such time as the property in the Goods passes to the Buyer (and provided the Goods 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 Goods to the Seller, and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party (insofar as this is permitted by law) where the Goods are stored and repossess the Goods.
8.5. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods 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.
9. Warranties and liabilities
9.1. Where the Seller is not the manufacturer of the Goods, the Seller will endeavour to transfer to the Buyer the benefit of any Warranty or guarantee given to the Seller.
9.2. Advice given by agents or servants of this company during telephone/Internet orders is based entirely upon information given by the purchaser with no inspection undertaken. As such, all advice given is indicative only and all such advice should be checked by the purchaser prior to order. Where advice is given after visual inspection by agents or servants of this company, such advice shall amount to an opinion only. Additionally, goods supplied are supplied only to correspond to the purpose for which goods of that kind are commonly supplied and not alternative uses to which they may be put. No liability for failure can be accepted by this company for such alternative use, amendment or modification.
9.3. Subject to the other provisions of these Conditions the Seller warrants that:
9.3.1. any goods which are described by the Seller as “road car parts” will be of satisfactory quality within the meaning of the Sale of Goods Act 1994.
9.3.2. the seller will perform the Services with reasonable skill and care.
9.4. The above warranties are given by the Seller subject to the following conditions:-
9.4.1. the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
9.4.2. Goods ordered by the Buyer may not be compatible with vehicles that have been modified, adapted or altered. Where goods ordered by the Buyer are not compatible by reason of modification, adaptation or alteration, the Company may accept such goods back into stock entirely at its discretion, and shall either issue a refund or credit to the purchaser except where goods are specifically ordered for the purchaser where no such refund or credit will operate.
9.4.3. Where goods purchased by the Buyer are alleged to be defective, the Buyer agrees to return such goods to the Seller for inspection and report (without the seller replacing the said goods prior to such inspection). The Buyer also accepts that it is reasonable to inform the seller of any interruption, defect or other failure prior to contacting independent third parties or incurring expense and, in addition, to allow the seller to remedy the defect, failure or interruption. Parts modified or adapted by the purchaser shall no longer be warranted by the manufacturer nor shall the Company be liable for any failures resulting subsequent to modification as a result of such modification.
9.4.4. the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, incorrect fitting, abnormal working conditions including but not limited to modified Messerschmitts (including racing), failure to follow the Seller’s instructions (whether oral or in writing including but not limited to the use of parts described by the Seller as “road car parts” in a modified or competition vehicle), misuse or alteration or repair of the Goods without the Seller’s approval;
9.4.5. No liability is accepted by the company where purchasers attempt to modify or install components supplied where it is known or ought reasonably to be known to the Purchaser that the part supplied is incorrectly supplied or otherwise not in accordance with the order.
9.4.6. the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods or Services has not been paid by the due date for payment;
9.4.7. the Seller shall have no liability or obligations under the said warranties unless the seller shall have received written notice of the defect damage or other breach in question no later than the expiry of the Warranty Period.
9.5. The Seller shall have no liability or obligations:
9.5.1. under the warranty in Condition 9.3.1 other than to remedy breaches thereof by the provision by the Seller of any replacement Goods within a reasonable time and without charge to the Buyer;
9.5.2. under the warranty in Condition 9.3.2 other than to remedy breaches thereof by the provision by the Seller of materials and services within a reasonable time and without charge to the Buyer.
9.6. The Seller’s liability to the Purchaser for death or personal injury resulting from its own or that of its employees’ agents’ or subcontractors’ negligence shall not be limited.
9.7. Save as provided in Condition 9.6, to the extent that the Seller has any liability to the Buyer for breach of contract or negligence its liability shall be limited to a sum equal to the price under the Contract.
9.8. Save as provided in Condition 9.6 the Seller shall not be liable for loss of profits, goodwill or any type of special, indirect or consequential loss which falls into the following categories:
9.8.1. special damage even though the Seller was aware of the circumstances in which such special damage could arise; or
9.8.2. loss of:
9.8.2.1. profits;
9.8.2.2. enjoyment
9.8.2.3. anticipated savings;
9.8.2.4. business opportunity; or
9.8.2.5. goodwill; or
9.8.3. the cost of:
9.8.3.6. removal of defective Goods, installation of replacement or repaired Goods and any rectification work or labour required in connection with such removal or installation;
9.8.3.7. any wasted expenditure; or
9.8.3.8. mitigation
9.9. 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 Goods or Services, 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:-
9.9.1. act of God, explosion, flood, tempest, fire or accident;
9.9.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.9.3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
9.9.4. import or export regulations or embargoes;
9.9.5. difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.9.6. power failure or breakdown in machinery.
9.10. Except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) the express terms of these conditions are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
9.11. The Buyer acknowledges that the limitations and exclusions of liability contained in this Condition 9 are fair and reasonable particularly because the Buyer has or ought to have insurance in respect of any damage or injury caused to or by the Buyer’s vehicle.
9.12. Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
10. General
10.1. Any notice required 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 provisions in question shall not be affected thereby.
10.4. These terms and this agreement (including an agreement concluded by means of distance communication) shall be interpreted in accordance with English Law and industry custom and practice, and English and Welsh courts shall have sole jurisdiction in respect of any dispute arising therefrom.
10.5. A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.