In this document the following words shall have the following meanings:
1.1 “Buyer” means the organisation or person who owns the Vehicle;
1.2 “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.3 “Delivery date” means the date specified by the Seller when the Goods are to be delivered;
1.4 “Vehicles” means the articles owned by the Buyer which have been submitted to the Seller for Works by the Buyer;
1.5 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.6 “Price” means the price set out in the list of prices of the Goods maintained by the Seller as amended from time to time or such other price as the parties may agree in writing plus such carriage, packing, insurance or other charges or interest on such as may be quoted by the Seller or as may apply in accordance with these conditions;
1.7 “Seller” means Able Mobility Solutions Ltd, The Coachworks Centre Unit 30 Dynea Road, Pontypridd, Rhondda Cynon Taff, CF37 5DN.
1.8 “Works” means any kind of investigations, repairs, upgrades, or adaptation to the Vehicle including any accessories or additions fitted to the vehicle.
1.9 “Estimate” means any kind of submission to the Buyer of estimated costs, whether in part or full, associated with Works to Vehicles.
1.10 “Invoice” means any kind of submission to the Buyer of the costs due, whether in part or full, associated with Works to Vehicles.
1.11 “Agreed spend limit” means the limit applied to the total Price of Works which have been specified by the Buyer when booking the Vehicles.
2.1 These conditions shall apply to all contracts for Works by the Seller to Vehicles which are supplied by the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may seek to apply under any contract, agreement, purchase order, order confirmation or similar document.
2.2 All submissions of Vehicles shall be deemed to be an offer by the Buyer to commission the Seller to perform Works to Vehicles pursuant to these Conditions.
2.3 Submission of the Vehicles to the Seller for Works shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties including without limitation as to discounts) shall be inapplicable unless agreed in writing by the Seller.
2.5 Any advice, recommendation or representation 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 Vehicles or otherwise 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, recommendation or representation which is not so confirmed.
2.6 Nothing in these Conditions shall affect the statutory rights of any Buyer dealing as a consumer.
3.1 Payment of the Price is strictly cash upon approval of any Estimate, or upon the creation of any Invoice, unless a credit account has been established with the Seller in which event payment of the Price is due 30 days following the date of invoice.
3.2 The Seller shall be entitled to charge late payment fees and interest on overdue invoices from the date when payment becomes due.
3.2.1 The seller shall be entitled to charge an admin fee of £25 for each reminder message, letter or invoice that is produced and forwarded to the buyer in the event of non-payment of all, or part, of an Invoice after it has become due.
3.2.2 The seller shall be entitled to charge interest which will accrue from day to day until the date of payment at a rate of 8% per annum above the base rate of the Bank of England from time to time.
3.3 The Seller reserves the right to grant, refuse restrict, cancel or alter credit terms at its sole discretion at any time.
3.4 If payment of the Price or any part thereof is not made by the due date, the Seller shall be entitled to:
3.4.1 Require payment in advance of collection or delivery of Vehicles upon completion of Works;
3.4.2 Refuse to make delivery of any Vehicles or make any Vehicles available for collection if payment of the Price has not been received from the Buyer whether Works have been ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
3.4.3 Appropriate any payment made by the Buyer to such of the Works (or Works supplied under any other contract) as the Seller may think fit;
3.4.4 Terminate the contract.
3.5 The Agreed spend limit is applicable only to the repairs or investigations reported at the time of booking, it does not cover the cost of transport or any additional work that was not declared when the job was originally booked.
3.6 Any fault(s) discovered during the investigation, or reported by the client, after this document has been signed will be subject to additional fees and are exempt from the ‘Agreed spend limit’.
3.7 If the need arises to increase the Agreed spend limit, the Buyer will be contacted by the Seller to request permission to increase the Agreed spend limit.
3.8 Should an increase to the Agreed spend limit not be approved, the Works will cease once the Agreed spend limit has been reached, and the Price for the Works that have been completed will become due for payment to the Seller.
4.1 Any description given or applied to the Works is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering the contract.
5.1 Where a sample of the Works is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so far as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing, delivery of the Vehicles shall occur after completion of the Works and will take place at the address specified by the Buyer on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Vehicles whenever they are tendered for delivery.
6.2 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract and while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Buyer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery date stated.
6.3 If the Seller is unable to deliver the Vehicles for reasons beyond its control, then the Seller shall be entitled to place the Vehicles in storage until such time as delivery may be effected and the Buyer shall be liable for any expense associated with such storage.
6.4 If the Buyer fails to accept delivery of Vehicles on the delivery date or within 3 days of notification that they are ready for despatch whether prior to or after the delivery date the Seller reserves the right to invoice the Buyer for any fees and costs associated with the failure to accept delivery and charge the Buyer therefore. In addition, the Buyer shall then pay reasonable storage charges or demurrage as appropriate in the circumstances until the Vehicles are either despatched to the Buyer or disposed of elsewhere.
6.5 The Seller shall be entitled to deliver the Works by instalments and where the Works are so delivered, 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 any other related contract as repudiated.
6.6 Where the Buyer requires delivery of the Works by instalments, rescheduling requires the Seller’s written agreement and will not be possible unless at least 5 working day’s written notice is provided and so agreed. Each delivery shall constitute a separate contract and failure by the Buyer to pay the Price in respect of any instalment shall entitle the Seller to treat any other related contract as repudiated in addition to any other rights of the Seller pursuant to these Conditions.
6.7 Notwithstanding that the Seller may have delayed or failed to deliver the Works (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Works in full.
6.8 If the buyer fails to collect or accept delivery of the Vehicles (or any of them) on the agreed delivery date the Buyer shall be bound to pay for the Works in full and any fees and costs associated with the missed delivery.
7.1 The Seller is a distributor of Works and the Buyer is exclusively responsible for detailing the specification of the Works, for ascertaining the use to which they will be put and for determining their ability to function for that purpose.
7.2 The Buyer is required to test Vehicles upon delivery and shall be deemed to have accepted the Works upon collection by, or delivery to, the Buyer. Accordingly, no claim for defect, damage or quality will be entertained (without prejudice to the Seller’s other rights pursuant to these Conditions) unless written notice together with all supporting evidence is received by the Seller within 14 days of collection by the Buyer or delivery by the Seller. After acceptance the Buyer shall not be entitled to reject Works which are not in accordance with the contract.
7.3 The Buyer shall not remove or otherwise interfere with the marks or numbers on items associated with the Works.
7.4 The Buyer shall accept delivery of the Works tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased.
8.1 Risk of damage or loss of the Vehicles shall pass to the Buyer in the case of Vehicles to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Works are completed and the Vehicles are available for collection, or in the case of Vehicles to be delivered otherwise than at the Seller’s premises, at the time of delivery.
8.2 Notwithstanding delivery and the passing of risk in the Vehicles, or any other provision of these conditions, the property in the Vehicles shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price of the Works and of all other Works agreed to be sold by the Seller to the Buyer for which payment is then due.
8.3 Until such time as the property in the Works passes to the Buyer, the Buyer shall hold the Vehicles as the Seller’s fiduciary agent and bailee, and shall keep the Vehicles separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property.
8.4 Until payment of the Price the Buyer shall be entitled to resell or use the Works in the course of its business but shall account to the Seller for the proceeds of sale or otherwise of the Works, whether tangible or intangible including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
8.5 Until such time as the property in the Works passes to the Buyer (and provided that the Works 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 Works to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or of any third party where the Works are stored and repossess the Works.
8.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Works which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.7 The Seller shall be entitled to recover the Price notwithstanding that property in any of the Works has not passed from the Seller.
9.1 If the Buyer fails to make payment for the Works in accordance with the contract of sale or commits any other breach of this contract of sale or if any distress or execution shall be levied upon any of the Buyer’s property or the Works or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented of if a receiver, administrator administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law or if any such matter as provided for in this clause is reasonably apprehended by the Seller all sums outstanding in respect of the Works shall become payable immediately.
9.2 The Seller may in the circumstances set out in clause 9.1 above also in its absolute discretion, and without prejudice to any other rights which it may have, exercise any of its rights pursuant to clause 8 above.
10.1 All Works come with a 12-month warranty, subject to the following conditions;
10.2 Where the Works are found to be defective, the Seller shall, replace defective Works free of charge within the manufacturer’s warranty period if acceptable from the date of delivery, subject to the following conditions;
10.2.1 The Buyer notifying the Seller in writing immediately upon the defect becoming apparent;
10.2.2 The Buyer stops using the Vehicles immediately upon the defect becoming apparent;
10.2.3 The defect being due to faulty design, materials or workmanship;
10.3 Any Works to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
10.4 Where the Works have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Works shall be passed on to the Buyer and the Buyer shall have no other remedy against the Seller.
10.5 The Seller shall be entitled in its absolute discretion to refund the Price of the defective Works if the Price has already been paid.
10.6 The remedies contained in this Clause are without prejudice and subject to the other Conditions herein, including, but without limitation, to conditions 11 and 12 below.
11.1 No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:-
11.1.1 The correspondence of the Works with any description or sample;
11.1.2 The quality of the Works; or
11.1.3 The fitness of the Works for any purpose whatsoever.
11.2 No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to:
11.2.1 The correspondence of the Works with any description;
11.2.2 The quality of the Works; or
11.2.3 The fitness of the Works for any purpose whatsoever.
11.3 Except where the Buyer deals as a consumer all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Works, whether express or implied by statute or common law or otherwise are hereby excluded from the contract to the fullest extent permitted by law.
11.4 For the avoidance of doubt the Seller will not accept any claim for consequential or financial loss of any kind however caused.
12.1 Where any court or arbitrator determines that any part of Clause 11 above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer but in an amount not exceeding the Price.
12.2 Nothing contained in these Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence or that of its employees or agents.
13.1 Where any Works supplied by us embody, include or contain computer program(s) and/or related documentation the copyright in which is owned by a third party, all rights and liabilities associated with the use and/or reproduction thereof will be subject to the terms of the applicable end user licence, to the exclusion of all liabilities and obligations on our part.
13.2 The Buyer will indemnify us against all liabilities for infringement of third-party intellectual property rights arising from our compliance with the Buyer’s specific requirements regarding design or specification for the Works or arising from the use of the Works in combination with other products.
13.3 In the event that all the Works or the use thereof (subject as aforesaid) are held to constitute an infringement of any intellectual property rights and the use is thereby prevented, the will at its own expense and option either procure for the Buyer the right to continue using the Works or replace the same with a non-infringing product, or modify the Works so that they become non-infringing, or may elect to retake possession of the Works and refund the Price. Subject to the foregoing, the Seller shall be under no liability to the Buyer for any loss, damage or enquiry, whether direct or indirect, resulting from any intellectual property right infringement of the Works.
13.4 All Intellectual Property Rights produced from or arising as a result of the performance of any contract shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
13.5 All orders are processed in accordance with the quality system elements of ISO 9002 however the Works may not have been procured from a quality assured source unless there is an asterisk (*) against the relevant items.
14.1 The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may without liability on its part, terminate the contract or any part of it.
15.1 Nothing contained in these Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Conditions shall be deemed to construe either of the parties as the agent of the other.
16.1 The contract between the Buyer and Seller for the sale of Works shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.
17.1 The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Conditions of this Agreement.
18.1 If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
19.1 The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever.
20.1 These Conditions and any documents incorporating them or incorporated by them constitute the entire agreement and understanding between the parties.
21.1 This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusion jurisdiction of the English courts.
