Terms and Conditions
Interpretation and General
In these Conditions: ‘Buyer’ means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller; ‘Goods’ means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions; ‘Seller’ means Japanese 4x4 Spares Limited of Holly Farm Business Park, Honiley, Kenilworth, Warwickshire CV8 1NP; ‘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.
The Buyer may not assign or transfer any of its rights or obligations under the Contract without the prior consent in writing of the Seller.
The Contract shall be governed by the laws of England
Basis of the Sale
The Seller shall sell and the Buyer shall purchase the Goods 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.
No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents (or contained in the Seller’s data-sheets or other literature) as to the storage, application or use of the Goods is given in good faith but is followed or acted upon entirely at the Buyer’s own risk. Any recommendation or suggestion relating to the use of goods made by the Company whether in technical literature or in response to specific enquiry is given in good faith, but it is for the Buyer to satisfy himself of the suitability of the goods for his particular purpose, and he shall be deemed to have done so. Accordingly, the Seller shall not be liable for any such advice or recommendation.
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.
Orders and Specifications
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.
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 in relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
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).
If the Goods are to be manufactured or any process is to be applied to the Goods 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 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.
Orders cannot be cancelled or rescheduled nor the Goods returned by the Buyer without the Seller’s consent and on terms, which will indemnify the Seller against all loss.
Price of the Goods and Terms of Payment
The price of the Goods 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. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time the Seller may alter them without giving notice to the Buyer.
The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods 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 Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
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, all prices are given by the Seller on an ex work 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.
The price is inclusive of any applicable VAT, which the Buyer shall be additionally liable to pay the Seller.
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 Goods on or at any time after the delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
The Buyer shall pay the price of the Goods in cash within 30 days of the date of the Seller’s invoice notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of essence of the Contract. Receipts of payment will be issued only upon request.
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 (a) cancel the Contract or suspend any further deliveries to the Buyer; (b) 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 (c) charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 3 percent per annum above the Royal Bank of Scotland base rate 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).
Ownership or Title to the product shall not pass to the buyer until the company has received payment in full. In the event that sums owing in respect of other items ordered remain due, apportionment by this company shall take place without prejudice to the right to retain title or ownership in respect of all goods ordered.
Delivery times will be quoted at time of order and all times given for despatch or delivery are approximate and time shall not be of the essence
The Buyer is required to notify the company, in writing, of any shortage, misdelivery or other discrepancy immediately, or at the latest within 48 hours of such shortage, misdelivery or failure, thereafter the buyer shall be liable for any such discrepancy.
Delivery and packing prices indicated within the Companies Brochures and Internet Site are subject to change and will be confirmed at the time of order. Buyers outside the United Kingdom and Europe shall be quoted approximate prices for delivery and packing prior to order confirmation. If required the Company shall quote for delivery and packing in such instances and confirmation of acceptance shall be required from the Buyer prior to acceptance of order.
The Seller will give the Buyer credit in respect of ‘Exchange Units’ provided that the unit is returned within 90 days of the date if sale of the new unit and the exchange unit is returned in a condition and to a specification acceptable to the Manufacturer and the date of return forms part of the Manufacturer’s Exchange Plan. The Seller reserves the right to refuse to give the Buyer credit if in the Seller’s opinion the Manufacturer will not give the Seller credit for the Exchange Unit. Notwithstanding the above the Seller reserves the right to levy such charge upon the Buyer as the seller shall deem appropriate in order to render the ‘Exchange Unit’ in a condition acceptable for return to the Manufacture.
Risk and Property
Risk of damage to or loss of the Goods shall pass to the Buyer (a) in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies for the Buyer that the Goods are available for collection; or (b) in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods. 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 agreed to be sold by the Seller to the buyer for which payment is then outstanding.
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 where the Goods are stored and repossesses the Goods.
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.
Warranties and Liability
Subject to the condition set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire.
All Reconditioned Exchange items have a warranty period of 6 months.
The above warranty is given by the Seller subject to the following conditions:
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;
the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval.
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 has not been paid by the due date for payment;
the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller,
For trade buyers, the company is hereby excluded from any liability, howsoever arising, in respect of any express or implied condition, warranty or term, statement, representation whether statutory or otherwise, relating to the goods supplied. The trade buyer accepts that he is best placed to insure against losses, which arise by virtue of any breach of this agreement, and warrants that he carries adequate insurance in this respect.
Goods must be checked for suitability and tolerance prior to fitting or preparation. No responsibility whatsoever is accepted for the fitment of incorrect parts. The responsibility is clearly with the purchaser/fitter to ensure the parts supplied are correct for the particular job. The Company is not responsible for any damage or consequential losses or cost resulting from the fitment of parts supplied.
Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, condition or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
Where goods purchased by the buyer are alleged to be defective, the purchaser agrees to return such goods to the seller for inspection and report (without the seller replacing the said goods prior to such inspection). The purchaser 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.
Competition goods are supplied for specialist use and are subject to extreme heat and stress whilst in use. Life expectancy and durability are greatly reduced and purchasers should note that any claim for failure/wear, shall not be entertained by the Company. It is acknowledged by the buyer of such goods that the foregoing statement shall be a relevant and important issue in any claim brought against the Company and the Company shall, in turn, place importance upon this clause. In addition, parts connected to parts supplied by this company may be placed under stress where specialist/competition parts are used, and purchasers should take advice from experts prior to purchase. Manufacturers may also limit guarantees when components are installed for competition use.
Where the Goods are sold under a common transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976), the statutory rights of the Buyer are not affected by these Conditions.
Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 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 modify the Seller accordingly, the Buyer shall not be entitled to reject the Goods 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 Goods had been delivered in accordance with the Contract.
Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no liability to the Buyer.
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 (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 Goods 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 Goods, except as expressly provided in these Conditions.
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, 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:
Act of God, explosion, flood, tempest, fire or accident;
War or threat of war, sabotage, insurrection, civil disturbance or requisition;
Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
Import or export regulation;
Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
Power failure or breakdown in machinery.
If any claim is made against the Buyer that the Goods infringe or that their normal use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss damages, costs and expense awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that (a) the seller is given full control of any proceedings or negotiations in connection with any such claim; (b) the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations; (c) except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonable withheld); (d) the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do); (e) the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and (f) without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
Where the Seller publishes a data-sheet or other literature in relation to any Goods, the Seller shall not be liable to indemnify the Buyer as provided at clause 8.1 above in respect of any claim arising from the Buyer’s use (or resale for use) of such Goods in any process or at any temperatures not specifically indicated by such data-sheet or other literature.
Insolvency of Buyer
This clause applies if (a) the Buyer makes any voluntary arrangement with its creditors or becomes subject to administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or (b) and encumbrancer takes procession or a receiver is appointed, of any of the property or assets of the Buyer; or (c) the Buyer ceases, or threatens to cease, to carry on business; or (d) 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.
If this cause 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 or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.