IFOR WILLIAMS TRAILERS
Cynwyd, Corwen, Denbighshire LL21 0LB
TERMS AND CONDITIONS OF SALE
These conditions apply when you are purchasing Goods from us other than as a Consumer.
1. DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions the following terms have the following meanings:
"Associate" means, in relation to us, any company that is our holding company, subsidiary or a subsidiary of our holding company and the expressions "subsidiary" and "holding company" shall have the same meaning as in Sections 736 and 736A of the Companies Act 1985 (as amended from time to time);
"Authorised Distributor" means a distributor who has been authorised by us or any Associate to sell, maintain and repair the Goods;
"Conditions" means these terms and conditions for the sale and purchase of Goods;
"Consumer" means any natural person who purchases Goods other than in the course of his or her business, trade or profession or for use in their business, trade or profession;
"Contract" means any contract for the sale by us and purchase by you of Goods;
"Delivery" means delivery of the Goods by us to the applicable place of destination or, as the case may be, the Goods being ready for collection by you;
"Goods" means any goods to be supplied by us to you;
"Price" means all sums payable by you to us for the Goods;
"us", "our" or "we" refers to the seller of the Goods under a Contract which is Ifor Williams Trailers Limited or any of its Associates which is named or identified as seller in any acceptance of your order or otherwise in the course of formation of the Contract in question; and
"Trailer" means Goods comprising any trailer, transporter, horsebox container or pick-up canopies or similar, but excluding spare parts and accessories, which are manufactured or assembled in volume by us or any of our Associates or in accordance with specifications and production standards provided by us or any of our Associates;
"you" or "your" refers to the customer buying the Goods from us.
1.2 In these Conditions, unless otherwise stated:
(a) the singular includes the plural and vice versa;
(b) cognate expressions derived from the above definitions shall be construed accordingly; and
(c) "in writing" includes emails.
1.3 Where you are an Authorised Distributor the Contract is also subject to the terms of your distributor agreement.
2 APPLICATION OF CONDITIONS AND FORMATION OF CONTRACT
2.1 These Conditions apply to all Contracts where you are purchasing other than as a Consumer and exclude and supersede all other terms and conditions (including without limitation any terms or conditions which you purport to apply under any purchase order, confirmation of order or other document or through any course of dealing).
2.2 In the case of your order for a Trailer, the Contract between you and us is formed only when we allocate a serial number for a Trailer so ordered on our electronic order processing system and, in the case of any other Goods, only when we record your order as a confirmed order on that system.
2.3 The images of the Goods on our website or in our catalogue or brochure are for illustrative purposes only. Your Goods may vary slightly from those images.
2.4 It is always possible that despite our best efforts, some of the Goods we sell may be incorrectly priced. We will normally check prices as part of our despatch procedures so that, where the Goods' correct price is less than our stated price, we will charge you the lower amount when dispatching the Goods to you. If the Goods' correct price is higher than the price stated on our website or in our catalogue or brochure we will contact you to tell you and for your instructions. If the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing we do not have to provide the Goods to you at the incorrect (lower) price.
3 PRICE AND PAYMENT
3.1 The Price is exclusive of VAT which is payable by you in addition to the Price.
3.2 Except where payment is made by you immediately on entering into the Contract, you will pay us for the Goods in accordance with any terms we have notified to you before the Contract is made. If we have not provided you with any such notification, the Price will be payable not later than the date of Delivery.
3.3 Unless we expressly agree otherwise, you must pay all invoices by BACS direct payment or by such other means of electronic funds transfer as we approve to such bank account as we have notified or may notify to you for this purpose from time to time.
3.4 Without prejudice to any other rights or remedies to which we may be entitled, we will have the right to charge you interest on any overdue amounts from the date payment falls due until the day immediately prior to the date payment is made (whether before or after judgment) at the rate of 8% above the Bank of England base lending rate. Such interest will accrue on a daily basis and be compounded annually.
3.5 If you fail to pay the Price on the date on which payment becomes due we and our Associates will be entitled (in addition to any other remedies we may have) to suspend any further Delivery to you under the Contract in question or any other contract until actual payment is made in full.
4 DELIVERY AND RISK
4.1 We will deliver the Goods to you to an agreed place of destination.
4.2 We will charge you for the cost of delivery in addition to the Price (if not included within the price) in accordance with our published terms for such costs in force when the Contract is made.
4.3 Subject to Condition 4.4, risk passes to you on Delivery.
4.4 Where the agreed place of destination is your premises, you must ensure that safe, adequate and accessible unloading and discharging facilities (including manual labour) and arrangements are available at the delivery address for unloading the Goods upon their arrival and, without prejudice to the generality of the foregoing, must ensure that such unloading and discharging facilities and arrangements comply with any applicable health and safety legislation, rules and/or regulations in force from time to time. You will be responsible for and bear the risk of any damage caused to the Goods or the property of any person and/or any injury suffered by any person during off-loading of the Goods at that place.
4.5 If we delay in delivering any Goods to you for a period of not less than 30 days then following expiry of that period you are entitled by not less than 5 days' written notice to cancel the Contract in respect of those Goods affected by the delay, but you are not otherwise entitled to cancel for delay. However, you may not cancel in respect of any Goods which we Deliver prior to your sending us such notice or the expiry of such notice.
4.7 Immediately upon the Goods being Delivered to you, you must carry out with reasonable care and
diligence a visual examination thereof and promptly report to us any damage, defect or failure to comply with the Contract which is disclosed by such examination. Such report must be made so as to be received by us on the same day on which Delivery is made. Except to the extent of such report, the Goods will be deemed free from such damage, defect or lack of compliance as is or ought reasonably to be apparent upon examination being carried out in accordance with this Condition.
5 OWNERSHIP OF THE GOODS
5.1 Ownership of the Goods does not pass to you unless and until we receive payment in full in cleared funds of the Price together with any VAT, delivery and other charges under the Contract and of any other sums which are due by you under any other contract between us and you. We may maintain an action for the Price of Goods supplied to you notwithstanding that the property in and title to them has not passed to you.
5.2 Until title to the Goods passes to you, you:
(a) must at your expense insure the Goods for their full replacement value against all usual risks;
(b) must keep the Goods safe and in good condition, stored separately and clearly identifiable as our property; and
(c) must not sell or part with possession or control of the Goods other than a sale of them in good faith and in the ordinary course of your business.
Your right to possession of the Goods will terminate immediately on notice from us which we may serve if you are in default under the Contract or on termination of the Contract by us or automatically if any of the events referred to in Condition 1010 occurs in respect of you.
5.3 If we lawfully terminate your right to possession of the Goods then, in addition to any other remedies we may have, we or any person authorised by us will have the right to enter upon any premises occupied by you where the Goods are or may be stored in order to inspect the Goods or take possession of them and you hereby irrevocably authorise us and/or our authorised representative to enter upon your premises for such purposes.
6.1 Providing the Goods are sold as new, the Supplier warrants that on delivery, and for a period of 12 months from the date of delivery ("warranty period" except to the extent the Customer is an Authorised Distributor in which case the "warranty period" shall have the meaning given in clause 6.7), then the Goods shall:
(a) the Customer gives notice in writing to the Supplier during the warranty period within seven (7) days of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
(b) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;
(c) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(g) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.7 The warranty period in the case of purchases by Authorised Distributors shall be the period commencing on the date of Delivery and which ends on the earlier of (i) the expiry of twelve (12) months from the date of delivery to the customer who is the end user of the Goods for their intended purpose upon resale of the Goods to that customer by the Authorised Distributor or any subsequent intermediary or (ii) the expiry of eighteen (18) months commencing on the date of Delivery.
6.8 Unless we have expressly agreed otherwise with you in writing, we do not warrant that the Goods comply with the legal requirements as to quality or technical standards and/or performance of any jurisdiction other than those type O1 and type O2 trailers which comply with the relevant European Whole Vehicle Type Approval regulations as applied in the United Kingdom to the extent that those legal requirements would otherwise impose obligations on us under the Contract which are different, more strict or more onerous than those imposed on us by reference to the legal requirements of the United Kingdom and/or the Republic of Ireland as at the date of Delivery. Accordingly, we will not be liable for any loss or damage caused to you or any other person due to the Goods not complying to that extent with such legal requirements.
In relation to second-hand or used Goods which we sell to you such Goods are sold "as seen". The Supplier makes no representations and gives no warranties as to the quality, condition, state or description of the Goods, or their fitness or suitability for any purpose. All implied statutory or common law terms, conditions and warranties as to the Goods are excluded to the fullest extent permitted by law. Upon request we will permit you to inspect the Goods for the purpose of assessing whether they are of satisfactory quality or not, you will be deemed to have carried out a reasonable examination of them before the Contract is made, whether or not you have actually taken the opportunity to do so.
(c) fraud or fraudulent misrepresentation; or
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979; and
(e) breach of section 2 of the Consumer Protection Act 1987;
(a) our total liability in contract, tort (including without limitation negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with our performance of or our failure to perform the Contract will be limited to the Price; and
(b) we shall not under any circumstances whatever be liable, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss of profit; or loss of goodwill; or loss of business; or loss of business opportunity; or loss of anticipated saving; or loss or corruption of data or information; or special, indirect or consequential damage
9 FORCE MAJEURE
If we are prevented, hindered or delayed in performing any of our obligations under the Contract by reason of any unforeseen event or circumstance beyond our reasonable control (including for example and without limitation non-availability of materials or necessary inputs from our suppliers), such failure will not be a breach of our obligations and we will be entitled to suspend performance of those obligations for such period of time during which we are prevented, hindered or delayed in doing so. When we are no longer prevented, hindered or delayed then we will resume performance of our obligations so far as reasonably practicable at that time and as soon as reasonably possible.
Without prejudice to any other rights or remedies which we may have, if you:
(a) materially breach any of the provisions of the Contract and, where the breach is remediable, fail to remedy it within 5 working days of receipt of a notice from us requiring its remediation;
(b) fail to pay the Price or any other sums due to us by the due date for payment and fail to remedy such non-payment within 10 working days of receipt of a notice from us requiring such payment;
(c) are a sole trader, partnership or company and you (or any partner if a partnership) become unable to pay your debts (within the meaning of Section 123 of the Insolvency Act 1986 or Section 268 of the Insolvency Act 1986 as the case may be) or are liquidated, wound up or have a petition for winding up presented against you or pass a resolution for winding up or a petition for the appointment of an administrator be presented against you or have any receiver or administrative receiver appointed in respect of all or any of your undertaking or assets or are subject to an interim order or commit any act of bankruptcy or make any arrangement or otherwise compound with your creditors;
(d) suffer or allow any execution, whether legal or equitable, to be levied on its property or obtained against it; or
(e) have entered into any other contract or agreement with us and a right of termination in relation to that contract or agreement has arisen including without limitation where you are an Authorised Distributor and have entered into a distribution agreement with us,
we will have the right immediately to terminate the Contract on giving you notice of such termination in writing.
11.1 Subject to Condition 1.3, the Contract constitutes the entire agreement between you and us and cancels and supersedes any and all previous agreements (whether oral or written, express or implied) between you and us relating to the subject matter of the Contract. Except for the express written terms of the Contract, you and we acknowledge and agree that in entering into the Contract neither you nor we have relied on or been induced by any warranty, statement or representation of the other or any other person relating to the Contract. Nothing in the Contract will affect any liability of you or us for fraudulent misrepresentation.
11.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it will to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision will continue in full force and effect.
11.3 Failure or delay by us in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of our rights under the Contract.
11.4 No term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to the Contract.
11.5 If you sell or dispose of the Goods you can assign the terms of the Warranty provided that the sale is on an arm's length basis and is a bona fide transaction. Except as provided in this Condition 11.5 you are not entitled to assign all or any part of this Contract.
The Contract will be governed by and construed in accordance with the laws of England and you and we submit to the non-exclusive jurisdiction of the English courts.
Ifor Williams Trailers Ltd, registered in England Wales (No. 1206036) at One, St Peter's Square, Manchester, United Kingdom, M2 3DE, VAT GB162990737.
Rev 3 – 15th February 2016