Aftercare Response Terms And Conditions
These Conditions will apply to
all contracts between Aftercare and the Customer in relation to the supply by
Aftercare of any and all Goods and Services to the exclusion of all other terms
promoted or put forward by the Customer whether on any invoice, order,
quotation, specification, any other document provided by the Customer or
otherwise.
Each relevant schedule of these
Conditions will form part of Aftercare’s contract with the Customer.
The definitions used in these
Conditions are set out in Schedule
1.
Schedule
1
(Definitions and Interpretation) and Schedule
2
(General Terms) apply to all Goods
and Services provided by Aftercare.
In addition to Schedule 1 and Schedule 2, Schedule 3 applies when the Customer orders Consignment Goods.
Schedule 1
Definitions and Interpretation
Part 1
In these Conditions, the following definitions apply:
Aftercare: Aftercare Response
Limited registered in England and Wales with company number 11464204.
Aftercare
Materials: has the meaning given in paragraph 9.1.8 of Schedule
2.
Business Day: a day other than a Saturday, Sunday or public holiday
in England.
Business Hours: the period from 8:00 am – 5:00 pm on any Business
Day.
Collection Location: Aftercare's premises or such other location as
may be advised by Aftercare.
Commencement Date: has the meaning given in paragraph 2
of Schedule
2
for Goods and paragraph 7.3
of Schedule
2
for Services.
Conditions: these terms and conditions as amended from time to time
in accordance with paragraph 18.10
of Schedule
2.
Contract: the contract between Aftercare and the Customer for the
supply of Goods and/or Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation
Tax Act 2010, and the expression change of control will be construed
accordingly.
Controller, processor, data subject, personal data, personal data
breach, processing and appropriate technical measures: as defined in the
Data Protection Legislation.
Customer: the person or firm who purchases the Goods and/or
Services from Aftercare.
Data Protection Legislation: the UK Data Protection Legislation and
any other European Union legislation relating to personal data and all other
legislation and regulatory requirements in force from time to time which apply
to a party relating to the use of personal data (including, without limitation,
the privacy of electronic communications); and the guidance and codes of
practice issued by the relevant data protection or supervisory authority and
applicable to a party.
Deliverables: the deliverables set out in the Order, produced by
Aftercare for the Customer.
Delivery Location: the location set out in the Order or such other
location as the parties may agree.
Fix: the vehicle is restored to a useable condition.
Force Majeure Event: has the meaning given to it in paragraph 18
of Schedule
2.
Goods: the goods (or any part of them) set out in the Order or the Consignment
Goods (or any part of them) (as the case may be).
Goods Specification: any specification for the Goods, including any
relevant plans or drawings, that is agreed in writing by the Customer and
Aftercare.
Intellectual Property Rights: patents, rights to inventions,
copyright and related rights, trade marks, business names and domain names, rights
in get-up, goodwill and the right to sue for passing off, rights in designs,
database rights, rights to use, and protect the confidentiality of,
confidential information (including know-how), and all other intellectual
property rights, in each case whether registered or unregistered and including
all applications and rights to apply for and be granted, renewals or extensions
of, and rights to claim priority from, such rights and all similar or
equivalent rights or forms of protection which subsist or will subsist now or
in the future in any part of the world.
Mobile Maintenance Engineer: Aftercare’s employee engaged to
provide Services.
Order: the Customer's order for the supply of Goods and/or Services,
as set out in the Customer’s purchase order form (for Goods) or by telephone in
accordance with paragraph 7.1
(for Services).
Services: the services, including the Deliverables, supplied by
Aftercare to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the
Services provided in writing by Aftercare to the Customer.
Temporary Fix: the vehicle is restored to a useable condition but
the repair(s) should not be considered permanent and the Customer must ensure
that the temporary repair is made permanent within timescales specified by Aftercare.
UK Data Protection Legislation: all applicable data protection and
privacy legislation in force from time to time in the UK including the General
Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the
Privacy and Electronic Communications Directive (2002/58/EC) (as updated by
Directive 2009/136/EC) and the Privacy and Electronic Communications
Regulations 2003 (SI 2003/2426) as amended.
VAT: value added tax or any equivalent tax chargeable in the UK or
elsewhere.
Part 2
In these Conditions, the following rules apply:
1.
A reference to:
a. a
person includes a natural person,
corporate or unincorporated body (whether or not having separate legal
personality);
b. a
party includes its successors and permitted assigns;
c. a
statute or statutory provision is a reference to it as amended or re-enacted
and includes all subordinate legislation made under that statute or statutory
provision;
d. writing or written includes email but not fax.
Any words following the terms for example, including or include or
any similar expression will be construed as illustrative and will not limit the
sense of the words, description, definition, phrase or term preceding those
terms.
Schedule 2
General Terms
1.
Basis of Contract
1.1
The Order constitutes an offer by the Customer to
purchase Goods and/or Services in accordance with these Conditions.
1.2
Any samples, drawings, descriptive matter or
advertising issued by Aftercare and any descriptions of the Goods or
illustrations or descriptions of the Services contained in Aftercare's
catalogues are issued or published for the sole purpose of giving an
approximate idea of the Services and/or Goods described in them. They will not
form part of the Contract or have any contractual force.
1.3
These Conditions apply to the Contract to the exclusion
of any other terms that the Customer seeks to impose or incorporate, or which
are implied by trade, custom, practice or course of dealing.
1.4
Any quotation given by Aftercare will not constitute an
offer, and is only valid for a period of 7 Business Days from its date of issue,
unless agreed otherwise.
1.5
All of these Conditions will apply to the supply of
both Goods and Services except where application to one or the other is
specified.
Any Order for Goods will only be deemed to
be accepted when Aftercare issues written acceptance of the Order at which
point and on which date the Contract will come into existence (“Commencement Date”).
3.
Goods
3.1
The Goods are described in the Goods Specification.
3.2
Aftercare reserves the right to amend the Goods Specification
if required by any applicable statutory or regulatory requirement, and
Aftercare will notify the Customer in any such event.
4.
Delivery
and Collection of Goods
4.1
If Aftercare delivers the Goods directly to the
Customer:
4.1.1
Aftercare will ensure that each delivery of the Goods
is accompanied by a delivery note that shows the date of the Order, all
relevant Customer and Aftercare reference numbers, the type and quantity of the
Goods (including the code number of the Goods, where applicable) and if the Goods
are being delivered by instalments;
4.1.2
Aftercare will deliver the Goods to the Delivery
Location;
4.1.3
Aftercare (or any courier nominated by it) may deliver
the Goods at any time during Business Hours unless agreed otherwise;
4.1.4
the risk in the Goods will pass to the Customer on
completion of delivery; and
4.1.5
delivery is completed on the completion of unloading of
the Goods at the Delivery Location.
4.2
If the Customer offloads the Goods from the delivery
vehicle itself, the Customer will be liable for any loss and/or damage to the
Goods arising during that offloading process.
4.3
If the Customer collects the Goods from Aftercare:
4.3.1
Aftercare will make available to the Customer a
delivery note that shows the date of the Order, all relevant Customer and
Aftercare reference numbers, the type and quantity of the Goods (including the
code number of the Goods, where applicable) and if the Goods are being
delivered by instalments, the outstanding balance of Goods remaining to be
delivered;
4.3.2
the Customer will collect the Goods from the Collection
Location within 5 Business Days of Aftercare notifying the Customer that the
Goods are ready during Business Hours;
4.3.3
the risk in the Goods will pass to the Customer on
collection; and
4.3.4
collection is completed on the completion of loading of
the Goods at the Collection Location.
4.4
Any dates quoted for delivery or collection (as the
case may be) are approximate only, and the time of delivery or collection is
not of the essence. Aftercare will not be liable for any delay in delivery or collection
of the Goods that is caused by a Force Majeure Event or the Customer's failure
to provide Aftercare with adequate delivery instructions or any other
instructions that are relevant to the supply of the Goods.
4.5
If Aftercare fails to deliver the Goods or make the
Goods available for collection, its liability will be limited to the costs and
expenses incurred by the Customer in obtaining replacement goods of similar
description and quality in the cheapest market available, less the price of the
Goods. Aftercare will have no liability for any failure to deliver the Goods or
make the Goods available for collection to the extent that such failure is
caused by a Force Majeure Event or the Customer's failure to provide Aftercare
with adequate delivery instructions or any other instructions that are relevant
to the supply of the Goods.
4.6
If the Customer fails to take or accept (as the case
may be) delivery of the Goods within 5 Business Days of Aftercare
notifying the Customer that the Goods are ready, then, except where such
failure or delay is caused by a Force Majeure Event or Aftercare's failure to
comply with its obligations under the Contract:
4.6.1
delivery/collection of the Goods will be deemed to have
been completed at 9.00 am on the third Business Day after the day on which
Aftercare notified the Customer that the Goods were ready; and
4.6.2
Aftercare will store the Goods until
delivery/collection takes place, and charge the Customer for all related costs
and expenses (including insurance).
4.7
If 10 Business Days after the day on which Aftercare
notified the Customer that the Goods were ready for delivery or collection, the
Customer has not taken or accepted (as the case may be) delivery of them,
Aftercare may dispose of part or all of the Goods and, after deducting reasonable
storage and selling costs, account to the Customer for any excess over the
price of the Goods or charge the Customer for any shortfall below the price of
the Goods.
4.8
If Aftercare delivers or makes available for collection
up to and including 5% more or less than the quantity of Goods ordered the
Customer may not reject them, but on receipt of notice from the Customer that
the wrong quantity of Goods was delivered, a pro rata adjustment will be made
to the Order invoice.
4.9
Aftercare may deliver the Goods or make the Goods
available for collection by instalments, which will be invoiced and paid for
separately. Any delay in delivery or defect in an instalment will not entitle
the Customer to cancel any other instalment.
5.
Quality of Goods
5.1
The
Customer acknowledges that Aftercare does not normally manufacture the Goods.
5.2
If the manufacturer of the Goods has given a warranty
or guarantee to Aftercare in respect of the Goods, the Company will use all
reasonable endeavours to transfer to the Customer the benefit of any such
warranty or guarantee.
5.3
If Aftercare does manufacture the Goods, Aftercare
warrants that on delivery or collection (as the case may be) the Goods will
conform in all material respects with their description and any applicable
Goods Specification and be free from material defects in design, material and
workmanship.
5.4
All warranties, conditions and other terms implied by
statute or common law (save for the conditions implied by section 12 of the
Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded
from the Contract.
5.5
If
Aftercare gives any warranties in relation to the Goods which are not set out
in these Conditions, such warranties must be given in writing. Aftercare will,
at its option, repair or replace any defective Goods which do not comply with
such warranties or the warranty given in paragraph 5.3, or refund the price of the defective Goods in full if:
5.5.1
the Customer
gives notice in writing to Aftercare within a reasonable time of discovery that
some or all of the Goods do not comply with any warranty given by Aftercare (save
that in respect of defects apparent on visual inspection, those must be
notified to Aftercare within 24 hours of delivery or collection (as the case
may be));
5.5.2
Aftercare is given a reasonable opportunity of
examining such Goods; and
5.5.3
the Customer (if asked to do so by Aftercare) returns
such Goods to Aftercare's place of business at the Customer's cost.
5.6
Aftercare will not be liable for the Goods' failure to
comply with any warranty given pursuant to paragraph 5.5
or the warranty given in paragraph 5.3
if:
5.6.1
the Customer makes any further use of such Goods after
giving a notice in accordance with paragraph 5.5;
5.6.2
the defect arises because the Customer failed to follow
Aftercare's oral or written instructions as to the storage, installation,
commissioning, use or maintenance of the Goods or (if there are none) good
trade practice;
5.6.3
the defect arises as a result of Aftercare following
any drawing, design or Goods Specification supplied by the Customer;
5.6.4
the Customer alters or repairs such Goods without the
written consent of Aftercare;
5.6.5
the defect arises as a result of fair wear and tear,
wilful damage, negligence, or abnormal working conditions; or
5.6.6
the Goods differ from the Goods Specification as a
result of changes made to ensure they comply with applicable statutory or
regulatory standards.
5.7
Except as provided in this paragraph 5,
Aftercare will have no liability to the Customer in respect of the Goods'
failure to comply with any warranty given pursuant to paragraph 5.5
or the warranty given in paragraph 5.3.
5.8
The terms of these Conditions will apply to any
repaired or replacement Goods supplied by Aftercare.
6.1
Title to the Goods will not pass to the Customer until
the earlier of:
6.1.1
Aftercare receiving payment in full (in cash or cleared
funds) for the Goods and any other goods that Aftercare has supplied to the
Customer in respect of which payment has become due, in which case title to the
Goods will pass at the time of payment of all such sums; and
6.1.2
the Customer reselling the Goods, in which case title
to the Goods will pass to the Customer at the time specified in paragraph 6.3.
6.2
Until title to the Goods has passed to the Customer,
the Customer will:
6.2.1
store the Goods separately from all other goods held by
the Customer so that they remain readily identifiable as Aftercare's property;
6.2.2
not remove, deface or obscure any identifying mark or
packaging on or relating to the Goods;
6.2.3
maintain the Goods in satisfactory condition and keep
them insured against all risks for their full price on Aftercare's behalf from
the date of delivery;
6.2.4
notify Aftercare immediately if it becomes subject to
any of the events listed in paragraph 16.2.1 to paragraph 16.2.3; and
6.2.5
give Aftercare such information relating to the Goods
as Aftercare may require from time to time.
6.3
Subject to paragraph 6.4,
the Customer may resell or use the Goods in the ordinary course of its business
(but not otherwise) before Aftercare receives payment for the Goods. However,
if the Customer resells the Goods before that time:
6.3.1
it does so as principal and not as Aftercare’s agent;
and
6.3.2
title to the Goods will pass from Aftercare to the
Customer immediately before the time at which resale by the Customer occurs.
6.4
If before title to the Goods passes to the Customer the
Customer becomes subject to any of the events listed in paragraph 16.2.1
to paragraph 16.2.3,
then, without limiting any other right or remedy Aftercare may have:
6.4.1
the Customer's right to resell Goods or use them in the
ordinary course of its business ceases immediately; and
6.4.2
Aftercare may at any time:
(a)
require the Customer to deliver up all Goods in its
possession which have not been resold, or irrevocably incorporated into another
product; and
(b)
if the Customer fails to do so promptly, enter any
premises of the Customer or of any third party where the Goods are stored in
order to recover them.
7.1
If the Customer wishes to place an Order for Services,
the Customer will do so by contacting Aftercare by telephone and providing
Aftercare with the following:
7.1.1
a start-up number;
7.1.2
the relevant vehicle’s make, model and registration number;
7.1.3
the Customer’s reference number;
7.1.4
the exact location of the relevant vehicle and the full
name of the driver (if applicable);
7.1.5
the suspected nature of the fault with the relevant vehicle.
7.2
The Customer acknowledges and accepts that at the time
of the telephone conversation described in paragraph 7.1, Aftercare cannot definitively or accurately provide the
Customer with a price for the Services because at that stage it is not known specifically
what services are required. The Customer accepts that if it instructs Aftercare
to attend to provide Services, it will pay Aftercare’s charges for such
Services on a time and materials basis in accordance with Aftercare’s daily fee
rates in force from time to time. The Customer acknowledges that it will be
responsible for payment of all costs incurred by Aftercare in providing the
Services including (without limitation) labour, parts and/or materials.
7.3
The Customer’s Order for Services will only be deemed
to be accepted when Aftercare carries out an act consistent with fulfilling the
Order at which point and on which date the Contract will come into existence (“Commencement Date”).
7.4
On immediate payment of a call-out fee by credit or
debit card, the amount of such fee will be notified to the Customer at the time
of the telephone call described in paragraph 7.1 (for non credit account customers only), Aftercare will
instruct a Mobile Maintenance Engineer to attend the location of the vehicle.
If the Customer is a credit account customer, a call-out fee will only apply if
the Customer instructs Aftercare to carry out Services outside of Business
Hours, the amount of the call-out fee will be notified to the Customer at the
time of the telephone call described in paragraph 7.1 and applied to the Customer’s account.
7.5
The payment of the call-out fee described in this
paragraph 7 will cover the cost of the Mobile Maintenance Engineer
attending to assess and inspect the vehicle only. Aftercare does not guarantee
that the Mobile Maintenance Engineer will be able to achieve an immediate Fix
or Temporary Fix. If the Mobile Maintenance Engineer is unable to achieve an
immediate Fix or a Temporary Fix, the call-out fee is not refundable.
8.
Supply of Services
8.1
Aftercare will supply the Services to the Customer in
accordance with the Service Specification in all material respects.
8.2
Aftercare will use all reasonable endeavours to meet
any performance dates for the Services specified in the Service Specification,
but any such dates will be estimates only and time will not be of the essence
for the performance of the Services.
8.3
Aftercare reserves the right to amend the Service
Specification if necessary to comply with any applicable law or regulatory
requirement, or if the amendment will not materially affect the nature or
quality of the Services, and Aftercare will notify the Customer in any such
event.
8.4
Aftercare warrants to the Customer that the Services
will be provided using reasonable care and skill.
8.5
The Customer acknowledges and accepts that neither
Aftercare or any of its employees, agents, consultants or subcontractors will
carry out any Services unless they consider it is safe to do so. For example,
Services will not be performed where there is an unsafe working environment,
for example, involving (without limitation) unsafe loads, areas with heavy
and/or unsafe traffic volumes or unstable, muddy or waterlogged ground.
8.6
In relation to any items on which Aftercare performs
Services, the Customer warrants that such items have been kept under suitable conditions
in accordance with relevant operating manuals and have been utilised by trained
and competent personnel following manufacturer operating instructions.
8.7
Aftercare may instruct a third party agent or
contractor to provide the Services on its behalf at its discretion. With the
Customer’s agreement on a scope of work, Aftercare will instruct the third
party agent or contractor and the Customer will be responsible for the costs of
that instruction and any associated labour and parts or materials agreed to be
purchased plus Aftercare’s mark-up on the instruction (notwithstanding any
subsequent cancellation by the Customer), such fees will be agreed by telephone
between Aftercare and the Customer and confirmed in writing.
8.8
If:
8.8.1
the Customer cancels the Mobile Maintenance Engineer’s attendance;
8.8.2
the driver is not with the vehicle when the Mobile
Maintenance Engineer arrives at the location given pursuant to paragraph 7.1;
8.8.3
the vehicle is not in an accessible location;
8.8.4
the vehicle is in a location where it would be unsafe
for the Mobile Maintenance Engineer to carry out the Services; or
8.8.5
no fault is found with the vehicle on inspection by the
Mobile Maintenance Engineer,
the Customer will pay an abortive fee plus all expenses
incurred by Aftercare including (without limitation) parts and/or materials
purchased and travel costs. Any call-out fee paid by the Customer will not be
refunded.
8.9
When the Mobile Maintenance Engineer has carried out
the initial assessment and inspection of the vehicle, the Mobile Maintenance
Engineer will, if possible, Fix the vehicle or achieve a Temporary Fix without
first seeking the Customer’s approval, unless:
8.9.1
the Customer requests otherwise during the telephone
call described at paragraph 7.1; or
8.9.2
the Customer’s separate pricing or service legal
agreement stipulates otherwise.
8.10
Aftercare will report to the Customer if the Mobile Maintenance
Engineer is unable to restore the vehicle to a useable condition.
8.11
If the Customer’s approval is required in accordance
with paragraph 8.9.1,
Aftercare and the Customer will verbally agree the scope of work and associated
costs (for example, the costs of parts, materials and/or labour) and confirm
the same in writing.
8.12
If the Mobile Maintenance Engineer carries out a
Temporary Fix, it is the Customer’s responsibility to have the repair made
permanent immediately.
8.13
If the Customer instructs Aftercare to carry out
Services outside of Business Hours, the Customer acknowledges and accepts that
Aftercare will charge an uplift on top of its usual fees.
9.1.1
ensure that the terms of the Order and any information
it provides in the Service Specification and the Goods Specification are
complete and accurate;
9.1.2
co-operate with Aftercare in all matters relating to
the Services;
9.1.3
provide Aftercare, its employees, agents, consultants
and subcontractors, with access to the Customer's premises, office
accommodation and other facilities as reasonably required by Aftercare to
provide the Services;
9.1.4
provide Aftercare with such information and materials
as Aftercare may reasonably require in order to supply the Services, and ensure
that such information is complete and accurate in all material respects;
9.1.5
prepare the Customer's premises for the supply of the
Services;
9.1.6
obtain and maintain all necessary licences, permissions
and consents which may be required for the Services before the date on which
the Services are to start;
9.1.7
comply with all applicable laws, including health and
safety laws;
9.1.8
keep all materials, equipment, documents and other
property of Aftercare (“Aftercare
Materials”) at the Customer's premises in safe custody at its own risk,
maintain Aftercare Materials in good condition until returned to Aftercare, and
not dispose of or use Aftercare Materials other than in accordance with
Aftercare's written instructions or authorisation;
9.1.9
comply with any additional obligations as set out in
the Service Specification and the Goods Specification.
9.2
If Aftercare's performance of any of its obligations
under the Contract is prevented or delayed by any act or omission by the
Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
9.2.1
without limiting or affecting any other right or remedy
available to it, Aftercare will have the right to suspend performance of the
Services until the Customer remedies the Customer Default, and to rely on the
Customer Default to relieve it from the performance of any of its obligations
in each case to the extent the Customer Default prevents or delays Aftercare's
performance of any of its obligations;
9.2.2
Aftercare will not be liable for any costs or losses
sustained or incurred by the Customer arising directly or indirectly from
Aftercare's failure or delay to perform any of its obligations as set out in
this paragraph 9.2;
and
9.2.3
the Customer will reimburse Aftercare on written demand
for any costs or losses sustained or incurred by Aftercare arising directly or
indirectly from the Customer Default.
10.1.1
will be the price set out Aftercare's written
acceptance of the Order given pursuant to paragraph 2
which, if applicable, will reflect the Customer’s separate pricing agreement
with Aftercare; and
10.1.2
will be exclusive of all costs and charges of
packaging, insurance, transport of the Goods, which will be invoiced to the
Customer.
10.2 Aftercare
reserves the right to
increase the price of the Goods, by giving notice to the Customer at any time
before delivery, to reflect any increase in the cost of the Goods to Aftercare
that is due to:
(a)
any factor beyond the control of Aftercare (including
foreign exchange fluctuations, increases in taxes and duties, and increases in
labour, materials and other manufacturing costs);
(b)
any request by the Customer to change the delivery
date(s), quantities or types of Goods ordered, or the Goods Specification; or
(c)
any delay caused by any instructions of the Customer in
respect of the Goods or failure of the Customer to give Aftercare adequate or
accurate information or instructions in respect of the Goods.
10.3
In respect of Goods, Aftercare will invoice the
Customer on or at any time after completion of delivery or collection (as the
case may be).
10.4
The charges for Services will be the price notified by Aftercare
to the Customer after the Services have been carried out which, if applicable,
will reflect the Customer’s separate pricing agreement with Aftercare.
10.5
In respect of Services, Aftercare will invoice the
Customer on completion of the Services. The Customer will supply a purchase
order number within 5 Business Days of receipt of a request from Aftercare to
do so. If the Customer fails to supply a purchase order number, Aftercare will
raise its invoice in any event and the Customer will pay the same pursuant to
paragraph 10.6.
10.6
The
Customer will pay each invoice submitted by Aftercare:
10.6.1
within 30 days of the date of the invoice or in
accordance with any credit terms agreed by Aftercare and confirmed in writing
to the Customer; and
10.6.2
in full and in cleared funds to a bank account
nominated in writing by Aftercare, and
time for payment will be of the essence of the Contract.
10.7
Should the Customer dispute any invoice raised by
Aftercare, it will notify Aftercare immediately and in any event within 5
Business Days and the parties will enter into good faith negotiations to
resolve the dispute promptly.
10.8
All amounts payable by the Customer under the Contract
are exclusive of amounts in respect of VAT. Where any taxable supply for VAT
purposes is made under the Contract by Aftercare to the Customer, the Customer
will, on receipt of a valid VAT invoice from Aftercare, pay to Aftercare such
additional amounts in respect of VAT as are chargeable on the supply of the
Services or Goods at the same time as payment is due for the supply of the
Services or Goods.
10.9
Aftercare reserves the right to reduce or withdraw
credit facilities without notice.
10.10
If the Customer fails to make a payment due to
Aftercare under the Contract by the due date, then, without limiting
Aftercare's remedies under paragraph 15,
the Customer will pay interest on the overdue sum from the due date until
payment of the overdue sum, whether before or after judgment. Interest under
this paragraph 10.10
will accrue each day at 4% a year above the Bank of England's base rate from
time to time, but at 4% a year for any period when that base rate is below 0%.
10.11
All amounts due under the Contract will be paid in full
without any set-off, counterclaim, deduction or withholding (other than any
deduction or withholding of tax as required by law).
11.
Intellectual
Property Rights
11.1
All Intellectual Property Rights in or arising out of
or in connection with the Services (other than Intellectual Property Rights in
any materials provided by the Customer) will be owned by Aftercare.
11.2
Aftercare grants to the Customer, or will procure the
direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive,
royalty-free perpetual and irrevocable licence to copy the Deliverables
(excluding materials provided by the Customer) for the purpose of receiving and
using the Services and the Deliverables in its business.
11.3
The Customer will not sub-license, assign or otherwise
transfer the rights granted by paragraph 11.2.
11.4
The Customer grants Aftercare a fully paid-up,
non-exclusive, royalty-free non-transferable licence to copy and modify any
materials provided by the Customer to Aftercare for the term of the Contract
for the purpose of providing the Services to the Customer.
12.1
Both parties will comply with all applicable
requirements of the Data Protection Legislation. This paragraph 12
is in addition to, and does not relieve, remove or replace, a party's
obligations or rights under the Data Protection Legislation. In this paragraph 12,
“Applicable Laws” means (for so long
as and to the extent that they apply to Aftercare) the law of the European
Union, the law of any member state of the European Union and/or Domestic UK
Law; and “Domestic UK Law” means the UK Data Protection
Legislation and any other law that applies in the UK.
12.2
The parties acknowledge that for the purposes of the
Data Protection Legislation, the Customer is the controller and Aftercare is
the processor.
12.3 This
paragraph 12.3 sets out the duration of the processing and the types of
personal data and categories of data subject:
12.3.1
Scope and purpose of processing: The scope and purpose
of processing of personal data by Aftercare is limited to the processing
required for its fulfilment of its obligations under the Contract.
12.3.2
Nature of processing: Aftercare will receive the
personal data described in paragraph 12.3.5
and 12.3.4
and access, use and store it in order to fulfil the purposes described in
paragraph 12.3.1.
12.3.3
Duration of processing: The processing of personal data
will be limited to the duration of the Contract.
12.3.4
Categories of data subject: the Customer’s employees,
agents, consultants and subcontractors.
12.3.5
Types of personal data: names and contact details.
12.4
Without prejudice to the generality of paragraph 12.1,
the Customer will ensure that it has all necessary appropriate consents and
notices in place to enable lawful transfer of the personal data to Aftercare
for the duration and purposes of the Contract.
12.5
Without prejudice to the generality of paragraph 12.1,
Aftercare will, in relation to any personal data processed in connection with
the performance by Aftercare of its obligations under the Contract:
12.5.1
process that personal data only on the documented
written instructions of the Customer unless Aftercare is required by Applicable
Laws to otherwise process that personal data. Where Aftercare is relying on
Applicable Laws as the basis for processing personal data, Aftercare will
promptly notify the Customer of this before performing the processing required
by the Applicable Laws unless those Applicable Laws prohibit Aftercare from so
notifying the Customer;
12.5.2
ensure that it has in place appropriate technical and
organisational measures, reviewed and approved by the Customer, to protect
against unauthorised or unlawful processing of personal data and against
accidental loss or destruction of, or damage to, personal data, appropriate to
the harm that might result from the unauthorised or unlawful processing or
accidental loss, destruction or damage and the nature of the data to be
protected, having regard to the state of technological development and the cost
of implementing any measures (those measures may include, where appropriate,
pseudonymising and encrypting personal data, ensuring confidentiality,
integrity, availability and resilience of its systems and services, ensuring
that availability of and access to personal data can be restored in a timely
manner after an incident, and regularly assessing and evaluating the
effectiveness of the technical and organisational measures adopted by it);
12.5.3
ensure that all personnel who have access to and/or
process personal data are obliged to keep the personal data confidential; and
12.5.4
not transfer any personal data outside of the European
Economic Area unless the prior written consent of the Customer has been
obtained and the following conditions are fulfilled:
(a)
the Customer or Aftercare has provided appropriate
safeguards in relation to the transfer;
(b)
the data subject (as defined in the Data Protection
Legislation) has enforceable rights and effective legal remedies;
(c)
Aftercare complies with its obligations under the Data
Protection Legislation by providing an adequate level of protection to any
personal data that is transferred; and
(d)
Aftercare complies with reasonable instructions
notified to it in advance by the Customer with respect to the processing of the
personal data;
12.5.5
assist the Customer, at the Customer's cost, in
responding to any request from a data subject and in ensuring compliance with
its obligations under the Data Protection Legislation with respect to security,
breach notifications, impact assessments and consultations with supervisory
authorities or regulators;
12.5.6
notify the Customer without undue delay on becoming
aware of a personal data breach;
12.5.7
at the written direction of the Customer, delete or
return personal data and copies thereof to the Customer on termination of the
Contract unless required by Applicable Law to store the personal data; and
12.5.8
maintain complete and accurate records and information
to demonstrate its compliance with this paragraph 12
and immediately inform the Customer if, in the opinion of Aftercare, an
instruction infringes the Data Protection Legislation.
13.1
Each party undertakes that it will not disclose to any
person any confidential information concerning the business, affairs,
customers, clients or suppliers of the other party, except as permitted by
paragraph 13.2.
13.2
Each party may disclose the other party's confidential
information:
13.2.1
to its employees, officers, representatives,
subcontractors or advisers who need to know such information for the purposes
of carrying out the party's obligations under the Contract. Each party will
ensure that its employees, officers, representatives, subcontractors or
advisers to whom it discloses the other party's confidential information comply
with this paragraph 13;
and
13.2.2
as may be required by law, a court of competent
jurisdiction or any governmental or regulatory authority.
13.3
Neither party will use the other party's confidential
information for any purpose other than to perform its obligations under the
Contract.
14.1 Nothing in these Conditions will limit or exclude
Aftercare's liability for:
14.1.1
death or personal injury caused by its negligence, or
the negligence of its employees, agents or subcontractors (as applicable);
14.1.2
fraud or fraudulent misrepresentation;
14.1.3
breach of the terms implied by section 12 of the Sale
of Goods Act 1979; or
14.1.4
any matter in respect of which it would be unlawful for
Aftercare to exclude or restrict liability.
14.2
Subject to paragraph 14.1:
14.2.1
Aftercare will under no circumstances whatsoever be
liable to the Customer, whether in contract, tort (including negligence),
breach of statutory duty, or otherwise, for any loss of profit, or any indirect
or consequential loss arising under or in connection with the Contract; and
14.2.2
Aftercare's total liability to the Customer in respect
of all other losses arising under or in connection with the Contract, whether
in contract, tort (including negligence), breach of statutory duty, or otherwise,
will in no circumstances exceed 75% of the price of the Goods.
14.3
This paragraph 14
will survive termination of the Contract.
14.4
Aftercare will not be liable to the Customer for any
losses suffered by the Customer arising as a result of or in connection with
any period of time during which a vehicle which Aftercare is performing or has
performed Services in relation to is off the road.
15.1
The Customer will not, without the prior written
consent of Aftercare, at any time from the Commencement Date to the expiry of 6
months after the completion of the Services, solicit or entice away from
Aftercare or employ or attempt to employ any person who is, or has been,
engaged as an employee, consultant or subcontractor of Aftercare in the
provision of the Services.
15.2
Any consent given by Aftercare in accordance with
clause 15.1 will be subject to the Customer paying to Aftercare a sum
equivalent to 20% of the then current annual remuneration of Aftercare's
employee, consultant or subcontractor or, if higher, 20% of the annual
remuneration to be paid by the Customer to that employee, consultant or
subcontractor.
16.
Termination
16.1
Without affecting any other right or remedy available
to it, Aftercare terminate the Contract by giving the other party not less than
7 days’ written notice.
16.2
Without affecting any other right or remedy available
to it, either party may terminate the Contract with immediate effect by giving
written notice to the other party if:
the other party commits a material breach of its
obligations under the Contract and (if such breach is remediable) fails to remedy
that breach within 14 days after receipt of notice in writing to do so;
16.2.1
the other party takes any step or action in connection
with its entering administration, provisional liquidation or any composition or
arrangement with its creditors (other than in relation to a solvent
restructuring), being wound up (whether voluntarily or by order of the court,
unless for the purpose of a solvent restructuring), having a receiver appointed
to any of its assets or ceasing to carry on business or, if the step or action
is taken in another jurisdiction, in connection with any analogous procedure in
the relevant jurisdiction;
16.2.2
the other party suspends, or threatens to suspend, or
ceases or threatens to cease to carry on all or a substantial part of its
business; or
16.2.3
the other party's financial position deteriorates to
such an extent that in the terminating party's opinion the other party's
capability to adequately fulfil its obligations under the Contract has been
placed in jeopardy.
16.3
Without affecting any other right or remedy available
to it, Aftercare may terminate the Contract with immediate effect by giving
written notice to the Customer if:
16.3.1
the Customer fails to pay any amount due under the
Contract on the due date for payment; or
16.3.2
there is a change of control of the Customer.
16.4
Without affecting any other right or remedy available
to it, Aftercare may suspend the supply of Services or all further deliveries
of Goods under the Contract or any other contract between the Customer and
Aftercare if the Customer fails to pay any amount due under the Contract on the
due date for payment, the Customer becomes subject to any of the events listed
in paragraph 16.2.1
to paragraph 16.2.3,
or Aftercare reasonably believes that the Customer is about to become subject
to any of them.
17.
Consequences
of Termination
17.1
On termination of the Contract:
17.1.1
the Customer will immediately pay to Aftercare all of
Aftercare's outstanding unpaid invoices and interest and, in respect of
Services and Goods supplied but for which no invoice has been submitted,
Aftercare will submit an invoice, which will be payable by the Customer
immediately on receipt;
17.1.2
the Customer will return all of Aftercare Materials and
any Deliverables or Goods which have not been fully paid for. If the Customer
fails to do so, then Aftercare may enter the Customer's premises and take
possession of them. Until they have been returned, the Customer will be solely
responsible for their safe keeping and will not use them for any purpose not
connected with this Contract.
17.2
Termination of the Contract will not affect any rights,
remedies, obligations and liabilities of the parties that have accrued up to
the date of termination, including the right to claim damages in respect of any
breach of the Contract which existed at or before the date of termination.
17.3
Any provision of the Contract that expressly or by
implication is intended to have effect after termination will continue in full
force and effect.
18.1
Force Majeure. Neither
party will be in breach of the Contract nor liable for delay in performing or
failure to perform, any of its obligations under the Contract if such delay or
failure result from events, circumstances or causes beyond its reasonable
control (“Force Majeure Event”).
18.2
Assignment and
other dealings. Aftercare may at any time
assign, mortgage, charge, subcontract, delegate, declare a trust over or deal
in any other manner with any or all of its rights and obligations under the
Contract. The Customer will not assign, transfer,
mortgage, charge, subcontract, delegate, declare a trust over or deal in any
other manner with any of its rights and obligations under the Contract.
18.3
Conflict. If
there is any conflict between these Conditions and the Customer’s separate service
level or pricing agreement (if applicable), the service level or pricing
agreement will take precedence solely to the extent required to resolve the
conflict.
18.4
Notices. Any notice given to a party under or in
connection with this Agreement will be in writing and will be sent by email to the address to the address notified
to that party for that purpose. Any notice or communication will be deemed to
have been received at the time of transmission, or, if this time falls outside
business hours in the place of receipt, when business hours resume. For the
purposes of this clause 18.4, business hours means
9:00am to 5:00pm Monday to Friday on a day that is not a public holiday in the
place of receipt. This clause 18.4 does not apply to the
service of any proceedings or any documents in any legal action or, where
applicable, any arbitration or other method of dispute resolution.
18.5
Severance.
If any provision or part-provision of the Contract is or becomes invalid,
illegal or unenforceable, it will be deemed modified to the minimum extent
necessary to make it valid, legal and enforceable. If such modification is not
possible, the relevant provision or part-provision will be deemed deleted. Any
modification to or deletion of a provision or part-provision under this
paragraph 18.5
will not affect the validity and enforceability of the rest of the Contract.
18.6
Waiver. A
waiver of any right or remedy under the Contract or by law is only effective if
given in writing and will not be deemed a waiver of any subsequent right or
remedy. A failure or delay by a party to exercise any right or remedy provided
under the Contract or by law will not constitute a waiver of that or any other
right or remedy, nor will it prevent or restrict any further exercise of that
or any other right or remedy. No single or partial exercise of any right or remedy
provided under the Contract or by law will prevent or restrict the further
exercise of that or any other right or remedy.
18.7
No partnership
or agency. Nothing in the Contract is intended to, or will be deemed to,
establish any partnership or joint venture between the parties, constitute
either party the agent of the other, or authorise either party to make or enter
into any commitments for or on behalf of the other party.
18.8
Entire agreement.
The Contract constitutes the entire agreement
between the parties and supersedes and extinguishes all previous agreements,
promises, assurances, warranties, representations and understandings between
them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the
Contract it does not rely on, and will have no remedies in respect of any
statement, representation, assurance or warranty (whether made innocently or
negligently) that is not set out in the Contract. Each party agrees that it
will have no claim for innocent or negligent misrepresentation or negligent
misrepresentation based on any statement in the Contract. Nothing
in this paragraph will limit or exclude any liability for fraud.
18.9
Third party
rights. Unless it expressly states otherwise,
the Contract does not give rise to any rights under the Contracts (Rights of
Third Parties) Act 1999 to enforce any term of the Contract.
18.10 Variation. Except as set out in these
Conditions, no variation of the Contract will be effective unless it is agreed
in writing and signed by the parties (or their authorised representatives).
18.11
Governing law
and jurisdiction. The Contract and any dispute or claim (including
non-contractual disputes or claims) arising out of or in connection with it or
its subject matter or formation will be governed by and construed in accordance
with the law of England and Wales. Each party
irrevocably agrees that the courts of England and Wales will have exclusive
jurisdiction to settle any dispute or claim (including non-contractual disputes
or claims) arising out of or in connection with the Contract or its subject
matter or formation.
Schedule 3
Consignment Goods
This Schedule 3 applies when the Customer orders Consignment Goods.
If this Schedule 3 conflicts with any provision in Schedule 2, this Schedule 3 will apply to the extent required to resolve the conflict.
1.
Definitions
1.1
The following definitions apply in this Schedule 3:
Consignment Confirmation: Aftercare’s written
confirmation setting out the quantity of Consignment Goods to be shipped, the
purchase price and the specific terms for delivery of the Consignment Goods to
the Customer.
Consignment Goods:
the goods to be provided to the Customer in response to a Consignment Request.
Consignment Request: the Customer’s
request for Consignment Goods to be shipped to the Storage Location.
Storage Location: the location
specified in the Consignment Request where the Consignment Goods will be
stored.
2.
Consignment Goods
2.1
If the Customer wishes to order Consignment Goods, it
will raise a Consignment Request. The Consignment Request will only be deemed
to be accepted when Aftercare issues a Consignment Confirmation at which point
and on which date the Contract will come into existence.
2.2
Aftercare will deliver the Consignment Goods to the
Storage Location for the purpose of resale by the Customer to its customers or
for the Customer’s eventual purchase.
2.3
The Customer will:
2.3.1
store the Consignment Goods at the Storage Location at
all times;
2.3.2
maintain the Storage Location in such manner that it
remains suitable to store the Consignment Goods;
2.3.3
store the Consignment Goods at the Storage Location in
such manner as to protect them from damage or deterioration.
2.4
Aftercare may inspect the Storage Location at any time
during Business Hours with reasonable notice to the Customer.
3.
Inspection and Rejection of Consignment Goods
3.1
The Customer will inspect all Consignment Goods
delivered to the Storage Location within 24 hours after their delivery.
3.2
If the Customer notifies Aftercare within 24 hours of
delivery, the Customer may return any Consignment Goods which are defective or
that do not conform to their description.
4.
Title and Risk
4.1
Risk in the Consignment Goods will pass to the Customer
on completion of unloading of the Consignment Goods at the Storage Location.
4.2
Title to the Consignment Goods will not pass to the
Customer until the earlier of:
4.2.1
Aftercare receiving payment in full (in cash or cleared
funds) for the Goods; and
4.2.2
the Customer reselling the Consignment Goods to its
customer (in which case title to those Consignment Goods passes to the Customer
immediately before that sale or the Consignment Goods are used by the Customer
(as applicable).
4.3
The Customer may resell the Consignment Goods in the
ordinary course of its business or purchase the Consignment Goods for use in
its own business, but this right ceases immediately if any of the events listed
in paragraph 16.2.1
to paragraph 16.2.3
(inclusive) of Schedule 2
occurs, or Aftercare reasonably believes that the Customer is about to become
subject to any of them.
4.4
The Customer acknowledges that it holds Consignment
Goods in its possession as bailee for Aftercare until such time as title passes
in accordance with paragraph 4.2.
4.5
Until title passes to the Customer, the Customer will:
4.5.1
store the Consignment Goods in its possession
separately from all other goods held by the Customer so that they remain
readily identifiable as Aftercare's property;
4.5.2
not remove, deface or obscure any identifying mark or
packaging on or relating to the Consignment Goods;
4.5.3
keep the Consignment Goods in satisfactory condition
and in accordance with instructions from Aftercare from time to time.
5.
Sale or Return
5.1
The Consignment Goods will at all times be subject to
the direction and control of Aftercare, and the Customer will immediately
return any Consignment Goods that have not been paid for or sold by the Customer
on demand by Aftercare.
5.2
Aftercare may at its discretion accept the return of Consignment
Goods that the Customer is unable to resell to its customers subject to payment
by the Customer to Aftercare of a restocking fee.
5.3
The Customer will bear the risk of loss and any expense
of returning any Consignment Goods.
6.
Price
6.1
The Customer will purchase the Consignment Goods from Aftercare
at the prices notified to the Customer at the time Aftercare raises its Consignment
Confirmation.
6.2
Aftercare will inspect the Storage Location at regular
intervals at its discretion and carry out a stock check in respect of the
Consignment Goods. To the extent that Aftercare has delivered Consignment Goods
to the Storage Location but such Consignment Goods are not present at the
Storage Location at the date of any stock check, After will invoice the
Customer for all of the missing Consignment Goods.
6.3
The Customer will pay all invoices in full and in
cleared funds within 30 days of the date of each invoice. Payment will be made
to the bank account specified on the relevant invoice.
6.4
The Customer is responsible for all credit risks
arising out of the resale of the Goods by the Customer and the ability of the
Customer to collect the purchase price from the Customer's customer(s) will not
affect the Customer's obligation to pay Aftercare's invoice when due.
7.
Reports and Reviews
7.1
The Customer will keep full, complete and accurate
records of all sales of Consignment Goods to its customers and provide such
records to Aftercare on request.
7.2
The Customer and Aftercare will review the Consignment
Goods in the Customer’s possession at least on an annual basis.
