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Terms and Conditions
Terms and Conditions
In these Conditions, the following definitions apply: Broker: Swiss Vans Limited (registered in England and Wales with company number 07170662).
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.6.
Contract: the contract between the Broker and the Customer for the sale and purchase of the Vehicle in accordance with these Conditions.
Customer: the person or firm who purchases the Vehicle from the Broker.
Financing: a credit agreement between the Customer and Swiss Vans Limited for the financing of the Vehicle purchase price. Force Majeure Event: has the meaning given in clause 11.
Manufacturer: the manufacturer of the Vehicle. Order: the Customer’s order for the Vehicle, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Broker’s quotation, as the case may be.
Specification: any specification for the Vehicle, including any variations to the standard specification of the Vehicle and any extras, requested by the Customer and agreed in writing by the Customer and the Broker.
Vehicle: the commercial vehicle set out in the Customer’s Order and supplied by the Broker.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2 (d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 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.
2.2 The Order constitutes an offer by the Customer to purchase the Vehicle in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Broker issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Broker which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Broker and any descriptions or illustrations contained in the Broker’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Vehicles described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Vehicle given by the Broker shall not constitute an offer. A quotation shall only be valid for a period of 10 Business Days from its date of issue.
3.1 The Vehicle descriptions in the Broker’s catalogue or brochure, or on its website, are illustrative only, as are any prices therein. The Customer should check the Manufacturer’s specifications when placing an Order. The Vehicle shall be as described by the Manufacturer, as modified by any applicable Specification.
3.2 The Customer shall indemnify the Broker against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Broker in connection with any claim 3 made against the Broker arising out of or in connection with the Broker’s use of the Specification.
This clause 3.2 shall survive termination of the Contract.
3.3 The Broker reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.4 The Vehicle will be taxed for the period of [one year] on delivery.
3.5 Insurance of the Vehicle is the sole responsibility of the Customer.
4.1 The Broker shall ensure that, on delivery of the Vehicle, it provides a delivery note which shows the date of the Order, all relevant Customer and Broker reference numbers, the type and Specification of the Vehicle, registration documents (if available), and all instruction guides and manuals.
4.2 The Broker shall deliver the Vehicle to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Broker notifies the Customer that the Vehicle is ready.
4.3 Delivery of the Vehicle shall be completed on the Vehicle’s arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Broker shall not be liable for the Manufacturer’s lead times and any delay in delivery of the Vehicle.
4.5 If the Broker fails to deliver the Vehicle, its liability shall be limited to the amount paid by the Customer as at the date on which the Broker notifies the Customer that it is incapable of fulfilling the Contract. The Broker shall have no liability for any failure to deliver the Vehicle to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Broker with adequate delivery instructions or any other instructions that are relevant to the supply of the Vehicle.
4.6 If the Customer fails to accept delivery of the Vehicle when delivery is attempted by the Broker, then, except where such failure or delay is caused by a Force Majeure Event or the Broker’s failure to comply with its obligations under the Contract: (a) delivery of the Vehicle shall be deemed to have been completed at 9.00 am on the Business Day after the day on which the Broker attempted delivery of the Vehicle; and 4 (b) the Broker shall store the Vehicle until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 20 Business Days after the day on which the Broker notified the Customer that the Vehicle was ready for delivery the Customer has not accepted delivery of it, the Broker may resell or otherwise dispose of part or all of the Vehicle and, after deducting reasonable storage and selling costs, account to the Customer for any surplus realised by it over the price of the Vehicle or charge the Customer for any shortfall below the price of the Vehicle.
5.1 The Broker makes no warranties or representations as to the quality or fitness for purpose of the Vehicle.
5.2 Any warranty in respect of the Vehicle will be provided by the Manufacturer and details of such warranty shall be provided to the Customer on Delivery. The Broker is not party to this warranty, nor shall it be liable for the failure of any Vehicle to comply with any such Manufacturer’s warranty.
5.3 In the event that the Vehicle does not comply with the terms of the Manufacturer’s warranty, the Customer should contact the Manufacturer and act in accordance with the terms of the warranty.
5.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.5 These Conditions shall apply to any repaired or replacement Vehicle supplied by the Broker.
6. TITLE AND RISK
6.1 The risk in the Vehicle shall pass to the Customer on completion of delivery.
6.2 Title to the Vehicle shall not pass to the Customer until the Broker has received payment in full (in cash or cleared funds) for the Vehicle, or in any case where Financing is in place, on full and final settlement of the finance amount.
6.3 Until title to the Vehicle has passed to the Customer, the Customer shall: (a) hold the Vehicle on a fiduciary basis as the Broker’s bailee; (b) not remove, deface or obscure any identifying mark on or relating to the Vehicle; 5 (c) maintain the Vehicle in satisfactory condition and keep it fully insured against all risks for its full price from the date of delivery; (d) notify the Broker immediately if it becomes subject to any of the events listed in clause 8.2; and (e) give the Broker such information relating to the Vehicle as the Broker may require from time to time, but the Customer may use the Vehicle in the ordinary course of its business.
6.4 If before title to the Vehicle passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Broker reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Vehicle has not been resold, and without limiting any other right or remedy the Broker may have, the Broker may at any time require the Customer to deliver up the Vehicle to it and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Vehicle is stored in order to recover it. 7.
PRICE AND PAYMENT
7.1 The price of the Vehicle shall be the price set out in the Order, subject to any arrangements in relation to Financing.
7.2 A deposit may be payable on entering into the Contract. Full details of the deposit will be contained in the Order. In the event that the Customer applies for Financing but is rejected, the deposit shall be repaid. Cancellation by the Customer for any other reason shall be deemed a breach of contract and the deposit shall be non-refundable.
7.3 The Broker may, by giving notice to the Customer at any time up to 7 Business Days before delivery, increase the price of the Vehicle to reflect any increase in the cost of the Vehicle that is due to: (a) any factor beyond the Broker’s control (including foreign exchange fluctuations, increases in taxes and duties, increases in the interest rates and charges applicable to any Financing and increases in labour, materials and other manufacturing costs); (b) any request by the Customer to change the delivery date, type of Vehicle ordered, or the Specification; or (c) any delay caused by any instructions of the Customer or failure of the Customer to give the Broker adequate or accurate information or instructions.
7.4 The price shall include driven delivery of the Vehicle to a Delivery Location in mainland UK unless otherwise stated by the Broker. In cases where the Broker states otherwise, the Delivery Location is not within mainland UK, or repeated delivery 6 attempts are made, the price shall be exclusive of delivery and the Customer shall pay the Broker’s delivery costs. The Broker does not deliver outside of mainland UK but will arrange delivery of the Vehicle to a UK port of the Customer’s selection.
7.5 The price of the Vehicle is exclusive of amounts in respect of value added tax (VAT). The Customer shall pay to the Broker such additional amounts in respect of VAT as are chargeable on the supply of the Vehicle.
7.6 The Broker may invoice the Customer for the Vehicle on or at any time after the completion of delivery.
7.7 The Customer shall pay the invoice in full and in cleared funds in accordance with the terms agreed between the parties and set out in the Order. Payment shall be made to the bank account nominated in writing by the Broker. Time of payment is of the essence. Where Financing is in place, the Customer shall comply with the terms of the Financing.
7.8 If the Customer fails to make any payment due to the Broker under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.9 The Customer shall pay all amounts due under the Contract in full without any deduction, set off or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Broker in order to justify withholding payment of any such amount in whole or in part. The Broker may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Broker to the Customer.
8. CUSTOMER’S INSOLVENCY OR INCAPACITY
8.1 If the Customer becomes subject to any of the events listed in clause
8.2, or the Broker reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly then, without limiting any other right or remedy available to the Broker, the Broker may cancel or suspend deliveries under the Contract or under any other contract between the Customer and the Broker without incurring any liability to the Customer, and all outstanding sums in respect of the Vehicle, if delivered to the Customer, shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are: 7 (a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; (b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; (c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; (d) (being an individual) the Customer is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 30 days; (f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; (g) (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets; (i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a)to clause 8.2(h) (inclusive); (j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; (k) the Customer’s financial position deteriorates to such an extent that in the Broker’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and (l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation. 8 8.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Broker’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (d) defective products under the Consumer Protection Act 1987.
9.2 Subject to clause 9.1: (a) the Broker shall under no circumstances whatever 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 or damage arising under or in connection with the Contract; and (b) the Broker’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, shall in no circumstances exceed 50% of the price of the Vehicle.
10.1 This clause 10 shall apply to any Contract under which the Customer is deemed by law to be a consumer. A ‘consumer’ is a natural person who is purchasing the Vehicle for his personal, private use only.
10.2 If the Contract is formed at any location other than the Broker’s place of business, including electronically or over the telephone, the Customer shall have the legal right to cancel the Contract under the Consumer Protection (Distance Selling) Regulations 2000.
10.3 The Customer’s right to cancel begins when the Contract is formed, meaning when written acceptance of the Order is sent by the Broker.
10.4 On delivery of the Vehicle, the Customer has 7 working days in which to cancel the Contract, starting on the day after the day of delivery. The Customer must give written notice of the cancellation to the Broker. 9
10.5 The Broker will arrange collection of the Vehicle and, on satisfactory receipt of the Vehicle, will issue a full refund of the price paid for the Vehicle.
10.6 This cancellation right does not apply to any Financing. The Customer is responsible for the cancellation of any Financing and the Broker shall not be accountable for refunds in such circumstances.
10.7 This cancellation right does not apply in the case of any Vehicle which has been manufactured to or modified in accordance with the Customer’s Specification, or to which any optional extras have been added.
11. FORCE MAJEURE Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of brokers, subcontractors or suppliers, including but not limited to Manufacturer lead time delays or shortages.
12.1 Assignment and subcontracting. (a) The Broker may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. (b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Broker.
12.2 Notices. (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or email. 10 (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or email, one Business Day after transmission. (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3 Severance. (a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or partprovision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. (b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Broker.
12.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
For more information about our Terms and Conditions call us on on 01656 674620 or 01656 763900 or email [email protected]