1 DEFINITIONS AND INTERPRETATION
1.1 In these terms unless the context shall require otherwise:
‘Completion’ means, in the case of the contract for Work, the date of the Trader’s notice to the Customer that Work has been completed;
‘Contract’ means the Order, these Terms and Conditions and/or any estimate for the performance of Work or supply of Goods by the Trader for the Customer;
‘Customer’ means the person, firm, company or organisation by whom or on whose behalf an Order has been signed, or instructions given by any means for Work to be done or Goods supplied;
‘Goods’ means any goods, vehicle parts or other things to be sold by the Trader to the Customer whether or not supplied in conjunction with work to be done by the Trader;
‘Manufacturer’ means the manufacturer of the Vehicle or its relevant component part, as applicable;
‘Order’ means the instructions written or otherwise received by the Trader from the Customer for Work to be done or Goods to be supplied;
'Terms and Conditions' means these Vantage Motor Group Limited Standard Terms and Conditions for After Sales Services;
'Trader'means Vantage Motor Group Limited (company no. 4652938) registered office Knaresborough Toyota, York Road, Knaresborough, North Yorkshire, HG5 0SS;
‘Vehicle’ means the vehicle which the Customer has requested the Trader to perform Work on or provide an estimate for Work on;
‘Work’ means any work to be performed on a Vehicle including, but not limited to, supplying Goods or services performed by the Trader whether by way of after-sale repairs, servicing, fitting or otherwise; and
'Working Days'means Monday to Friday, excluding UK Bank Holidays.
1.2 The Customer and Trader are each a "party" and together the "parties".
1.3 Headings are for convenience only and shall not affect the construction of these Terms and Conditions; the masculine shall include all genders and the singular shall include the plural; any reference to statutory provisions is a reference to such statutory provisions as amended or re-enacted from time to time.
1.4 The statutory rights of the Customer are not affected by these Terms and Conditions.
2 FORMATION OF CONTRACT AND CANCELLATION
2.1 These Terms and Conditions, the terms set out on the Order and/or any estimate for the performance of Work or supply of Goods constitute the only terms of the Contract.
2.2 The Customer's request (or that of their insurer) to the Trader to carry out Work or supply Goods is an offer to enter into a contract upon the terms set out in these Terms and Conditions. Acceptance occurs and the Contract is formed upon either:
2.2.1 the Trader’s accepting the Customer’s duly signed authority to the Trader to proceed with Work and accepting delivery of the Vehicle at its premises: or
2.2.2 the Trader's issuing to the Customer an acknowledgement of the Order signed and dated by an authorised representative of the Trader; or
2.2.3 in the case of Goods only, the Trader’s proceeding to fulfil the Order.
2.3 The Contract is personal to the Customer and the Customer shall not assign the benefit of the Contract without the prior written consent of an authorised representative of the Trader.
2.4 Unless otherwise provided for under this Contract, there is no formal right to cancel once a contract has been validly entered into. Exceptions to this are if the contract is a conditional contract which has not been satisfied or is a distance selling one.
3.1 Any estimate given by the Trader is a considered approximation of the likely costs of Work and/or Goods and are valid for 14 days from the date stated there on.
3.2 Unless otherwise agreed in writing by an authorised representative of the Trader if, during progress of Work, it appears that the estimated costs will be exceeded by a significant amount, the Trader will cease performing Work and notify the Customer of the anticipated costs and will not resume performance of Work until it has received the Customer’s express permission (which need not be in writing).
3.3 Prices of Goods are based on prices at the time the estimate is prepared and the Trader reserves the right to increase the price of such Goods if the price to the Trader is increased between preparing the estimate and receiving the Goods.
4 PRICES AND VARIATION
4.1 Prices of Goods stated in an Order or in any estimate are based on prices current at the date of the Order or estimate (as the case may be).
4.2 The Customer shall pay any amount of VAT, or other tax or duty that the Trader has legally become bound to pay in relation to the Work under this Contract.
4.3 Subject to clause 3.2 above, the Trader may vary the price of Work or Goods by any amount attributable to a change in the Customer’s instructions or any variation in cost to the Trader of goods, materials or labour required for the performance of the Contract and any other costs whatsoever between the date the Contract was formed pursuant to clause 2.2 and the date of Completion or payment (whichever is the later).
4.4 Any variation to the Work agreed between the parties after the Contract has been entered shall not constitute a new contract, but shall be deemed to be an amendment of this Contract.
5 TIME, COURTESY/LOAN VEHICLE, DELIVERY AND CHARGES
5.1 The costs of delivery will be set out in the Order.
5.2 Dates given for Completion of Work or delivery of Goods are estimates only. Time is not of the essence of the Contract. The Trader will use reasonable endeavours to perform Work or supply Goods within the time (if any) specified to the Customer.
5.3 The Customer shall not be entitled to reject Work or Goods completed or delivered later than the estimated date, except as provided for by clause 5.4.
5.4 If the Goods are not delivered within three calendar months of the estimated delivery date, either party may elect by notice in writing to the other party to cancel this Contract. Upon such cancellation any payment for the Goods made by the Customer shall be returned and the Trader shall be under no further liability to the Customer.
5.5 If the Work has not been completed by the Trader by the estimated date the Trader shall complete the Work within a reasonable time thereafter.
5.6 The Trader shall not be responsible for any delays outside its control. In such circumstance, the Trader may suspend or delay delivery and shall not be liable for any loss, damage or delay occasioned by failure to deliver Goods or complete Work on the estimated delivery date.
5.7 If the Trader fails to perform the Work or deliver the Goods within a reasonable time the Customer shall have the right to end the Contract and receive a full refund for any Works that have been paid for in advance but have not yet been performed.
5.8 Unless otherwise agreed in writing, delivery of the Goods/Work shall take place at the Trader’s premises at an agreed time and date. The Trader reserves the right to charge reasonable storage costs in accordance with clause 6.
5.9 Courtesy and/or loan vehicles will only be provided subject to management approval and the Customer meeting the Trader’s criteria (available on request).
6.1 Unless otherwise agreed in writing with the Trader, where a Vehicle is left on the Trader's premises for more than 7 days after Completion, or in the case of an estimate, more than 14 days after the estimate of cost has been issued to the Customer, the Trader shall be entitled to store the Vehicle itself or (at the Trader's absolute discretion) have it stored at a local third party's storage facility. The Trader fully reserves its right to charge the Customer any and all reasonable costs of such storage. Such storage charges shall be added to and form part of the Contract price. The Customer shall be deemed to have given instructions to the Trader for the storage of the Vehicle for such period and the Trader may retain possession of the Vehicle until the Customer has paid for the full Contract price.
6.2 If the Customer fails to take delivery of the Vehicle, the Trader may serve on the Customer notice of its intention to sell the Vehicle upon the expiry of 3 months from the date of such notice. If the Customer shall fail within such period to pay all monies due to the Trader and take delivery of the Vehicle the Trader may sell the Vehicle. Upon any such sale the Trader shall pay the balance of the proceeds of sale to the Customer, after the deduction of all monies due to the Trader, interest on overdue amounts, and all costs of sale.
7 COMPLETION AND PAYMENT
7.1 The Trader shall notify the Customer when Goods on order from a Manufacture and/or supplier are ready for collection. If the Customer shall fail to pay for and take delivery of such Goods within 7 days of such notice the Trader shall (without prejudice to its other rights and remedies under the Contract) be entitled to treat the Contract as rejected and to sell the Goods.
7.2 Goods ordered from stock shall be delivered upon payment of the price.
7.3 Upon completion of Work the Trader shall advise the Customer that the Vehicle is ready for collection and the Customer shall be obliged to pay for Work and/or Goods and collect the Vehicle. The Customer will pay the Trader for all Work done and Goods supplied and any storage charges before the Vehicle may be removed from the Trader’s premises.
7.4 Interest will be charged on all sums due under or by way of damages for breach of the Contract at the rate of 2% per annum above the base rate of Lloyds Bank PLC from time to time in force and shall be calculated and accrue on a day-to-day basis from the date on which payment fell due until payment whether made before or after judgment has been obtained.
7.5 The Trader may at any time at its absolute discretion appropriate any payment by the Customer to such outstanding debt as the Trader thinks fit notwithstanding any purported appropriation to the contrary by the Customer.
7.6 The Trader reserves the right at any time at its absolute discretion to demand security for payment before continuing performance of an Order.
7.7 Without prejudice to the provisions of clause 7.4 and to the Trader’s other rights and remedies for breach of contract or otherwise, the Trader reserves the right to make a single late-payment charge to cover the Trader’s administrative expenses of recovery (up to but not including issue of proceedings). Such charge shall be added to and form part of the price payable by the Customer if the Customer does not make payment in full for the Goods or Work on or before the due date in accordance with this clause 7. The amount of such charge shall be calculated at 2.5% of the total invoice price and shall be shown as a separate item on the invoice to the Customer but payable only in the event of late payment.
7.8 Payment made by cheque shall not be treated as received by the Trader until it has been cleared.
8 RISK AND RETENTION OF TITLE
8.1 Goods are at the risk of the Customer as soon as they are delivered by the Trader to the Customer.
8.2 Until the Trader has received payment in full of all sums owed to it on any account by the Customer, whether arising out of the Contract or any other contract, legal and beneficial title to the Goods shall remain in the Trader; such goods are referred to in this condition as 'Retained Goods'.
8.3 The Customer will store Retained Goods separately from his own goods or those of any other person, keep them safe, in good condition and clearly identifiable as the Trader’s property with all identifying marks intact and legible.
8.4 The Customer irrevocably authorises the Trader to enter upon its premises for the purposes of inspecting Retained Goods and identifying them as the Trader’s property.
8.5 The Customer’s power of possession and use of Retained Goods shall terminate immediately on notice from the Trader if:
(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
(b) the Customer 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 is the subject of a bankruptcy petition, application or order; or
(c) an encumbrancer takes possession of any of the property or assets of the Customer; or
(d) the Trader reasonably believes that any event mentioned above is about to occur in relation to the Customer.
8.6 Upon suspension, revocation or determination of the power of possession and use of Retained Goods the Customer shall place all the Retained Goods in its possession or under its control at the Trader's disposal and shall be deemed irrevocably to authorise the Trader to enter upon any of its premises with or without vehicles for the purpose of removing such goods.
8.7 The repossession of Retained Goods by the Trader shall be without prejudice to all or any of the Trader's other rights or remedies against the Customer.
8.8 The Trader shall have a right to keep possession of property in its possession which belongs to the Customer for all monies owing to the Trader by the Customer on any account whatsoever.
9 LOSS OR DAMAGE
9.1 The Trader shall not be liable under this Contract for any unforeseeable loss or damage, including but not limited to:
9.1.1 loss of profit;
9.1.2 loss of use;
9.1.3 loss of anticipated contracts and/or savings;
9.1.4 loss of goodwill;
9.1.5 loss of opportunity; or
9.1.6 loss of business and/or business interruption.
9.2 For the purposes of this clause, loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the Contract was made both parties knew it might happen.
Nothing in these Terms and Conditions excludes or limits the liability of the Trader for death or personal injury caused by the Trader's negligence, for fraud or fraudulent misrepresentation or any other liability that cannot be restricted by law.
9.3 The Trader's maximum aggregate liability under the Contract shall be limited to the price paid by the Customer for the Goods under the Contract.
9.4 The Customer is strongly advised before delivering the Vehicle to the Trader to remove from the Vehicle any items of property not related to the Vehicle. The Trader shall not be liable for loss or damage to any such item remaining in the Vehicle.
10 REPLACEMENT PARTS
10.1 All parts replaced during performance of the Work, except those that have to be returned to Manufacturers or suppliers under warranty or service exchange arrangements, will be retained by the Trader for return to the Customer upon collection of the Vehicle. If the Customer does not ask to take possession of such replaced parts when collecting the Vehicle, then they shall become the property of the Trader to dispose of as it deems fit.
11 RETURNED GOODS
11.1 The Trader may (in its absolute discretion) agree to accept return of Goods and cancel the Contract upon the following conditions:
11.1.1 the Goods were not specially ordered from the Manufacturer or supplier for the Customer; and
11.1.2 the Customer returns the Goods unused and in good condition with original packaging fully intact and un-opened within 5 Working Days of delivery subject to Manufacturers' exclusions (a current copy of exclusions is available for inspection at the Trader's premises); and
11.1.3 the Customer produces the original invoice for the Goods; and
11.1.4 the Customer pays the Trader’s current handling charges for returned Goods. A copy of the current handling charges is available for inspection at the Trader's premises.
12.1 The Trader shall be entitled to appoint sub-contractors for the performance of its obligations under the Contract but the Trader shall be responsible for the quality of the sub-contractor's work.
13 HEALTH AND SAFETY
13.1 Upon delivery of a Vehicle to the Trader the Customer shall immediately inform the Trader of any circumstances or matters known to him which render the Vehicle unsafe or in a hazardous condition.
13.2 For the purposes of Section 2 of the Customer Protection Act 1987, the producer of Manufacturer Parts is the Manufacturer.
13.3 The instructions for use, cautionary notices and other technical notices supplied to the Customer with the Goods have been prepared by the relevant Manufacturer of the Goods. The Customer should read such notices carefully. The Trader shall not be liable for any loss or damage suffered by the Customer through the Customer’s failure to read and comply with instructions in such notices.
14.1 Genuine Manufacturer parts fitted to the Vehicle or supplied as Goods are warranted by the Manufacturer free from defect for 12 months from the date of supply. In respect of any other parts fitted or supplied as Goods, the Trader assigns to the Customer the benefit of the applicable Manufacturer’s warranty (if any).
14.2 The Trader warrants that Work is free from defects for a period of 3 months from Completion or until the Vehicle following Completion has covered 3,000 miles (whichever occurs sooner) (‘the Warranty Period’).
14.3 If the Work includes painting then:
14.3.1 if the metal to be painted is rusted, whilst every reasonable precaution will be taken to prevent rust penetrating the paint after Completion no warranty can be given in this respect and accordingly the Trader shall not be liable for rust-affected paintwork appearing after Completion.
14.3.2 no warranty can be given that the new paintwork will match existing paintwork exactly.
14.4 If within the Warranty Period material defects in the Work shall be discovered and:
14.4.1 the Customer notifies the Trader within 14 days after discovery giving particulars and returns the Vehicle to the Trader’s premises to allow an inspection to be carried out; and
14.4.2 such defect has arisen from faulty materials employed or workmanship carried out by the Trader, then the Trader shall remedy the defect and, if necessary, supply replacement parts. Any parts so replaced shall become the property of the Trader to dispose of as it deems fit.
14.5 The Trader’s liability under this condition applies only to defects appearing whilst the Vehicle has been used and driven in a proper manner and serviced in accordance with the Manufacturer’s recommendations and in particular (but without limitation) the Trader shall not be liable in the case of defects arising out of normal deterioration, failure to follow Manufacturer’s instructions or improper or faulty handling of the Vehicle.
14.6 The warranties contained in this clause 14 are in addition to any statutory rights implied in favour of the Customer.
15 DISTANCE SELLING
15.1 Without affecting any other right or remedy available to it, the Customer may terminate the Contract for Work within 14 days of the Contract being formed as provided in clause 2.2 if it is formed somewhere other than on the Trader's business premises. If the Customer wishes to exercise such right, the Customer should send a notice stating its intention to do so to the Trader at Vantage Motor Group Limited, Knaresborough Toyota, York Road, Knaresborough, North Yorkshire, HG5 0SS .
15.2 The cancellation period will expire 14 days after the day on which the Customer, or a third party on your behalf, takes delivery or otherwise acquires physical possession of the Goods. To exercise this right to cancel:
15.2.1 the Customer should send back any Goods to the Trader to the address notified by the Trader, not later than 14 days after the day on which they communicate cancellation of the contract;
15.2.2 the Customer will bear the cost of returning any Goods;
15.2.3 the Customer must take all reasonable care of Goods and will be responsible for any loss or damage of Goods from when they are delivered until they are returned to the Trader; and
15.2.4 Subject to compliance with this clause 15.2, the Customer will be reimbursed (using the same means).
16.1 The Trader shall perform the Work with reasonable care and skill and in accordance with the Contract.
16.2 If the Trader breaches clause 16.1, notwithstanding clause 9, the Customer may request the Work to be done again (if possible) or for a reduction in the price paid for the Work.
17 FORCE MAJEURE
17.1 The Trader shall not be liable to the Customer or be deemed to be in breach of the Contract for reason of any delay in performing or any failure to perform, any of its obligations under the Contract, if the delay or failure was due to any cause beyond the Trader's reasonable control or owing to any inability to procure parts or materials required for the performance of the Contract. Without limitation, the following shall be regarded as causes beyond the Trader's reasonable control:
17.1.1 act of God, explosion, flood, tempest, fire or accident;
17.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
17.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
17.1.4 import or export regulations or embargoes;
17.1.5 strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Trader or of a third party);
17.1.6 difficulties in obtaining Goods, raw materials, labour fuel, parts of machinery;
17.1.7 power failure or breakdown of machinery.
17.2 The Trader shall notify the Customer as soon as reasonably practicable after circumstances preventing performance arise.
18.1 Any notice that is given under the Contract may only be given in writing and sent to the recipient party by post or fax to the recipient party's correspondence address stated in the Order. Any notice shall be deemed to have been received:
18.1.1 in the case of fax on the day of transmission if sent before 4pm, otherwise the next Working Day; and
18.1.2 in the case of notice given by post, within two Working Days of the day of posting.
18.2 Proof of dispatch will be evidence of receipt.
19.1 Failure by either party to enforce any of its rights or remedies under the Contract or by law at any time or for any period shall not constitute a waiver of that or any other right or remedy unless it is in writing. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.2 Neither party may assign the Contract without the written consent of the other party.
19.3 Any variation of these Terms and Conditions shall not be effective unless made in writing and signed by an authorised representative of the Trader and the Customer.
19.4 If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall 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 shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Terms and Conditions.
19.5 The Contract is governed by the Laws of England and the parties shall submit to the exclusive jurisdiction of the English Courts.
19.6 No person who is not a party to the Contract may enforce any term of the Contract.
19.7 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.