The Customer's attention is drawn in particular to the provisions of clause 10.
1.1 Definitions. In these Conditions, the following definitions apply:
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.
Contract: the contract between RBR and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from RBR.
Force Majeure Event: has the meaning given in clause 11.
Goods: the goods (or any part of them), including engines re-built by RBR, set out in the Order.
Order: the Customer's order for the Goods, as set out either in: (i) the Customer's purchase order form; or (ii) the Customer's written acceptance of RBR's quotation: or (iii) in the Customer's purchase order form, the Customer's written acceptance of RBR's quotation as the case may be.
Specification: any specification for the Goods, including any related plans and drawings, which is agreed in writing by the Customer and RBR.
RBR: Rob Beere Racing Services Limited (registered in England and Wales with company number 4510858).
RBR Website: http://www.rob-beere-racing.co.uk/as modified from time to time.
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.
(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 Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the RBR 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, representation, assurance or warranty made or given by or on behalf of RBR which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by RBR and any descriptions or illustrations displayed on the RBR Website are produced for the sole purpose of giving an approximate idea of the Goods as described on the RBR Website. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by RBR shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1 The Goods are solely as described on the RBR Website as modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify RBR 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 reasonable professional costs and expenses) suffered or incurred by RBR in connection with any claim made against RBR for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with RBR's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 RBR reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4.1 Unless otherwise agreed in writing by RBR, delivery of the Goods shall take place by RBR giving possession of the Goods to a carrier at RBR’s place of business for onward carriage to the Customer.
4.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. RBR shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide instructions that are relevant to the supply of the Goods.
4.3 If RBR fails to deliver the Goods, its liability shall 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.
4.4 If RBR has agreed that delivery of the Goods shall be by the Customer collecting the Goods from RBR’s place of business and the Customer fails to take delivery of the Goods within three Business Days of RBR notifying the Customer that the Goods are ready for collection then, except where such failure or delay is caused by a Force Majeure Event or RBR's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which RBR notified the Customer that the Goods were ready for collection; and
(b) RBR shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.5 If 10 Business Days after the day on which the RBR notified the Customer that the Goods were ready for collection the Customer has not taken delivery of them, RBR may resell or otherwise 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.
4.6 The Customer shall not be entitled to reject the Goods if RBR delivers up to and including 2% more or less than the quantity of Goods ordered. The Customer shall pay a pro rata amount of the price for the Goods stated in the Contract.
4.7 RBR may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. QUALITY WARRANTY
5.1 Subject as provided in clause 10.3, RBR warrants that on delivery the Goods shall:
(a) conform with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by RBR.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the RBR within a reasonable time of discovery that some or all of the Goods do not comply with the warranty in clause 5.1;
(b) RBR is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by RBR) returns such Goods to RBR's place of business at the Customer's cost, RBR shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 RBR shall not be liable for Goods' failure to comply with the warranty in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow RBR's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of RBR following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or modifies such Goods without the written consent of RBR;
(e) the Goods are incorrectly fitted to another product, assembly or vehicle or when correctly fitted are not configured correctly to the use to which they will be put;
(f) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(g) the defect arises because the product, assembly or vehicle in which the Goods were fitted was used or operated in such manner as to strain or exceed the Goods capacity to withstand such use or operation; or
(h) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, RBR shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by RBR.
6. ENGINE WARRANTY
6.1 Subject as hereinafter provided, all engines completely rebuilt by RBR (but excluding race engines to which clause 10.3 applies) carry a full warranty for one year or 12,000 miles, whichever comes first. Each engine will be completely re-built, logged, sealed, run for a minimum of four hours, set up and the cylinder head(s) re-torqued. Although run for four hours, the engine will not have been fully run-in by the time of delivery to the Customer and therefore the Customer, after taking delivery of the engine, shall observe, or procure that a third party having possession of the engine shall observe, the following procedures:
(a) for the first 500 miles not run the engine at more than 4,000rpm and under no circumstances at more than 6,000rpm;
(b) the engine shall at all times be run with antifreeze and will require an oil and filter change after 500 miles, as the oil supplied by RBR is for running in purposes only, and the fresh oil must be of good quality and of the correct viscosity.
6.2 The warranty in clause 6.1 is automatically invalidated under any of the following circumstances:
(a) if the engine is incorrectly fitted into the vehicle or if worn, damaged or malfunctioning ancillary parts are fitted to the engine; e.g. worn hoses, fraying fan belt or blocked or damaged radiator;
(b) if the engine is over revved or the oil and antifreeze levels in the engine are not regularly checked or the oil and antifreeze are not regularly changed;
(c) if the engine is used for competition.
6.3 Due to various configurations of flywheel, bell housing and starter motor, it is essential that any engine delivered by RBR without either flywheel or gearbox attached, be turned via the starter motor powered by a 12 volt DC supply to ascertain correct firing order of the cylinders and general configuration of the engine before fitment to the car. All engines fitted with gearbox and flywheel supplied by RBR will also have to be tested in the same way.
6.4 Any work required to be done to the engine under the warranty in clause 6.1 must be done only by RBR. The Customer shall bear all transportation costs for sending the engine to RBR
6.5 The warranty in clause 6.1 comes into effect only when all monies due from the Customer to RBR have been paid in full.
6.6 The warranty in clause 6.1 only applies to an engine rebuilt by RBR and not to an engine that has been repaired by RBR including any engine that is repaired by RBR under clause 6.4.
7. TITLE AND RISK
7.1 The risk in all Goods shall pass to the Customer on delivery.
7.2 Title to any of the Goods shall not pass to the Customer until RBR receives payment in full (in cash or cleared funds) for the Goods and any other goods that RBR has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as RBR's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify RBR immediately if it becomes subject to any of the events listed in clause 9.2; and
(e) give RBR such information relating to the Goods as RBR may require from time to time.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2, then, without limiting any other right or remedy RBR may have:
(a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) RBR may at any time:
(i) require the Customer to deliver up to RBR or to its nominee all Goods in the Customer’s possession which have not been resold, or irrevocably incorporated into another product, assembly or vehicle; and
(ii) if the Customer fails to do so promptly, enter, or its nominee may enter, any premises of the Customer or of any third party where the Goods are kept and recover them.
8. PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the RBR Website and in force as at the date of delivery.
8.2 RBR may, by giving notice to the Customer at any time up to 3 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond RBR's control (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 Specification; or (c) any delay caused by any instructions of the Customer or failure of the Customer to give RBR adequate or accurate information or instructions.
8.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from RBR, pay to RBR such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
8.5 RBR may invoice the Customer for the Goods before, on or at any time after the completion of delivery.
8.6 The Customer shall pay the invoice in full and in cleared funds within 20 Business Days of the date of the invoice. Payment shall be made in accordance with the payment method agreed with RBR when the Order has been accepted in accordance with clause 2.3. Time of payment is of the essence.
8.7 If the Customer fails to make any payment due to RBR under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). RBR 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 RBR to the Customer.
9. TERMINATION AND SUSPENSION
9.1 If the Customer becomes subject to any of the events listed in clause 9.2, RBR may terminate the Contract with immediate effect by giving written notice to the Customer.
9.2 For the purposes of clause 9.1, the relevant events are:
(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 or limited liability partnership) 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 other than (where the Customer is a company) where these events take place 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;
(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 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;
(e) (being a company) the holder of a qualifying floating charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(h) 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 14 days;
(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 9.2(a) to clause 9.2(f) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the Customer's financial position deteriorates to such an extent that in RBR'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.
9.3 Without limiting its other rights or remedies, RBR may suspend delivery of the Goods under the Contract or any other contract between the Customer and RBR if the Customer becomes subject to any of the events listed in clause 9.2(a) to clause 9.2(l), or RBR reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to RBR all of RBR's outstanding unpaid invoices and interest.
9.5 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
9.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude RBR'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;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for RBR to exclude or restrict liability.
10.2 Subject to clause 10.1:
(a) RBR 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 arising under or in connection with the Contract; and
(b) RBR'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 100% of the price of the Goods.
10.3 RBR shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, to replace any Goods that in any way fail in any application to which those Goods have been put by the Customer or by RBR at the Customer’s request if the Goods were designed, supplied or intended to be used in connection with racing. A condition of the Contract between RBR and the Customer is that the Customer acknowledges that such Goods are by their nature less durable than Goods designed, supplied or intended to be used in connection with automotive purposes other than racing.
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 suppliers or subcontractors.
12.1 Assignment and other dealings.
(a) RBR may at any time assign, transfer, mortgage, 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, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of RBR.
(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 or other next working day delivery service, commercial courier, fax or e-mail.
(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 other next working day delivery service, 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 fax or e-mail, 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.
(a) If any provision or part-provision of the Contract 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 Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.4 Waiver. A waiver of any right or remedy under the Contract or law 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 prevent or restrict the further exercise of that or any other right or remedy. 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.
12.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by RBR.
12.7 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
12.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).