NORTHERN COMMERCIALS (MIRFIELD) LTD
These Conditions set out the entire terms and conditions upon which the Supplier has agreed to supply goods and/or services to the Customer and shall apply to the exclusion of any other terms and conditions including any other terms and conditions which the Customer may purport to apply whether through the use of any standard form documents or otherwise.
1.1 In these Conditions the following words have the following meanings: Allowance means the sum specified on the Order as permitted by the Supplier against a Part Exchange Vehicle; Conditions means these terms and conditions; Contract means a contract between the Customer and the Supplier for the sale and purchase of Goods and/or Services made subject to these Conditions which has come into force following the acceptance of an Order in accordance with Clause 2.3; Customer means the customer purchasing Goods and/or Services from the Supplier as set out in the Order; Encumbrance includes (without limitation) any interest or equity of any person, any mortgage, pledge, lien, assignment, hypothecation, security interest, title retention or any other security obligation or any agreement or obligation to create any of the foregoing; Force Majeure Event means any circumstance beyond the control of the Supplier including any act of God, war, riot, terrorism, explosion, abnormal, extreme or unusual weather conditions, disease, virus, epidemic or pandemic (including without limitation Covid-19 and any potential mutation or variant of it and any subsequent similar outbreak), government requirements and acts or omissions, quarantine requirements, lockdown, failure of sub-contractors or suppliers, inability or difficulties in obtaining raw materials or other supplies, loss of utilities, fire, flood, strike, lock out or industrial dispute and/or governmental or regulatory authority action; Goods means the new commercial vehicles, used commercial vehicles, spare parts, accessories, and other goods supplied by the Supplier and purchased by the Customer as detailed in any Order and agreed in writing by the Supplier; Insolvency Event means with respect to the Customer that: (a) any meeting of creditors of the Customer is held or any arrangement or composition with or for the benefit of its creditors (including any voluntary arrangement as defined in the Insolvency Act 1986) is proposed or entered into by or in relation to the Customer or the Customer applies to court for or obtains a moratorium under Part A1 of the Insolvency Act 1986; (b) the Customer ceases or threatens to cease carrying on business or is or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; (c) a nominee, supervisor, receiver, administrator, administrative receiver or liquidator is appointed in respect of the Customer or any encumbrancer takes possession of, or any distress, lien, execution or other process is levied or enforced (and is not discharged within seven days) upon, the assets of the Customer; (d) a petition is presented for the winding-up of the Customer or a resolution for its winding up is passed; (e) a notice of intention to appoint an administrator is filed with the court or served on any creditor of the Customer; (f) an application for an administration order in respect of the Customer is issued at court; (g) a meeting is convened for the purpose of considering a resolution for the winding up of the Customer or the making of an application for an administration order or the dissolution of the Customer; (h) any Main or Territorial proceedings are opened within the meaning of the EC Regulation on Insolvency Proceedings 2000 with respect to the Customer; and/or (i) any event analogous to any of the foregoing occurs to the Customer in any jurisdiction; Order means the Customer’s order for any Goods and/or Services as may be set out in any purchase order issued by the Customer to the Supplier or in any other written request for Goods and/or Services which is issued by the Customer to the Supplier from time to time (but excluding in either case any terms and conditions which the Customer may purport to apply in any such purchase order or other written order); Part Exchange Vehicle means the used vehicle offered by the Customer in part exchange for the Goods (being a vehicle), details of which appear on the Order; Price means the price payable by the Customer for the Goods and/or Services (as applicable) as set out in the applicable Order which has been accepted in accordance with Clause 2.3 or, where no price is detailed in the applicable Order, the price for the Goods and/or Services, communicated by the Supplier as being in force as at the date of delivery or supply (as applicable) (subject in either case to adjustment in accordance with Clause Error! Reference source not found. and/or 8.3); Services means the maintenance, servicing, repair and/or other services detailed in any Order and agreed in writing by the Supplier; Supplier means Northern Commercials (Mirfield) Limited with registered office address at Lancaster House, Nunn Mills Road, Northampton, NN1 5GE and company number 01005915.
1.2 In these Conditions and each Contract: headings are inserted for convenience only and shall not affect construction or interpretation; references to Clauses are to the Clauses of these Conditions; words denoting the singular shall include the plural and vice versa; words denoting any gender shall include all genders; any reference to any law, statute, statutory provision, statutory instrument, directive, subordinate legislation, code of practice or guideline shall be construed as a reference to the same as may be amended, consolidated, modified, extended, re-enacted or replaced from time to time; and use of words such as “include”, “including” and “in particular” shall not limit the generality of any preceding or following words which are not intended to be exhaustive.
2.1 These Conditions apply to each Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which otherwise are implied by trade, custom, practice or course of dealing.
2.2 Each Order constitutes an offer by the Customer to purchase the Goods and/or Services in question in accordance with these Conditions. The Customer shall ensure that the terms of any Order submitted by it (including any specifications and requirements relating to the Goods and/or Services) are complete, accurate and not misleading.
2.3 Each Order shall be deemed accepted on the earlier of: (a) the Supplier issuing a written acceptance of the Order; or (b) the Supplier commencing delivery or supply (as applicable) of the applicable Goods and/or Services.
2.4 The Supplier shall be under no obligation to accept any Orders which may be submitted to it from time to time and shall be entitled to decline to accept any Orders without liability or the need to give reason.
2.5 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Supplier warrants that all new Goods supplied by it shall correspond in all material respects with any specification agreed by the Supplier in writing.
3.2 The Supplier may vary the specification for any Goods prior to delivery if necessary in order to comply with any applicable statutory or regulatory requirement or for any other reason provided that in that case, the variation in question does not result in any material adverse change to the specification in the Customer’s Order and agreed by the Supplier.
3.3 Each Contract represents the entire agreement between the parties relating to the supply of the Goods in question and the Customer acknowledges that it will not rely on and has not relied on any statement, promise or representation made by or on the behalf of the Supplier which is not set out in writing in the applicable Contract.
3.4 Any samples, drawings, measurements, descriptions, advertising, photographs, catalogues, websites or similar which may be provided by the Supplier concerning any Goods are produced and provided solely for the purpose of giving an approximate idea of the Goods described and such information and items shall not form part of any Contract nor have any contractual force.
3.5 If the Goods is a used vehicle, it is sold subject to any defects which the Supplier has drawn to the Customer’s attention prior to the Customer placing the Order or otherwise, and subject to any defects which the Customer has discovered or ought to have discovered upon carrying out a reasonable examination prior to placing the Order (irrespective of whether the Customer has carried out such examination) and the Customer agrees that it has been afforded the opportunity to examine the Goods and is satisfied of its suitability for the Customer’s intended purposes and of its satisfactory quality.
3.6 If the Goods are a new vehicle, they are sold solely and exclusively with the benefit of any manufacturer’s warranties, the terms of which are specified in the service record and warranty booklet or other similar documentation issued from time to time by the manufacturer, copies of which are available for inspection at the Supplier’s premises.
4.1 Where pursuant to any Contract: (a) the Supplier has agreed to make delivery to the Customer the Supplier shall deliver the Goods to the location as specified in the applicable Order on or around any delivery date as detailed in the Order or, if no delivery date is detailed in the Order, on the date as specified by the Supplier (although time of such delivery shall not be of the essence); or (b) the Customer is to collect the Goods from the Supplier then the Customer shall collect such Goods from the location advised by the Supplier during the usual working hours of the Supplier on the date on which the Supplier advises the Customer that such Goods are ready for collection (and time for collection of such Goods shall be of the essence) and such collection shall constitute “delivery” for the purposes of these Conditions.
4.2 In the event that the Customer fails to: (a) accept delivery of any Order when the Supplier first attempts to make delivery; or (b) collect any Order within the time period required under Clause 4.1 then in either case: (c) risk of loss or damage occurring to the relevant Goods shall be deemed to pass to the Customer at the time when the Supplier first attempted to make delivery or upon the expiry of the time period specified in Clause 4.1 (as applicable); and (d) the Customer shall indemnify the Supplier in full on demand for all costs and expenses incurred by the Supplier in storing the Goods in question and attempting re-delivery.
4.3 The Supplier may deliver Goods in instalments, the Price of which shall be invoiced and paid for separately. Any such instalment shall constitute a separate Contract and any delay in delivery or defect in one instalment shall not entitle the Customer to cancel any other instalment.
5.1 The Customer shall: (a) conduct a thorough visual inspection of any Goods on delivery and shall notify the Supplier in writing of any damage or other apparent failure of the Goods to comply with the warranty set out at Clause 3.1 on delivery within three days of the date of delivery; and/or (b) shall notify the Supplier in writing of any failure of any Goods to comply with the warranty set out at Clause 3.1 which arises after the date of delivery within three days of the date on which the Customer first became aware of the failure in question.
5.2 In the event of the Customer making any claim under the warranty set out at Clause 3.1 which the Supplier (acting reasonably) considers to be valid then the Supplier shall (at its discretion) as soon as reasonably practicable either replace the Goods (or the affected part of the Goods) or refund to the Customer the Price actually paid by it to the Supplier for the Goods. Any such replacements shall be subject to the warranty set out at Clause 3.1.
5.3 The Customer shall on request: (a) permit the Supplier to access any premises where any Goods which are the subject of a warranty claim are located for the purposes of inspecting and testing those Goods; and/or (b) promptly return to the Supplier (at the Customer’s expense) any Goods which are the subject of a warranty claim.
5.4 The Customer shall on demand reimburse the Supplier for any reasonable costs and expenses which are incurred by it in investigating any warranty claim made by the Customer which is subsequently found to be invalid for any reason.
5.5 Compliance by the Supplier with its obligations under Clause 5.2 shall represent the Customer’s sole and exclusive remedy (and the Supplier’s only liability) in respect of any failure of the Goods to comply with the warranty set out at Clause 3.1 (subject at all times to Clause 10.1).
5.6 The terms implied by sections 13 – 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from any Contract.
6.1 The Supplier shall have no liability or responsibility to the Customer (whether under any Contract or otherwise) in respect of any failure of the Goods to comply with the warranty set out at Clause 3.1: (a) which is not notified by the Customer to the Supplier in accordance with Clause 5.1; (b) in the event that the Customer fails to comply with its obligations under Clause 5.3; (c) in the event that the Customer makes any further use of, or sells on the Goods after becoming aware of any failure of the Goods to comply with the warranty set out at Clause 3.1; (d) which is attributable to any failure by the Customer to follow the Supplier’s oral or written instructions as to the storage, handling and use of the Goods and/or any failure by the Customer to follow good trade practice regarding the same; (e) in the event that the Customer alters or repairs the Goods (or permits any third party to do so) without the written consent of the Supplier and/or otherwise than in accordance with manufacturer’s service schedules and using approved parts; (f) where any failure of the Goods arises as a result of fair wear and tear, wilful damage, negligence, or abnormal or incorrect storage or working conditions; and/or (g) where any Goods differ from their specification as a result of changes made to ensure that the Goods comply with any applicable legal or regulatory requirements.
7.1 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
7.2 The Supplier shall use reasonable endeavours to: (a) supply the Services to the Customer in accordance with any specifications agreed by the Supplier in writing in all material respects; and (b) meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Services and/or any agreed specifications if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not result in any material adverse change to the Services and/or the relevant specification, and the Supplier shall notify the Customer in any such event.
7.4 Any descriptions, advertising, catalogues, brochures, websites or similar which may be provided by the Supplier concerning the Services are produced and provided solely for the purpose of giving an approximate idea of the Services described and such information and items shall not form part of any Contract nor have any contractual force.
7.5 The Customer shall: (a) co-operate with the Supplier in all matters relating to the Services; (b) provide the Supplier with such information, documentation, specifications and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information, documentation specifications and materials are complete, accurate and not misleading; (c) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services commence; and (d) comply with any additional obligations notified to it in writing by the Supplier from time to time.
7.6 If the Supplier’s performance of its obligations under any Contract is prevented or delayed by any act, breach, delay, failure or omission of the Customer or any of its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall not be deemed to be in breach of the relevant Contract and shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
7.7 The Supplier has given commitments in relation to the Services at Clauses 7.1 and 7.2 and in view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from any Contract.
8.1 Any quotations which are provided by the Supplier do not constitute an offer which is capable of acceptance by the Customer and may be withdraw by the Supplier without liability at any time. Any quotations not withdrawn earlier by the Supplier shall automatically lapse 30 days after the date of issue.
8.2 All Prices for the Goods are stated exclusive of the costs and expense of packaging, insuring and transporting the Goods to the Customer which shall be paid for by the Customer in addition.
8.3 The Supplier shall be entitled at any time prior to invoicing the Customer for the Price of an Order to increase that Price to reflect any increase to the Supplier’s costs of sourcing, manufacturing and supplying the Goods and/or supplying the Services in question (including variations in the cost or rate of road fund licences or car tax).
8.4 All Prices are stated exclusive of VAT which shall be paid by the Customer in addition at the rate from time to time in force (subject to the provision of a VAT invoice by the Supplier).
8.5 Unless the Supplier has agreed to grant the Customer credit terms (or should the Customer have exceeded any credit limit set by the Supplier from time to time), the Customer shall pay the Price of each Order to the Supplier in full in cleared funds prior to the date of delivery of the Goods and/or supply of the Services (as applicable).
8.6 Where the Supplier has agreed to grant the Customer credit terms then unless otherwise agreed in writing, the Supplier may invoice the Customer for the Price of each Order at any time on or after completion of delivery or supply (as the case may be) and the Customer shall pay all such invoices in full in cleared funds within 30 days of the date of invoice.
8.7 Time of payment shall be of the essence.
8.8 The Supplier shall be entitled to suspend, vary or withdraw any credit terms granted by it to the Customer at any-time on notice.
8.9 In the event that the Customer fails to pay any sum due from it under any Contract (including the Price) by the due date for payment then without prejudice to any other rights or remedies available to it (whether under the applicable Contract or otherwise) the Supplier shall be entitled to charge interest on such amount together with the cost of recovery in each case, in accordance with the Late Payment of Commercial Debt (Interest) Act 1998.
8.10 The Price together with any other amounts which may be due to be paid by the Customer to the Supplier under any Contract shall be paid by the Customer in full in cleared funds without set-off, withholding, deduction or counterclaim.
8.11 All sums payable by the Customer to the Supplier under any Contract (including the Price) shall become immediately due and payable by the Customer upon termination of the Contract in question.
8.12 The Customer may, after signing the Order, arrange for a finance company to fund the purchase of the Goods from the Supplier for the Price. Where the Customer uses such a finance company, the identity of the Customer shall not change and the Supplier will invoice the Customer. The Customer may request that the Supplier receives the Price, or part thereof, directly from the finance company and provide reasonable assistance to the Customer (without providing advice on any such financing) in their purchase of the Goods using funding which the Customer has arranged.
9.1 Risk of loss or damage occurring to Goods shall pass from the Supplier to the Customer upon completion of delivery of the Goods in question or as otherwise provided for under Clause 4.2.
9.2 Ownership of any Goods delivered to the Customer shall not pass from the Supplier to the Customer unless and until the Supplier has received from the Customer in full in cleared funds: (a) the Price of the Goods in question; and (b) any other payment which is due to be paid by the Customer to the Supplier under any other Contracts in force from time to time.
9.3 Until title to any Goods has passed to the Customer, the Customer shall: (a) hold those Goods on a fiduciary basis as the Supplier’s bailee; (b) store those Goods separately from any other items held by the Customer so that they remain readily identifiable as the Supplier’s property; (c) not remove, deface or obscure any markings on the Goods or their packaging which identifies the Goods as the Supplier’s property; and (d) maintain the Goods in a safe and good condition, keep them insured against all usual risks for their full Price and use them only in the ordinary course of its business but for no other purpose; and (e) not create any Encumbrance over the Goods nor do anything inconsistent with the Supplier’s title to the Goods.
9.4 The Customer’s right of possession of any Goods in respect of which title has not passed to it shall immediately end in the event that the Customer suffers any Insolvency Event and the Customer shall notify the Supplier immediately should it suffer any Insolvency Event and shall also inform any receiver, manager, administrative receiver or similar who may be appointed with respect to any assets of the Customer that those Goods belong to the Supplier and are not assets belonging to the Customer.
9.5 The Customer shall allow the Supplier or its authorised representatives on request access to any premises where any Goods in respect of which title has not passed to the Customer may be stored (or in the case of any premises not under the control of the Customer, shall procure that such access is granted for the Supplier or its authorised representatives) for the purposes of inspecting those Goods and verifying the compliance by the Customer with its obligations under Clause 9.3 and/or where the Customer’s right of possession of those goods has ended, for the purposes of recovering those Goods.
10.1 Neither party seeks to limit or exclude in any way its liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; in respect of any breach of any condition implied under section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; and/or for any other matter or liability which cannot be lawfully limited or excluded. Each provision of each Contract shall be read as subject to this Clause 10.1 and no provision of any Contract is intended to nor shall be interpreted as seeking to limit or exclude any of the foregoing types of liability.
10.2 Subject at all times to Clauses 10.1 and 10.3, the maximum liability of the Supplier to the Customer for all claims under any Contract howsoever arising (including under any indemnity) shall be limited in aggregate to the Price actually paid by the Customer to the Supplier under the Contract in question.
10.3 The Supplier shall not be liable (whether under the terms of any Contract under any indemnity or otherwise) for: loss of business; loss of use; loss of profit; loss of anticipated profit; loss of contracts; loss of revenues; loss or damage to goodwill or brand; loss of anticipated savings; loss of data or use of data; product recall costs; damage to reputation; and/or any consequential, special or indirect loss or damage in any case, regardless of whether or not the Supplier was aware or had been made aware (or ought reasonably to have been aware) at the time of the relevant Contract being formed of the risk that such loss or damage might occur.
10.4 The Supplier shall not be in breach of any Contract nor liable for any failure or delay in complying with any of its obligations under any Contract in the event that the failure or delay in question is attributable to any Force Majeure Event.
11.1 If: (a) the Customer becomes subject to any Insolvency Event; or (b) the Supplier reasonably believes that the Customer is about to become subject to any Insolvency Event and notifies the Customer of such belief in writing; or (c) any amount due to be paid by the Customer to the Supplier under any Contract is overdue, then the Supplier may in any such case (and without prejudice to any other rights or remedies available to it whether under any Contract or otherwise) suspend without liability any or all further deliveries of Goods and/or supply of Services under any or all Contracts and/or terminate any outstanding Contracts in either case, without liability to the Customer.
11.2 The Supplier may terminate any or all outstanding Contracts in the event that the Customer is in breach of any of its obligations under any Contract and, in the case of a breach which is capable of remedy, the Customer fails to remedy the same within 5 days of receipt of notice from the Supplier requesting it to do so.
11.3 Termination or expiry of any Contract shall not affect the continuing in force or coming into force of any provision of a Contract which, whether expressly or by implication is to survive termination or expiry.
11.4 Unless otherwise permitted in these Conditions, the Customer may not cancel the Contract without the prior written agreement of the Supplier. If the Customer seeks to cancel the Contract in any other manner, the Supplier may (without prejudice to its other rights and remedies) retain any deposit requested by the Supplier and paid by the Customer and charge any reasonable costs and/or expenses incurred by the Supplier in connection with cancellation of the Contract.
11.5 If the Supplier is unable to supply Goods which are accessories (of whatever nature) the Supplier may at its option either substitute a reasonable equivalent, or delete the accessory from the Order and reduce the Price by an amount equal to the price of the accessory in question. The Supplier’s inability to supply an accessory shall not constitute a breach of Contract or entitle the Customer to repudiate the Contract or reject a vehicle.
12.1 This clause 12 shall apply if the Customer has proffered a Part Exchange Vehicle.
12.2 Where the Supplier agrees to allow part of the Price to be discharged by the Customer delivering to the Supplier the Part Exchange Vehicle, the Allowance is given and received and the Part Exchange Vehicle is delivered and accepted as part of the Contract (and not as a separate contract between the Customer and the Supplier) on the terms set out in these Conditions.
12.3 The Customer passes to the Supplier good title to the Part Exchange Vehicle free from Encumbrances.
12.4 The Customer shall permit the Supplier to examine the Part Exchange Vehicle for the purpose of calculating the Allowance and the Customer warrants that the condition of the Part Exchange Vehicle as delivered to the Supplier at the time of delivery of the Goods (being a vehicle) to the Customer is the same as that existing at the time of the Supplier’s most recent examination.
12.5 Title to the Part Exchange Vehicle shall pass to the Supplier on delivery.
12.6 The Customer shall deliver the Part Exchange Vehicle to the Supplier immediately on receipt of notice that the Goods (being a vehicle) is ready for collection.
12.7 If any of the Customer’s obligations under this clause 12 are not fulfilled the Supplier shall be discharged from any obligation to purchase the Part Exchange Vehicle or to make the Allowance and the Customer shall be obliged to discharge the Price in full.
13.1 Any notices to be served on either party by the other shall be in writing and sent by pre-paid registered post to the registered office address of the other party or such other address as is notified in writing by that party from time to time. Such notice shall be deemed to have been received by the addressee 72 hours after posting provided applicable evidence of posting is retained and produced on request.
13.2 Whilst the parties may make operational communications via email, formal notice may not be served via email.
13.3 The parties are with respect to each other independent contractors and nothing in these Conditions or any Contract and no actions taken by the parties under any of these Conditions or any Contract shall be deemed to constitute any agency, partnership, association, joint venture or other co-operative enterprise between the parties.
13.4 Each Contract represents the entire agreement between the parties relating to the supply of the Goods and/or Services in question and supersedes all previous representations made and/or agreements, negotiations and discussions between the parties relating to the same. Each party acknowledges that in entering into any Contract it does not rely on, and shall 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 shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
13.5 Save only to the extent as may be specifically provided for otherwise under these Conditions, no variation or amendment of any Contract shall be binding unless made in writing and signed by or on the behalf of each of the parties.
13.6 The Customer may not assign or transfer any of its rights and/or obligations under any Contract without the prior written consent of the Supplier. The Supplier may assign or transfer any or all of its rights and/or obligations under any Contract on notice to the Customer.
13.7 The Supplier may sub-contract the performance of any of its obligations under any Contract without the prior consent of the Customer.
13.8 Any Supplier group companies shall be entitled to rely upon the benefit of any Contract and to enforce any Contract pursuant to the Contracts (Rights of Third Parties) Act 1999. Subject to the foregoing, a person who is not a party to a Contract shall have no right to enforce any term of that Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
13.9 If any provision of these Conditions or of any Contract is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, the remaining provisions shall remain in full force and effect.
13.10 The failure to exercise or delay in exercising any right or remedy under these Conditions or any Contract shall not be regarded as a waiver of such right or remedy, or a waiver of other rights or remedies. No single or partial exercise of any right or remedy under these Conditions or any Contract shall prevent any further exercise of the right or remedy or any other right or remedy.
13.11 These Conditions and each Contract shall be governed by English law and, save in respect of the enforcement of any judgment, the parties agree to submit to the exclusive jurisdiction of the English courts.