Euro Commercials (South Wales) Limited Sales Terms & Conditions
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Acknowledgement of Order: an acknowledgement of order issued by Euro Commercial in accordance with condition 2.5.
Buyer: the purchaser of the Vehicles from Euro Commercials.
Contract: any contract between Euro Commercials and the Buyer for the sale and purchase of the Vehicles, incorporating these conditions.
Delivery Point: the place of business of Euro Commercials or as otherwise agreed in writing by Euro Commercials.
Director: a director from time to time of Euro Commercials.
Euro Commercials: Euro Commercials (South Wales) Limited, registered with company number 1459115.
Manufacturer: the manufacturer of the relevant Vehicles.
Part Exchange Vehicle: means any vehicle that Euro Commercials accepts in part exchange for the purchase of a Vehicle or Vehicles in accordance with condition 6.3.
Parties: the Buyer and Euro Commercials.
Specification for Alteration: the written specification agreed between the Buyer and Euro Commercials setting out the alterations or fit out to be carried out on any Vehicle by Euro Commercials prior to delivery.
Vehicles: any vehicle or vehicles or other goods (or any of them) agreed in the Contract to be sold to the Buyer by Euro Commercials.
1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 The Buyer’s attention is drawn to condition 10.4 dealing with the limitation of the liability of Euro Commercials.
2.2 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.3 These conditions apply to all sales by Euro Commercials and any variation to these conditions and any representations about the Vehicles shall have no effect unless expressly agreed in writing and signed by a Director. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Euro Commercials which is not set out in the Contract. Nothing in this condition shall exclude or limit liability of Euro Commercials for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Vehicles by the Buyer from Euro Commercials shall be deemed to be an offer by the Buyer to buy Vehicles subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by Euro Commercials until a written acknowledgement of order (“Acknowledgement of Order”) is issued by Euro Commercials or (if earlier) Euro Commercials delivers the Vehicles to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until Euro Commercials despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that Euro Commercials has not previously withdrawn it, or that the Manufacturer has not altered its list price for such Vehicles since the issue of the Acknowledgement of Order by Euro Commercials.
2.8 If the Manufacturer discontinues the sale of vehicles of the type required to fulfil the Contract Euro Commercials may cancel the Contract and return any deposit to the Buyer without further liability on the part of Euro Commercials.
3. DESCRIPTION AND ALTERATION TO SPECIFICATION
3.1 All specifications (except the Specification for Alteration) and advertising issued by Euro Commercials and any descriptions or illustrations contained in Euro Commercials catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Vehicles described in them. They shall not form part of the Contract.
3.2 If the Customer wishes Euro Commercials to change the standard specification of a vehicle of the Manufacturer and Euro Commercials agrees to this Euro Commercials will issue a Specification for Alteration setting out the agreed alterations.
3.3 The quantity and description of the Vehicles shall be as set out in the Acknowledgment of Order.
3.4 Euro Commercials shall issue a revised Acknowledgement of Order when they have agreed a change to an order from the Customer that Euro Commercials has already accepted.
4. DELIVERY
4.1 Unless otherwise agreed in writing by Euro Commercials, delivery of the Vehicles shall take place at Euro Commercials place of business.
4.2 The Buyer shall take delivery of the Vehicles within 7 days of Euro Commercials giving them notice that the Vehicles are ready for delivery.
4.3 Any dates specified by Euro Commercials for delivery of the Vehicles are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these conditions (and in particular the attention of the Buyer is drawn to Condition 10) Euro Commercials shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Vehicles (even if caused by the negligence of Euro Commercials), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 30 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Vehicles when they are ready for delivery, or Euro Commercials is unable to deliver the Vehicles on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.5.1 risk in the Vehicles shall pass to the Buyer (including for loss or damage caused by Euro Commercials negligence);
4.5.2 the Vehicles shall be deemed to have been delivered; and
4.5.3 Euro Commercials may store the Vehicles until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, the cost of insurance and any stocking charges imposed on Euro Commercials that arise as a result of the failure of the Buyer to take delivery on time) and the Buyer shall immediately reimburse Euro Commercials such costs and expenses upon demand.
4.6 Euro Commercials may deliver the Vehicles by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
5. RISK OF DAMAGE AND OWNERSHIP
5.1 The Vehicles are at the risk of the Buyer from the time of delivery.
5.2 Ownership of the Vehicles shall not pass to the Buyer until Euro Commercials has received in full (in cash or cleared funds) all sums due to it in respect of the Vehicles.
5.3 Until ownership of the Vehicles has passed to the Buyer, the Buyer shall:
5.3.1 hold the Vehicles on a fiduciary basis as Euro Commercials bailee;
5.3.2 not destroy, deface or obscure any identifying mark or packaging on or relating to the Vehicles (for example the chassis number or engine number); and
5.3.3 maintain the Vehicles in satisfactory condition and keep them insured on Euro Commercials behalf for their full price against all risks to the reasonable satisfaction of Euro Commercials. On request the Buyer shall produce the policy of insurance to Euro Commercials.
5.4 The Buyer may resell the Vehicles before ownership has passed to it solely on the following conditions:
5.4.1 any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
5.4.2 any such sale shall be a sale of Euro Commercials property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
5.5 The Buyer's right to possession of the Vehicles shall terminate immediately if:
5.5.1 the Buyer has a bankruptcy order made against them or makes an arrangement or composition with their creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
5.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between Euro Commercials and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
5.5.3 the Buyer encumbers or in any way charges any of the Vehicles.
5.6 Euro Commercials shall be entitled to recover payment for the Vehicles notwithstanding that ownership of any of the Vehicles has not passed from Euro Commercials.
5.7 The Buyer grants Euro Commercials, its agents and employees an irrevocable licence at any time to enter any premises where the Vehicles are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
5.8 On termination of the Contract, howsoever caused, Euro Commercials (but not the Buyer's) rights contained in this condition 5 shall remain in effect.
6. PRICE
6.1 Unless otherwise agreed by Euro Commercials in writing, the price for the Vehicles shall be the price set out in the Acknowledgement of Order.
6.2 Unless explicitly set out in any quote from Euro Commercials or in the Acknowledgement of Order the price for the Vehicles shall be deemed to be inclusive of delivery costs and charges but exclusive of any value added tax, all of which amounts the Buyer shall pay in addition when it is due to pay for the Vehicles.
6.3 If Euro Commercials agrees to part of the price of the Vehicles being satisfied by the Buyer transferring ownership of a Part Exchange Vehicle to Euro Commercials then subject to the following terms the Parties agree to the transfer and the value attributed to the Part Exchange Vehicle as set out in the Acknowledgement of Order).
6.3.1 Such Part Exchange Vehicle is to be delivered to Euro Commercials in the same condition as at the time of the appraisal by Euro Commercials (or, if no such appraisal took place, in the same condition as the date of acceptance of the Part Exchange Vehicle by Euro Commercials) without alteration of any particulars of the Part Exchange Vehicle appraised by Euro Commercials, and if such Part Exchange Vehicle is not in the same condition or if any such particulars are altered or missing at the time of delivery to Euro Commercials a reasonable deduction shall be made from the value attributed to the Part Exchange Vehicle. Any allowance agreed by Euro Commercials prior to the production of the certificate of registration of the Part Exchange Vehicle is subject to the verification of its date of first registration.
6.3.2 If the Part Exchange Vehicle is not delivered within 30 days of acceptance by Euro Commercials or if when delivered the mileage of the Part Exchange Vehicle exceeds by more than 1,000 miles the mileage recorded by Euro Commercials at the time of the appraisal a reasonable alteration may be made by Euro Commercials to the allowance for the Part Exchange Vehicle.
6.3.3 If the Part Exchange Vehicle is the subject of a hire purchase agreement or any other charge or encumbrance whatsoever and a settlement of such hire purchase agreement charge or encumbrance can be made by Euro Commercials thereby transferring ownership of the Part Exchange Vehicle in Euro Commercials, the allowance to be made in respect of the Part Exchange Vehicle shall be reduced by the amount paid by way of settlement.
6.3.4 The Part Exchange Vehicle shall be delivered to Euro Commercials on or before delivery of the Vehicles to the Buyer and the ownership in the Part Exchange Vehicle shall pass to Euro Commercials.
6.3.5 The Buyer confirms that at the date of transfer of ownership of the Part Exchange Vehicle to Euro Commercials the particulars and information given by the Buyer in relation to the Part Exchange Vehicle are true and accurate in all respects and Euro Commercials sells the vehicles relying on this.
7. PAYMENT
7.1 Subject to condition 7.4, payment of the price for the Vehicles is due in pounds sterling and shall be made prior to delivery and on a date agreed by the Parties.
7.2 Time for payment shall be of the essence.
7.3 No payment shall be deemed to have been received until Euro Commercials has received cleared funds.
7.4 All payments payable to Euro Commercials under the Contract shall become due immediately on its termination despite any other provision.
7.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Euro Commercials to the Buyer.
7.6 If the Buyer fails to pay Euro Commercials any sum due pursuant to the Contract, the Buyer shall be liable to pay a handling charge to Euro Commercials being a sum equivalent to the costs incurred by Euro Commercials due to the late payment. By way of example only such costs might include the continuing storage costs of the Vehicles and any additional stocking charges which accrue and are due from Euro Commercials to the Manufacturer. Such handling charge shall accrue on a daily basis until payment is made
7.7 If the Buyer pays a deposit towards the price of the Vehicles this will be set against the Price on the date for payment agreed under condition 7.1 or against any charges for which the Customer is liable under the Contract.
8. WARRANTY AND QUALITY AND FIT OUTS
8.1 Euro Commercials shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to Euro Commercials by the Manufacturer in respect of the Vehicles.
8.2 Without detracting from Condition 8.1 Euro Commercials warrants that (subject to the other provisions of these conditions) on delivery the Vehicles shall:
8.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
8.2.2 be reasonably fit for any particular purpose for which the Vehicles are being bought provided the Buyer has made known that purpose to Euro Commercials in writing and Euro Commercials has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement or Euro Commercials.
8.2.3 comply with the Specification for Alteration.
8.3 Euro Commercials shall not be liable for a breach of the warranty in condition 8.2 unless:
8.3.1 The Buyer gives written notice of the defect to Euro Commercials, and, if the defect is as a result of damage in transit to the carrier, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
8.3.2 Euro Commercials is given a reasonable opportunity (after receiving the notice) of examining such Vehicles and the Buyer (if asked to do so by Euro Commercials) returns such Vehicles to the place of business of Euro Commercials.
8.4 Euro Commercials shall not be liable for a breach of any of the warranties in condition 8.2 if:
8.4.1 the Buyer makes any further use of such Vehicles after giving such notice; or
8.4.2 the defect arises because the Buyer failed to follow Euro Commercials oral or written instructions as to the use or maintenance of the Vehicles or (if there are none) good trade practice; or
8.4.3 the Buyer alters or repairs such Vehicles without the written consent of Euro Commercials.
8.5 Without detracting from condition 8.1 (and any rights the Buyer has under a warranty from the Manufacturer) and subject to condition 8.3 and condition 8.4, if any of the Vehicles do not conform with the warranties in condition 8.2 Euro Commercials shall at its option repair or replace such Vehicles (or the defective part) or refund the price of such Vehicles at the pro rata Contract rate provided that, if Euro Commercials so requests, the Buyer shall return the Vehicles (or the part of such Vehicles which is defective) to Euro Commercials.
8.6 The cost of returning any Vehicle or parts under condition 8.5 shall be borne in accordance with the guidelines from time to time of the Manufacturer which will be made available to the Buyer on request.
8.7 If Euro Commercials complies with condition 8.5 it shall have no further liability for a breach any of the warranties in condition 8.2 in respect of such Vehicles.
9. LIMITATION OF LIABILITY
9.1 The following provisions (along with condition 4.4 and condition 8.7) set out the entire financial liability of Euro Commercials (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
9.1.1 any breach of these conditions, including any deliberate breach of these conditions Euro Commercials or its employees, agents or subcontractors;
9.1.2 any use made or resale by the Buyer of any of the Vehicles; and
9.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these conditions excludes or limits the liability of Euro Commercials:
9.3.1 for death or personal injury caused by Euro Commercials negligence; or
9.3.2 under section 2(3), Consumer Protection Act 1987; or
9.3.3 for any matter which it would be illegal for Euro Commercials to exclude or attempt to exclude its liability; or
9.3.4 for fraud or fraudulent misrepresentation.
9.4 Subject to condition 9.2 and condition 9.3:
9.4.1 Euro Commercials shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract; and
9.4.2 Euro Commercials total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of the Vehicles as set out in the Acknowledgement of Order.
10. ASSIGNMENT
10.1 Euro Commercials may assign the Contract or any part of it to any person, firm or company.
10.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Euro Commercials.
11. FORCE MAJEURE
11.1 Euro Commercials reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Vehicles ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Euro Commercials including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to Euro Commercials to terminate the Contract.
12. GENERAL
12.1 Each right or remedy of Euro Commercials under the Contract is without prejudice to any other right or remedy of Euro Commercials whether under the Contract or not.
12.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
12.3 Failure or delay by Euro Commercials in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
12.4 Any waiver by Euro Commercials of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
12.5 The Parties do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.6 The Contract may only be varied if the variation is in writing and accepted by Euro Commercial in writing which has been signed by a Director.
13. DISPUTES
This 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 laws of England and Wales, and the Parties submit to the exclusive jurisdiction of the courts of England and Wales.
14. COMMUNICATIONS
14.1 All communications between the Parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax.
If this Agreement has been concluded without any face to face contact between us or anyone acting on our respective behalves, you may give notice cancelling this Agreement within 14 days of taking delivery of the Goods, whereupon you must either return them to us or make them available for us to collect at your expense. You must take reasonable care of the Goods and will be responsible for any loss or damage from when they are delivered to you until when they are returned to us. If we have agreed to accept a Part Exchange Vehicle at an agreed value in part payment of the Purchase Price, we have the option of either returning the Part Exchange Vehicle or refunding the Part Exchange Allowance’
WLTP CO₂ emissions
The indicated values were determined according to the prescribed measurement method - Worldwide Harmonised Light Vehicle Test Procedure (WLTP). Figures shown may include options which are not available in the UK. WLTP CO₂ values will be effective from 1st April 2020. Additionally [a] For Battery Electric Vehicles (BEV) figures determined with battery fully charged. These models require mains electricity for charging. [b] For Plug-in Hybrid Electric Vehicle (PHEV) figures determined with the battery fully charged, using a combination of both battery power and fuel. Figures shown are for comparability purposes; only compare with other cars tested to the same technical procedures. Figures may not reflect real life driving results, which will depend upon a number of factors including the starting charge of the battery [a][b], factory fitted options, accessories fitted (post registration), variations in weather, driving styles and vehicle load.Further information about the test used to establish fuel consumption and CO₂ figures can be found at www.mercedes-benz.co.uk/WLTP
NEDC CO₂ emissions
The indicated values were determined according to the prescribed measurement method. These are the "NEDC CO₂ values" according to Art. 2 No. 1 Implementing Regulation (EU) 2017/1153.The figures do not refer to an individual vehicle and are not part of the offer; they are provided solely for the purposes of comparison between different vehicle models. The values vary depending on the chosen optional extras. IMPORTANT: The way a new vehicle’s CO₂ is shown is changing due to a change in the law. Customers should check with a Mercedes-Benz Retailer whether their vehicle will be registered before or after 31st March 2020, as this could have a significant impact on the amount of Vehicle Excise Duty (“VED”) and/or Company Car Benefit in Kind taxation (“BIK”) to be paid. Since 1st January 2019, the energy and fuel consumption figures shown were determined by the Worldwide Harmonised Light Vehicle Test Procedure (“WLTP”). Whilst all new cars on sale have been type-approved according to WLTP, the figures shown are required by law to be the values from the outgoing New European Drive Cycle (NEDC) test, derived through a set formula from the WLTP values, until April 2020. From April 2020, for newly registered vehicles, the actual CO₂ figures from the WLTP test will be published and used for the calculation of VED and BIK. In many cases the WLTP CO₂ figure will be higher than the NEDC figure. This is because the new WLTP test is designed to be more stringent and a more accurate reflection of the vehicle’s efficiency and CO₂ emissions when on the road. The efficiency or performance of the vehicles themselves have not changed. Figures shown are for comparability purposes; only compare with other cars tested to the same technical procedures. Figures may not reflect real life driving results, which will depend upon a number of factors including the starting charge of the battery, factory fitted options, accessories fitted (post registration), variations in weather, driving styles and vehicle load.Further information about the test used to establish fuel consumption and CO₂ figures can be found at www.mercedes-benz.co.uk/WLTP
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