Terms & Conditions
VINDICO UK LTD
General Terms and Conditions of Business
1. Interpretation
1.1. Definitions
Company means Vindico UK Ltd, registered number 6969381, having its registered address at Unit 16, Becklands Park Industrial Estate, Market Weighton, York, YO43 3GA, England Customer means the person contracting for Services and named as the consignee
on the Pro-Forma Invoice. Contract means these Terms and Conditions together with the Pro-Forma Invoice Pro-Forma Invoice means the document issued by the Company containing the specifics of the Services. Services means the sale of Goods by the Company to the Customer and/or the exportation of Goods. Goods means the items sold by the Company to the Customer and/or the items to which any business under this Contract relates.
2. The Contract
2.1. This Contract shall commence on the date determined by clause 2.4 below and shall continue until such time as the Goods have been delivered to the Customer and all sums due under the Contract have been paid.
2.2. Once the Services have been agreed by the parties, the Company will provide the Customer with a copy of the Pro-Forma Invoice.
2.3. It is the Customer's responsibility to ensure the details contained in the Pro-Forma Invoice are true and correct. The Customer must advise the Company of any errors or omissions in the Pro-Forma Invoice within 24 hours of receipt, otherwise the Customer will be deemed to have accepted the Pro-Forma Invoice.
2.4. The Contract between the Company and the Customer shall commence upon:
2.4.1. the Pro-Forma Invoice has been accepted as set out in clause 2.3 above; and
2.4.2. payment by the Customer to the Company of the sum due under either clause 3.1 or clause 3.2.1 below as the case may be.
2.5. Notwithstanding the above, where the Company is acting as a broker for the seller, the issue of the Pro-Forma Invoice does not constitute reservation of the items listed. In such cases where payment is received from the Customer as set out at clause 3 below and the items have already been sold by the seller, or otherwise become unavailable, then a full refund will be given.
3. Payment
3.1. The Customer is to pay to the Company the total cost for the Services as set out in the Pro-Forma Invoice without set-off or deduction within 3 days of accepting the Pro-Forma Invoice. Payment will only be deemed to have been made when the Company is in receipt of cleared funds from the Customer.
3.2. With the prior written consent of the Company, the Customer may make payment by:
3.2.1. the immediate payment of 25% of the total cost for the Services, which will be held as a non-refundable deposit; and
3.2.2. payment of the balance of the total cost for the Services without set-off or deduction, together with any other charges, costs, and expenses due to the Company within 3 days of the written demand for payment by the Company.
3.3. Time is of the essence of payment of all sums payable by the Customer to the Company.
3.4. The Late Payment of Commercial Debts (Interest) Act 1998, as amended, shall apply to all sums due from the Customer.
3.5. The Company has a general lien on all Goods subject to the Services, and all documents relating to those Goods in its possession, custody or control for all sums due at any time to the Company from the Customer. All charges and costs (including but not limited to storage charges) associated with the Company exercising its right under this clause will be for the Customer's account.
3.6. The Company shall be entitled, on 14 days notice in writing to the Customer, to sell or dispose of or deal with such Goods and/or documents as agent for the Customer, and apply the proceeds towards the payment of any sums outstanding. All charges and costs associated with the Company exercising its rights under this clause will be for the Customer's account.
3.7. Upon accounting to the Customer for any balance remaining after payment of any sum due to the Company, and for the cost of sale and/or disposal and/or dealing, the Company shall be discharged of any liability whatsoever in respect of the Goods and documents.
4. Title and risk
4.1. Risk in the Goods shall pass to the Customer upon delivery, deemed delivery or when the Customer makes payment in accordance with clause 3.1 or clause
3.2.1 above, whichever is the earliest.
4.2. Title to the Goods shall not pass to the Customer until the Company receives payment in full (in cash or cleared funds) for the Goods and all other sums that are, or that become, due to the Company from the Customer in relation to the Goods.
4.3. Until title to the Goods has passed to the Customer, the Customer shall:
4.3.1. store those Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property;
4.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to those Goods; and
4.3.3. maintain those Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks with an insurer that is reasonably acceptable to the Company. The Customer shall obtain an endorsement of the Company's interest in the Goods on its insurance policy, subject to the insurer being willing to make the endorsement. On request the Customer shall allow the Company to inspect those Goods and the insurance policy.
4.4. Should the Customer fail to take delivery of the Goods at the appointed time and place when and where the Company is entitled to deliver, the Company shall be entitled to store the Goods at the sole risk of the Customer, whereupon the Company's liability in respect of the Goods shall cease. The Company's liability, if any, in relation to such storage, shall be governed by these Terms and Conditions of Business. All costs incurred by the Company as a result of failure to take delivery shall be deemed as freight earned, and such costs shall, upon demand, be paid by the Customer.
5. The Company's Warranty
5.1. Unless otherwise specified in writing, Goods are sold without guarantee or warranty, the Customer having had every opportunity of inspection and examination including a road test of sufficient length prior to entering the contract. Unless otherwise specified in writing all recorded specifications, including but not limited to milometer readings, are not warranted by the Company.
6. The Customer
6.1. The Customer shall save harmless and keep the Company indemnified from and
against:
6.1.1. all liability, loss, damage, costs and expenses whatsoever (including, without prejudice to the generality of the foregoing, demurrage and any other costs relating to shipping and/or port charges; all duties, taxes, imposts, levies, deposits, any outlays of whatsoever nature
levied by any authority in relation to the Goods) arising out of the Company acting in accordance with the Customer's instructions, or arising from the negligence of the Customer.
6.1.2. all claims, costs and demands whatsoever and by whomsoever made or preferred, in excess of the liability of the Company under these Terms and Conditions of Business, regardless of whether such claims, costs, and/or demands arise from, or in connection with, the breach of contract, negligence or breach of duty by the Company, its servants, sub-contractors or agents.
6.1.3. any claim of a general average nature which may be made on the Company.
7. Liability and Limitation
7.1. This clause sets out the entire financial liability of the Company (including any liability for the acts or omissions of the Company's servants, sub-contractors or agents) for:
7.1.1. any breach of this Contract however arising;
7.1.2. any use made or resale of the Goods by the Customer; and
7.1.3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
7.2. Nothing in this agreement shall limit or exclude the Company from liability for:
7.2.1. death or personal injury resulting from negligence; or
7.2.2. fraud or fraudulent misrepresentation; or
7.2.3. breach of the terms implied by section 12 of the Sale of Goods Act
1979; or
7.3. Without prejudice to clause 7.2, the Company shall not under any circumstances whatever be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
7.3.1. loss of profit;
7.3.2. loss of goodwill;
7.3.3. loss of reputation;
7.3.4. loss of business;
7.3.5. loss of business opportunity;
7.3.6. loss of anticipated saving;
7.3.7. special, indirect or consequential damage; and/or
7.3.8. interest, penalties and legal costs suffered by the Customer that arises under or in connection with this Contract.
7.4. Without prejudice to clause 7.2 or clause 7.3 above, the Company's total liability arising under or in connection with this Contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall not exceed:
7.4.1. in the case of loss or damage, the value of any loss or damage;
7.4.2. in all other cases the value of the subject Goods of the relevant transaction between the Company and the Customer.
7.5. Any claim by the Customer against the Company arising in respect of the Services shall be made in writing and notified to the Company within 14 days of the date on which the Customer became aware, or ought reasonably to have become aware, of any event or occurrence alleged to give rise to such a claim. Any claim not made and notified to the Company as aforesaid shall be deemed to be waived and absolutely barred, save where the Customer can show that it was otherwise impossible for him to comply with the time limit specified in this clause 7.5, and that he has made the claim as soon as it was reasonably practicable for the Customer to do so.
7.6. Notwithstanding the provisions of clause 7.5 above, the Company shall in any event be discharged from all liability whatsoever and howsoever arising in respect of the Service, unless suit be brought and written notice thereof is given to the Company within 9 months of the event or occurrence alleged to have given rise to the claim against the Company.
8. Force Majeure Event
8.1. Force Majeure means any circumstance not in a party's reasonable control including, without limitation, acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination, or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; and [any labour or trade dispute, strikes, industrial action or lockouts; and interruption or failure of utility service.
8.2. if either party is prevented, hindered or delayed in or from performing any of its obligations under this Contract by a Force Majeure Event, the party so affected shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
9. Severance
9.1. If any provision or part-provision of this 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 that 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 9 shall not affect the validity and enforceability of the rest of this Contract.
9.2. If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend that 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.
10. Variation
10.1. No variation of this agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
11. Entire agreement
11.1. This 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.
11.2. Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies for, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.
11.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
11.4. Nothing in this clause 11 shall limit or exclude any liability for fraud.
12. Third party rights
12.1. This Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
13. Counterparts
13.1. This Contract may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Contract.
14. Governing law
14.1. This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
15. Jurisdiction
15.1. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.