1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions:-
1.1.1 “Authorised Representative” means a commercial manager or director of the Seller or the Buyer where applicable and as the case may be.
1.1.2 “Buyer” means the person who accepts a quotation of the Seller for the sale of the Products and whose Order for the Products is accepted by the Seller.
1.1.3 “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
1.1.4 “Contract” means the contract for the sale and purchase of the Products and/or Services on the Conditions attached.
1.1.5 “Deposit” means any money payable by the Buyer to the Seller as a deposit in respect of Products and/or Services to be provided as specified in these Conditions or the Order.
1.1.6 “Intellectual Property Rights” means any and all of the following in any and all legal jurisdictions around the world: (a) patents, patent applications, patent disclosures and all related continuations, continuations-in-part, divisionals, reissues, re-examinations and renewals, (b) design rights (whether or not registered, (c) trademarks, service marks, logos, trade names, service names, domain names and corporate names, and registrations and applications for registration thereof, (d) copyrights (including rights in computer software), and registrations and applications for registration thereof (e) trade secrets, database rights, rights in undisclosed or Confidential Information including without limitation, software, drawings, electronic data, product or programme descriptions, layouts and renderings, timing and planning schedules, calculation procedures and data, samples, parts and components and systems, models, prototypes, know-how, manufacturing and product processes and techniques, research and development information, and technical data, and (f) other proprietary rights relating to any of the foregoing whatever nature (whether registered or not and including applications to register or rights to apply for registration) which may now or in the future subsist anywhere in the world.
1.1.7 “On-Event Services” means any services provided by the Seller’s personnel away from the Seller’s premises (located currently at Lola House, Huntingdon) including but not limited to services provided at the Buyer’s premises, at testing and motorsport events.
1.1.8 “Order” means the Order submitted by the Buyer in the form approved by the Seller for the sale of the Products and/or the supply of Services.
1.1.9 “Premises” means Lola House, Glebe Road, St Peter’s Road, Huntington, Cambridgeshire PE29 7DS and any other permanent address of the Seller and any vehicle of the Seller in attendance at a race meeting.
1.1.10 “Products” means the products (including any instalment of the Products or any parts for them) and/or Services which the Seller is to supply specified in the Order.
1.1.11 “Racing Authority” means the governing body of the sport for which the products are designed or will be used (if any).
1.1.12 “Seller” means [Lola Cars International Limited (registered in England and Wales under number 3415853)] [Lola Composites Limited (registered in England and Wales under number 01818423 (“Lola”) and any other company which is for the time being a subsidiary or holding company of Lola or a subsidiary of Lola’s holding company.
1.1.13 “Services” means any services specified in the Order including On-Event Services.
1.1.14 “Working Day” means any day excluding Saturday and Sunday and public holidays in the United Kingdom.
1.1.15 “Writing” includes telex, cable, facsimile transmissions, e-mails and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 Unless the context otherwise requires words denoting the singular shall include the plural and vice versa, references to any gender shall include all other genders and references to persons shall include bodies corporate, unincorporated associations and partnerships, in each case whether or not having a separate legal identity.
2. BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall purchase the Products and/or the Services in accordance with any Order submitted by the Buyer which is accepted by the Seller and/or Services in Writing and such sale shall be subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 Quotations are made without commitment and are subject to the Seller sending confirmation of acceptance of an Order received from the Buyer in Writing. A price given in any quotation shall be valid for a period of 14 days, unless otherwise agreed in writing, from the date of issue or the date the quotation is withdrawn if earlier.
2.3 A Deposit paid before a signed Order is submitted by the Buyer and accepted by the Seller shall be held “subject to contract” and “held to the Buyer’s order” until such time as an Order has been submitted and accepted by the Seller and the Seller will then process the Order and the Deposit.
2.4 No variation to these Conditions shall be binding unless agreed in Writing between Authorised Representatives of the Buyer and the Seller.
2.5 The Seller’s personnel or agents are not authorised to make any representations concerning the Products unless confirmed by an Authorised Representative of the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.6 Any advice or recommendation given by the Seller or its personnel or agents to the Buyer or its personnel or agents as to the storage, application or use of the Products which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.7 The descriptions and illustrations contained in catalogues, price lists and other leaflets or descriptive matter produced by the Seller in any medium or form do not form part of the Contract and are not binding on the Seller. Any description or sample given of any Products and/or Services is by way of identification only and does not constitute a sale by description or sample. In entering into the Contract the Seller agrees that it does not rely on and waives any claim for breach of any representation arising from such documentation.
2.8 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller and any such documents do not constitute offers made by the Seller.
3. ORDERS AND SPECIFICATIONS
3.1 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by an Authorised Representative of the Seller.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Products and/or the Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties thereon.
3.4 The quantity, quality and description of and any specification for the Products shall be those set out in the Buyer’s Order.
3.5 If the Products are to be manufactured or any process is to be applied to the Products by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against drawing design and/or loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any Intellectual Property Rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.6 The Seller reserves the right without the prior consent of the Buyer to make any changes in the specification of the Products and/or Services which are required to conform with any applicable statutory or European Union requirements (or any other requirement in any jurisdiction) or sporting or technical regulation (including without limitation governing body regulation) and/or changes introduced by championship or motorsport event organisers, including but not limited to changes to the motorsport event calendar which improve or do not materially affect their quality or performance and in such instances the Seller shall be entitled to charge any costs associated with this to the Buyer.
3.7 The Seller will not without the prior consent in Writing of the Buyer, make any changes in the drawing design and/or specification of the Products and/or Services which will in the Seller’s opinion improve the safety or performance of the Products, but where consent for such purpose is given, the Seller shall be entitled to charge any costs associated with this to the Buyer.
3.8 The Seller shall be entitled to sub-contract any part of the design or manufacture of the Products and to sub-contract the Services with the consent of the Buyer (such consent not to be unreasonable withheld or delayed).
3.9 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of an Authorised Representative of the Seller and on terms that the Deposit and all payments to the date of agreed cancellation are forfeited to the Seller and the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including without limitation the cost of all labour and materials used), damages, charges and expenses incurred or contracted by the Seller.
4. PRICE OF THE GOODS
4.1 The price of the Products and/or the Services shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the Order. All prices quoted are valid for 14 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery of the Products and/or performance of the Services, to adjust the price of the Products and/or the Services to take account of and charge for any increase in the cost of raw materials or other cost of manufacture, third party labour, or services or any currency fluctuations, increases of taxes or duties, or increase in the cost to the Seller in complying with the Contract as a result of changes in legislation or sporting or technical regulation (including without limitation but not limited to changes to the motorsport event calendar), any change in delivery dates, quantities or specifications for the Products and/or Services which is requested by the Buyer, any change in specifications arising from a modification made by the Seller under clause 3.6.and/or clause 3.7 or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices given for Products are given on the basis that delivery is ex works, and where the Seller agrees to deliver the Products otherwise than at the Premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable Value Added Tax, which the Buyer shall be additionally liable to pay to the Seller or where applicable, directly to the appropriate authorities.
4.5 Any quotation or price which the Seller gives in any currency other than pounds sterling is provided for the purpose of guidance only and is not binding on the Seller unless otherwise agreed in Writing by an Authorised Representative of the Seller.
4.6 The price for the Products and/or the Services only covers delivery on the Seller’s Working Days during normal working hours. Upon request provided that reasonable notice is given and in the Seller’s absolute discretion delivery or where agreed, collection of the Products and/or Services may be made or effected at any time outside normal working hours but will be charged for by the Seller as an increase to the price.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Products and/or the Services on or at any time after accepting the Buyer’s Order for the Products and/or the Services.
5.2 A Deposit paid in relation to an accepted Order is non-refundable. The Deposit must be paid in accordance with the payment schedule set out in the Order or if not included in the Order then as set out in Schedule 1 attached. No Order will be accepted or processed until the Deposit has been paid.
5.3 The Buyer shall pay the full price of the Products and/or the Services together with VAT (which shall be chargeable unless the Buyer provides clear evidence it is not chargeable) and all other applicable duties and charges and all other monies due pursuant to these Conditions without deduction or set-off on or before the due dates specified in the Order, or if not specified in the Order as specified in Schedule 1 attached and in all cases prior to delivery or despatch or performance as the case may be. The time of payment of the price shall be of the essence of the Contract.
5.4 Where any costs are incurred under the Contract in respect of the Products and/or the Services after delivery or performance the Buyer shall pay/reimburse all such costs within 15 days of the end of the month in which the Seller’s invoice is issued.
5.5 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to exercise all or any of the following remedies with immediate effect:
5.5.1 to suspend the Seller’s obligations under the Contract; and
5.5.2 to cancel the Contract and forfeit any Deposit and payments the Buyer has paid; and
5.5.3 to sell the Products at the best price readily obtainable and after deducting its reasonable costs (including any charges for any work carried out to the Products, insurance, storage, interest and administration charges incurred) charge the Buyer for any shortfall between the price obtained (after such deductions) and the price due under the Contract; and
5.5.4 to appropriate any payment made by the Buyer for such of the Products (or other products supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported allocation by the Buyer); and
5.5.5 to charge the Buyer compound interest (both before and after any judgement) on the amount unpaid under the Late Payment of Commercial Debs (Interest) Act 1998, until payment in full is made (interest be payable on demand and to accrue daily on the basis of a year of 365 days) together with all costs and expenses incurred by the Seller in the collection of overdue monies; and
5.5.6 where the Seller has not cancelled the Contract, to suspend any further deliveries of the Products and/or the Services to the Buyer and the Seller shall not be bound to deliver the Products and/or the Services within any previously agreed timescale and reserves the right to allocate such Products and/or the resources for the Services to other customers and to deliver such Products and/or Services to the Buyer within as reasonable time period after payment has been made by the Buyer in full (together with all accrued interest) giving priority to customers who have agreed delivery times and have made payments to the Seller on time.
5.6 If for any reason payment by the Buyer is not made in the currency required/agreed under the Contract (the “Contractual Currency”) then the Seller will convert the payment into the Contractual Currency at the rate of exchange prevailing at the bank used by the Seller from time to time. If the rates and cost of exchanging the currency together with any premiums, commissions, bank charges or other consequential costs incurred by the Seller when deducted from the payment made result in the Seller receiving less than full payment in the Contracted Currency then the Seller shall pay the shortfall upon demand.
5.7 In addition to the payments made under the Contract the Seller shall pay on demand all receiving bank charges that are charged to the Seller from time to time in respect of the Contract.
5.8 Each Contract with the Buyer is subject to the Seller being satisfied with the Buyer’s credit status. The Buyer agrees that the Seller may carry out enquiries with a licensed credit reference agency before processing the Buyer’s order. If the Seller in its absolute discretion becomes dissatisfied with the Buyer’s credit status the Seller may require security for payment before continuing with or delivery of any Order.
6.1 Delivery of the Products and/or the Services shall not be made until the Buyer has paid in full to the Seller the price of the Products and/or Services less any agreed discount to which the Buyer is entitled (if any), but without any other deduction or set-off.
6.2 Unless otherwise agreed in Writing by an Authorised Representative of the Seller delivery of the Products and performance of the Services will be made at the Premises.
6.3 Any date or period quoted for delivery of the Products and/or performance of the Services is given in good faith by way of an estimate only and while the Seller shall endeavour to deliver/perform within the period stated the Seller shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by delay in delivery of the Products and/or performance of the Services.
6.4 Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing by an Authorised Representative of the Seller. The Products may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.5 Where the Products are to be packed by the Seller, all such packaging shall be at the Seller’s sole discretion. If the Buyer directs special or different packaging from that included in the price then such additional expenditure on packaging shall be at the Buyer’s expense.
6.6 Where the Products are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.7 If the Seller fails to deliver the Products (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the actual cost incurred by the Buyer (in the cheapest available market) of similar products and/or services to replace those not delivered/performed over the price of the Products and/or the Services.
6.8 If the Buyer requests delivery of the Products and/or Services to be postponed or refuses to accept delivery of the Products in accordance with the terms of the Contract or fails to collect the Products when notified by the Seller that they are available for collection or otherwise fails to give the Seller adequate delivery instructions then:
6.8.1 With immediate effect any risk of damage to or loss of Products will pass to the Buyer;
6.8.2 The Products will be deemed to have been delivered;
6.8.3 The Seller may store the Products until actual delivery and charge the Buyer for all related costs including but not limited to insurance, storage and administrative charges;
6.8.4 The Seller may (in relation to the Products) increase the price according to price lists supplied at the time of actual delivery
6.9 After one calendar month of any postponement, refusal to accept delivery or failure to deliver under the terms of Condition 6.8, the Seller may:
6.9.1 lease the Products upon such terms as the Seller in its absolute discretion thinks fit; or
6.9.2 cancel the Contract and forfeit the Deposit and any other payments made; and
6.9.3 sell the Products at the best price readily obtainable and after deducting its reasonable costs (including any charges for work carried out to the Products, insurance, storage and administrative charges incurred) charge the Buyer for any shortfall below the price under the Contract.
6.10 The Buyer undertakes that at the time of delivery of the Products it will inspect the Products to ensure that they comply with the terms of the Contract (“Acceptance”). The Seller recommends that such inspection should include the examination of the Products by a properly qualified engineer prior to acceptance of the Products. It is the Buyer’s responsibility to arrange for Acceptance of the Products immediately on delivery and to sign an Acceptance receipt if required by the Seller.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Products shall pass to the Buyer:-
7.1.1 in the case of Products to be delivered at the Premises, at the time when the Seller notifies the Buyer that the Products are available for collection; or
7.1.2 in the case of Products to be delivered otherwise than at the Premises, at the time of despatch;
from which point the Seller shall have no further responsibility for loss, damage or deterioration to the Products. For the avoidance of doubt Condition 7.1.2 means that where the Seller agrees to deliver the Products to the Buyer the Seller will have no liability for any such damage incurred up to and including the time of delivery. The Buyer is advised to insure against any such liability.
7.2 Notwithstanding delivery and the passing of risk in the Products, or any other provision of these Conditions, the property in the Products shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Products and all other products agreed to be sold to the Buyer or Services to be performed by the Seller for the Buyer for which payment is then due without deduction or set-off.
7.3 Until such time as the property in the Products passes to the Buyer, the Buyer shall hold the Products as the Seller’s fiduciary agent and bailee, and shall keep the Products separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property.
7.4 Until such time as the property in the Products passes to the Buyer the Seller shall be entitled at any time to require the Buyer to deliver up the Products to the Seller and, if the Buyer fails to do so forthwith, the Buyer hereby irrevocably grants to the Seller the right to immediately enter upon any premises of the Buyer or any third party where the Products are stored to repossess the Products.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) become immediately due and payable.
7.6 If the Buyer provides property to the Seller to provide the Products and/or the Services or for any other purpose:
7.6.1 the risk of damage to or the loss of any such property remains with the Buyer or the owner (as the case may be) and the Seller shall have no responsibility for damage to or deterioration of such property whilst in its possession which shall remain the Buyer’s responsibility to insure;
7.6.2 such property will be returned once the Seller has received payment in full for all Products and/or Services provided to the Buyer.
8. WARRANTIES AND LIABILITY
8.1 Subject to the Conditions set out below the Seller warrants that the Products will correspond with their specification at the time of delivery and be in good condition.
8.2 The above warranty is given by the Seller subject to the following conditions:-
8.2.1 the Seller shall be under no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by the Buyer;
8.2.2 the Seller shall be under no liability under any condition or guarantee if the total price for the Products has not been paid by the due date for payment;
8.3 Subject as expressly provided in these Conditions, and except where the Products are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 The Buyer must satisfy himself as to the suitability of the Products and/or the Services and must rely on the Buyer’s own safety and general testing and regular inspection of the Products.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Products or their failure to correspond with any drawing, design or specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within five days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time not exceeding one month after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Products and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Products had been delivered in accordance with the Contract.
8.6 Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the Products or their failure to meet any drawing, design or specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Products (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Products (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.7 Any Products which are returned to the Seller by the Buyer under this Condition 8 or for any other reason whatsoever must be returned to Lola House, Glebe Road, St Peter’s Road, Huntington, Cambridgeshire PE29 7DS or such other place as the Seller may from time to time direct.
8.8 The Buyer acknowledges that the nature of motorsport activities is such that motor sports vehicles and components have a limited life due to the stress and rigours they endure and the variety of different and extreme conditions in which motorsport vehicles and components are used and many of the parts and components produced by the Seller are non-standard or prototypes. The Buyer further acknowledges that working conditions during a race or any form of competition are extreme and pressured and that for these reasons no warranties or guarantees can be given in respect of the Products or the Services and all such warranties (except regarding title to the Products and those set out in Condition 8.1) and guarantees are excluded to the fullest extent permitted by law.
8.9 Many of the parts and assemblies and components produced by the Seller are non-standard or prototypes. Although the Seller gives basic information recommending rebuilding intervals for various parts and assemblies due to the extreme and varied conditions that prevail in motorsport the specific use that the Buyer makes of Products and/or Services supplied by the Seller and the conditions of use will greatly affect the performance and durability of the Products and consequently no representation or warranty or guarantee is given:
8.9.1 as to the suitability or fitness of the Products or Services for the Buyer’s particular purpose; and
8.9.2 as to the performance, handling, durability, safety, suitability, competitiveness or otherwise of the Products or the Services in motor racing, rallying or any form of competitive motorsport.
8.10 In the case of any Products not manufactured by the Seller and supplied by the Seller or incorporated with the Seller’s Products the Seller is unable to provide any warranty or guarantee.
8.11 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Buyer or the supply of the Services to the Buyer, and the entire liability of the Seller under or in connection with the Contract (except in relation to death or personal injury as aforesaid) shall not exceed the price of the Products.
8.12 The Buyer hereby acknowledges that the Buyer shall be solely responsible for and shall hold the Seller, its officers, employees and agents fully indemnified and harmless against all claims, demands, liabilities, losses, damages, proceedings, costs (including without limitation legal costs) and expenses which may be brought against or incurred by the Seller, its officers, employees or agents as a result of any accident or incident involving the Products or the Services sold to the Buyer (other than for death or personal injury resulting from the negligence of the Seller, its officers, employees or agents).
8.13 The Buyer undertakes to indemnify, keep indemnified and hold harmless the Seller against any loss, costs, claims, liability, expenses or fees the Seller may incur arising directly or indirectly out of any breach of the Contract by the Buyer.
9. USE OF MOTORSPORT VEHICLES
9.1 Motorsport vehicles sold will be homologated by the Seller for race use and are not to be used for road use.
9.2 The Buyer undertakes not to re-homologate any motorsport vehicles or parts of motorsport vehicles purchased from the Seller (including motorsport vehicles or parts purchased from the Seller which have been altered in any way by any person) and that it will not alter, add to, remove, replace or deface the chassis plate in any way whatsoever. In the event that such motorsport vehicle is damaged and requires a replacement chassis plate, the Buyer undertakes to return the motorsport vehicle to the Seller, as soon as reasonably practicable, at the Buyer’s expense, after such damage so that the Seller may, at the Buyer’s expense, replace the chassis plate.
10. SAFETY & GENERAL TESTING
10.1 For the purpose of safety and general testing the Buyer should inspect the Products on delivery, installation, or collection as the case may be and also upon the completion of any Service(s) performed by the Seller. Such inspection should include the examination of the Products and/or the Services by a properly qualified engineer.
10.2 The Buyer understands that motorsport can be hazardous and accordingly all Products consisting of motorsport vehicles should only be driven by qualified and experienced drivers and all such Products (including any parts comprised in the Products) should only be fixed or maintained by appropriately qualified and experienced personnel.
10.3 It is standard practice in motorsport that a properly qualified person (i) examines the motorsport vehicle and any sub-assemblies and/or parts to be fitted to the motorsport vehicle and (ii) carries out preparation of the motorsport vehicle and/or any Products and/or all other products before use. The Buyer undertakes to comply with that practice and undertake to ensure that full and thorough inspection and testing of any Products in accordance with best current practice is carried out before any Products are used and that the Products are utilised in an actual race, rally, demonstration or practice session or test only if they are undamaged and fully serviceable after such inspection and testing.
11. ON EVENT SERVICES
11.1 The On-Event Services shall be limited to those identified in the Order.
11.2 The duties of the Seller’s personnel in undertaking the On-Event Services shall be as specified in Schedule 2 as may be varied in Writing by the Seller in its entire discretion from time to time and such variation will be at additional cost to the Buyer.
11.3 The Buyer may not require the Seller’s personnel to undertake additional duties in respect of On-Event Services without the consent of an Authorised Representative of the Seller in Writing and for the avoidance of doubt in the absence of such consent any additional duties are performed entirely at the Buyer’s risk.
11.4. The Buyer shall at the Buyer’s expense provide a safe working environment for the performance of the On-Event Services (which includes but is not limited to the provision of competent and responsible personnel to work with the Seller’s personnel, the provision of suitable and safe equipment and the implementation of safe systems of work) and otherwise ensure that working conditions for the Seller’s personnel meet all legislative and good practice requirements for the health and safety of the Seller’s personnel whilst carrying out the On-Event Services;
11.5 Where the On-Event Services are to be performed outside the UK the Buyer shall in addition ensure that:
11.5.1 working conditions meet all local legislative health and safety requirements and where possible are at least to the equivalent standard to that required by UK health and safety legislation and good practice;
11.5.2 the Seller’s personnel are fully informed of the applicable health and safety standards and of any legal restrictions or requirements affecting (directly or indirectly) the performance of the On-Event Services;
11.5.3 it provides all resources including suitable equipment, spares and parts (other than any Products) and other such facilities documentation and information (in the English language) reasonably necessary for the carrying out of the On-Event Services;
11.5.4 it obtains suitable and adequate public liability insurance for the Buyer’s personnel and also for the benefit of the Seller and the Seller’s personnel and the Buyer shall on demand show to the Seller the policy of insurance, the premium receipts and certificate of insurance. The Buyer shall hold harmless and indemnify and shall keep indemnified the Seller and the Seller’s personnel against all actions, claims, liabilities,costs and demands arising out of the actions or failure to act of the Buyer, its employees, agents, sub contractors, team members or drivers working with the Seller’s personnel.
11.6 The Buyer shall pay for all accommodation, subsistence and travel costs incurred by the Seller in respect of the performance and supervision of the On-Event Services including payment of a daily allowance to the Seller’s personnel at the rate agreed or as advised by the Seller from time to time (and being equivalent to the amounts usually paid by the Seller to the Seller’s personnel providing services away from the Seller’s premises):
11.6.1 prior to performance of the On-Event Services in accordance with Schedule 2, to the extent such costs are ascertained prior to performance and;
11.6.2 in accordance with Condition 5.4 to the extent such costs are not ascertained prior to performance;
11.7 The Seller may require the Buyer to make and pay for travel and accommodation arrangements directly and to pay subsistence costs directly to the Seller’s personnel and in such circumstances the travel and accommodation arrangements the Buyer makes must be at least equivalent to the standard the Seller usually provides to the Seller’s personnel and any amounts paid for subsistence (including the daily allowance) must be equivalent to the amounts usually allowed by the Seller to the Seller’s personnel.
11.8 The Buyer must also provide and pay for suitable transport for the Seller’s personnel during the Contract to enable the On-Event Services to be efficiently performed.
11.9 Where the On-Event Services are to be performed partly or wholly outside the UK the Buyer shall in addition be responsible at the Buyer’s expense for:
11.9.1 promptly obtaining all relevant licences permits and visas;
11.9.2 the Seller’s reasonable travel costs to and from the UK in respect of home visits required by the Seller to the Seller’s personnel;
11.9.3 the cost of medical insurance (any such cover to include repatriation costs) for the Seller’s personnel (if required by the Seller).
11.10 The Buyer shall comply with its obligations promptly so as not to delay or otherwise interfere with the performance of the On-Event Services.
11.11 For the avoidance of doubt the provision of the On-Event Services may include the provision of the Seller’s personnel to assist in the repair of accident damage during a motorsport event (but does not include any repairs of accident damage following testing, practice or a motorsport event) and the cost of parts and labour supplied by the Seller to repair any such damage is payable at the Seller’s standard rates from time to time in addition to the price of the On-Event Services.
11.12 Where the Seller has agreed to provide personnel to carry out the On-Event Services the Seller shall be entitled to change or substitute the personnel it appoints to carry out the On-Event Services in its discretion.
11.13 The Buyer covenants with the Seller that the Buyer will not either on its own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during its business relationship with the Seller or for a period of 12 months after the date of termination of the business relationship between Buyer and the Seller solicit or entice away or attempt to solicit or entice away any member of staff of the Seller or any associated company of the Seller who has provided Products and/or Services to or for the Buyer at any time during the last 12 months of the Buyer’s business relationship with the Seller.
12. SUSPENSION OF ORDERS
12.1 Subject to the agreement of the Seller in writing the Buyer may suspend all or any part of an Order or the Contract as the case may be by giving the Seller a written notice (“Stop Work Order”) for a maximum period of twenty (20) working days (Monday to Friday inclusive) from and including the date the Stop Work Order is delivered to the Seller and for any other longer period the parties may agree in writing. Upon receipt of the Stop Work Order the Seller shall forthwith comply with its directive to stop work by taking all reasonable steps to minimise the costs relating to the work covered by the Stop Work Order. Before the expiry of the Stop Work Order the Buyer shall write to the Seller informing the Seller that it shall on or prior to expiry either:
12.1.1 cancel the Stop Work Order; or
12.1.2 terminate the Work covered by such Stop Work Order in which instance the Buyer shall pay to the Seller the sums set out in Condition 12.3.
12.2 If a Stop Work Order is cancelled or the period of the Stop Work Order or any extension thereof expires, the Seller shall resume work. If the Stop Work Order results in an increase in the time required for, and/or the cost of, performance of the Contract, and if the Seller asserts a claim for such increase within ninety (90) calendar days after the end of the period of work stoppage then subject to the Seller’s obligation to minimise its costs under these circumstances (in accordance with Condition 12.1), the Buyer shall reimburse the Seller for the direct costs incurred by the Seller as a result of the Stop Work Order. In such circumstances an equitable adjustment shall be made to the delivery schedule and/or price and/or other affected contractual provisions, and the Contract shall be amended in writing accordingly.
12.3 In the event of termination of an Order or a Contract for any reason, the Seller shall be entitled to claim a termination charge consisting of all costs and expenses which have been reasonably and properly incurred by the Seller in connection with the Products and Services at the date of termination and all costs and expenses which shall arise following the date of termination as a direct result of termination of the Order or the Contract as the case may be, which costs shall comprise expenditure on materials, labour, overheads and payments to subcontractors and any other committed costs at the date of termination.
13. FORCE MAJEURE
13.1 The Seller shall not be liable for any failure to deliver the Products or provide the Services arising from circumstances outside the Seller’s reasonable control (hereafter a “Force Majeure Event”)
13.2 Force Majeure Events shall include (but are not limited to) Acts of God, war, threat of war, riot, terrorism, explosion, weather conditions, disease, explosion, flood, tempest, fire or accident, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery, computer hardware or software failure and interruptions to or breakdown of the national or international telecommunications systems, sporting or technical regulation (including without limitation governing body regulation), changes introduced by championship or motorsport event organisers (including but not limited to changes to the motorsport events calendar) delay by suppliers, travel delays or cancellations or breach by the Buyer of its obligations under these Conditions.
13.3 Should the Seller be prevented from delivering the Products or providing the Services pursuant due to a Force Majeure Event it will provide notice in Writing of this fact as soon as reasonably practicable after discovering it.
13.4 In the event that the Seller is prevented from delivering the Products or providing the Services pursuant to condition 12.1, the Seller shall use reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which the Contract may be performed despite the continuance of the Force Majeure Event.
13.5 If the circumstances preventing delivery of the Products or providing the Services are still continuing six months after the Buyer receives the Seller’s notice then either party may give notice in Writing to the other cancelling the Contract with immediate effect.
13.6 If the Contract is cancelled pursuant to Condition 12.5 the Seller will refund any payment which the Buyer has already made on account of the price (subject to deduction of any amount the Seller is entitled to claim from the Buyer under the Contract and deduction of any payment for any Products which have been delivered and/or Services already provided but the Seller will not be liable to compensate the Buyer for any claims, loss or damage caused or expenses incurred by the failure to deliver.
14. INSOLVENCY OR CHANGE IN CREDIT STATUS OR MATERIAL BREACH OF CONTRACT
14.1 In the event that:
14.1.1 The Buyer makes any voluntary arrangement with its creditors or become bankrupt or appoints a receiver, administrative receiver or administrator 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 the Buyer appoints a manager or official receiver over its affairs; or goes into liquidation, unless for the purpose of a solvent reconstruction or amalgamation; or has distress, execution, sequestration levied or issued against any part of its assets or are otherwise unable to pay its debts as they fall due within the meaning of section 123 Insolvency Act 1986; or
14.1.2 The Buyer ceases or threatens to cease to carry on its business or a substantial part of it or the Seller reasonably apprehends that the Seller will do so; or
14.1.3 The Buyer suffers any similar proceedings under foreign law; then, without prejudice to any other right or remedy available to the Seller, the Seller will be entitled to cancel the Contract forthwith or to suspend any further deliveries under the Contract without any liability to the Buyer, and if the Products have been delivered but not paid for then the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and if the Buyer fails to pay immediately the Seller shall be entitled to immediate possession of the Products and to exercise the rights included in Condition 7.4.
14.2 The Seller shall be entitled to terminate the Contract forthwith upon notice in Writing to the Buyer if the Buyer is in material breach of the Contract and where such breach is capable of remedy, the Buyer fails to remedy the same within 21 days of written notice from the Seller requesting remedy or such shorter period as may be reasonable in the circumstances.
14.3 Termination of a Contract shall not release either of the parties from any liability which at the time of termination has already accrued to the other party, nor affect in any way the survival of any other right, duty or obligation of the parties which is expressly stated in these Conditions to survive such termination. Conditions 8,9,10,14,15 and 17 shall survive the expiry of the Contract for any reason.
14.4 Upon termination under this clause 13 all amounts due for payment in respect of any Order for Products and/or Services completed and/or delivered to the Buyer shall be paid by the Buyer to the Seller without deduction or set-off within 5 working days from and including the date of termination. In respect of Products ordered by the Buyer but not yet delivered to the Buyer such amounts shall be due and payable by the Buyer to the Seller without deduction or set-off within 5 working days from and including the date of termination. Where the Seller has incurred any costs relating to unfinished Products or part performed Services or has contracted to incur costs relating to the Products and/or Services at the date of termination, the Seller shall be entitled in addition to be reimbursed such costs without deduction or set-off within 5 working days of a statement being provided to the Buyer by the Seller.
15.1 For the purposes of this condition “Confidential Information” means all information, data or materials received by the Buyer from the Seller which relates to the Seller’s or its associated or group companies’ business, business affairs or technical matters, customers or suppliers, business methods, prices, finances, marketing, research, development, manufacturing processes, market opportunities, computer systems or software, Product information (including without limitation Intellectual Property Rights) new product details, business plans and such other matters as may be reasonably regarded by the disclosing party or its associated or group companies as confidential.
15.2 The Buyer agrees that Confidential Information will be maintained in strict confidence by the Buyer and that the Buyer will only use Confidential Information provided to it exclusively for the purpose authorised in Writing by the Seller. It shall be made accessible to only those personnel of the Buyer who need to be in possession of it insofar as it is required for such purpose, and may be disclosed to third parties only after receipt of the consent of the Seller in Writing and only on the basis that it remains confidential and the third party receiving signs a confidentiality condition on the same terms as this Condition 14.
15.3 All Confidential Information shall remain the property of the Seller save as expressly specified in Writing by an Authorised Representative of the Seller.
15.4 Immediately upon the Seller’s request the Buyer shall (at the direction of the Seller), deliver up to the Seller or destroy all Confidential Information received under this Contract and shall deliver up to the Seller any other property of the Seller in the Buyer’s possession or control (including in each case transcriptions, copies, records and further developments thereof) any time such a request is has been received, and automatically after termination of the Contract. If and to the extent the Seller requests the Buyer to destroy or have destroyed the Confidential Information then following destruction the Buyer shall certify that all such Confidential Information has been destroyed and evidence of compliance will be provided to the Seller on request.
15.5 The obligations of confidence and non-disclosure do not apply to Confidential Information which:
15.5.1 was public knowledge or already known to the Buyer at the time of disclosure;
15.5.2 subsequently becomes public knowledge other than by breach of the Contract;
15.5.3 subsequently comes lawfully into the Buyer’s possession via a third party.
15.6 The Buyer accepts that any breach of this Condition could cause injury to the Seller and that monetary damages would not be an adequate remedy. In the event of a breach of threatened breach by the Buyer the Seller shall be entitled (without prejudice to any other remedy available to it) to injunctive relief in any court of competent jurisdiction and the Buyer shall reimburse the Seller for any costs (including without limitation legal costs), claims, demands or liabilities arising directly or indirectly out of such breach.
16. INTELLECTUAL PROPERTY
16.1 All Intellectual Property Rights in any Product designed or manufactured by the Seller before the date of any Contract entered into by the Seller and the Buyer and any Intellectual Property Rights arising after the date of any such Contract shall belong exclusively to the Seller. No licence is hereby granted by the Seller to the Buyer in respect of any such Intellectual Property Right save for the right of the Buyer to use and/or sell the Products.
16.2 In particular but without limiting the Seller’s Intellectual Property Rights:
16.2.1 The Buyer shall not add any image/decals/logos/trademarks relating to the Seller to the Products or alter any image/decals/logos/trademarks relating to the Seller that are on the Products on delivery without the prior consent in Writing of an Authorised Representative of the Seller; and
16.2.2 The Buyer shall not alter any software included in the Products without the prior consent in Writing of an Authorised Representative of the Seller.
16.3 The Buyer shall not do or authorise any third party to do any act (including without limitation the copying or exploitation of any design or other specification of the Products or the Services) in respect of the Products or the Services which would or might invalidate or be inconsistent with the Intellectual Property Rights of the Seller or any of its associated companies and shall not omit or authorise any third party to omit to do any act in respect of the Products which, by its own omission, would have that effect or character.
16.4 The Buyer shall not use or apply any trade mark, name, logo, copyright, image or other Intellectual Property Rights of the Seller or its sponsors without the prior consent in Writing of an Authorised Representative of the Seller.
Any notice to be served under these Conditions shall be in writing and is deemed to have been properly served if sent or delivered to the party concerned at its address specified in the Order or such other address as that party may from time to time notify in Writing. Any notice may be delivered personally, or by first class recorded delivery post or first class air mail letter or facsimile transmission or by e-mail and shall be deemed to have been served, if sent by first class post, 3 Working Days after posting or if sent by first class air mail then 5 Working Days after posting or if delivered by hand, upon delivery, if by facsimile transmission then upon transmission (subject to a successful delivery receipt) or if by e-mail then 6 hours after the e-mail was sent (subject to the e-mail address being correct and the sender has received a delivery receipt).
18.1 With the prior agreement of the Buyer, not to be unreasonably withheld or delayed, the Seller shall be entitled to refer to the Buyer as the customer of the Seller and refer to the fact that the Buyer has purchased Products and/or Services and in the case of motorsport vehicles to refer to the success of the motorsport vehicle and to use any image of the Products in the Seller’s advertising or promotional material and the Buyer shall use its best endeavours to procure from any third parties including any sponsors any necessary consents or licences in order for the Seller to use such images for such purpose and such rights shall continue beyond the term of the Contract.
18.2 The Buyer may promote the fact that it has purchased Products and/or Services from the Seller but shall not and shall ensure that its personnel, agents, sub-contractors and drivers do not make any adverse comments about the Products and/or the Services or the Seller’s name, business or its personnel to the media or public.
18.3 Any failure by the Seller to exercise or delay exercising any right or remedy shall not constitute a waiver of that right or remedy. Any waiver by the Seller must be in Writing by an Authorised Representative to be effective and any waiver so given by the Seller shall not be considered a waiver of any subsequent breach of the same or any other provision.
18.4 The Buyer undertakes that prior to any sale, transfer, gift or assignment of any motorsport vehicle purchased by the Buyer from the Seller to any third party the Buyer shall procure that the third party enters into a direct agreement with the Seller whereby it agrees directly with the Seller to comply with Conditions 9.1,9.2,15,17.1,17.2,and this Condition 17.4.
18.5 The Buyer confirms that it is contracting with the Seller as principal and not as agent for any other party.
18.6 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the remainder of the provision in question and the remaining Conditions shall not be affected.
18.7 Unless expressly provided in the Contract, no Condition is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Contract.
18.8 The Contract shall be governed by English Law, and all disputes arising under the Contract shall be submitted to the non-exclusive jurisdiction of the English courts.