a) “Goods” means any goods (including any instalment of the goods or any parts for them) ordered by the Customer (“the Customer”) from SPAX Performance Limited (“SPAX”).
b) “Conditions” means the terms and conditions of sale set out in this document which apply to the Contract. These conditions supersede any other terms appearing in this or any previous catalogue or elsewhere, and, unless otherwise specifically agreed in writing on SPAX documentation by a Director of SPAX, these conditions of sale override and exclude any other terms stipulated or incorporated or referred to by the Customer, whether in the order or during any negotiations or any course of dealing established between SPAX and the Customer. These conditions apply to each and every Contract made between SPAX and the Customer and constitute the entire understanding between SPAX and the Customer for the Sale of products.
c) “Contract” means the contract between SPAX and the Customer for the sale of goods created by the confirmation of the Customer’s written order by SPAX in accordance with clause 2.
2. SPAX shall not be bound by any order from the Customer unless a Contract has been formed by SPAX accepting the written order to which these Conditions apply.
3. No variation of the Conditions shall be binding unless agreed in writing on SPAX documentation by a Director of SPAX.
4. References to statutory provisions shall be references to any provision as amended or re-enacted.
5. If any provision of these conditions is held to be invalid or unenforceable in whole or in part the validity of the other provisions and the remainder of the provision in question shall not be affected.
6. Save as expressly provided in the Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7. No waiver by SPAX of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
8. Any notice required to be given by either party under the Conditions shall be in writing and addressed to the other party at its registered office or such other address as may have been notified.
9. Neither party shall be liable for any delay in performing any obligations under the Contract if such delay is due to circumstances beyond its reasonable control and such party shall be entitled (subject to giving the other party full particulars of the circumstances and to using its best endeavours to resume full performance without avoidable delay) to a reasonable extension of the time for the performance of such obligations.
10. The Contract constitutes a binding agreement between the parties and no estimates or other correspondence between the parties prior to the date of this contract constitute a legally binding invitation to treat offer order or contract.
11. Prices quoted are for the quantities of Goods stated and do not apply to any order for lesser quantities.
12. If the Customer requires any alteration to the order or variation or modification of specification of the Goods ordered after the order has been accepted by SPAX, an extra charge may be made by SPAX to cover the costs of such alteration variation or modification.
13. No order may be cancelled by the Customer except with SPAX’s written agreement and on terms that the Customer indemnifies SPAX against all losses incurred by SPAX as a result of the cancellation.
14. The Contract shall be governed by English law.
15. Any delivery date(s) quoted by SPAX are approximate only and SPAX shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of essence of the Contract unless previously agreed by SPAX in writing. SPAX may at any time and for any reason alter the estimated delivery dates by giving notice to the Customer.
16. Delivery of the Goods shall be made by SPAX delivering the Goods to a place agreed beforehand. Where the Goods are to be delivered in instalments each delivery shall constitute a separate Contract and failure by SPAX to deliver any one or more of the instalments in accordance with these conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
17. The Goods may be delivered by SPAX in advance of the quoted delivery date upon giving reasonable notice to the Customer.
18. If the Customer fails to take delivery of the Goods or fails to give SPAX adequate delivery instructions in advance of the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control) then (without prejudice to any other right or remedy available to SPAX) SPAX may:
a) store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
b) sell the Goods at the best price readily obtainable and charge the Customer for any shortfall below the price under the Contract including any costs of storage and sales.
19. The Customer is deemed to have accepted the Goods on delivery when the delivery note of SPAX (or SPAX’s carrier) is signed by the Customer.
20. The Customer will be deemed to have accepted the Goods as complying with the contract if notification of non-acceptance is not received in writing by SPAX within 5 working days of delivery of the Goods.
TITLE AND RISK
21. If SPAX fails to deliver the Goods for any reason other than any cause beyond SPAX’s reasonable control or the Customer’s fault, SPAX’s liability shall be limited to the excess (if any) of the cost (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.
22. Risk of damage to or loss of the Goods shall pass to the Customer:
a) in the case of Goods to be delivered, at the time of delivery or, if the Customer fails to take delivery or postpones delivery of the Goods, the time when SPAX has tendered delivery of the Goods.
23. Without prejudice to the foregoing, claims that there has been loss or damage to Goods in transit must be made to SPAX and to any carrier concerned within 3 working days of receipt of the Goods by the Customer and immediately confirmed in writing, otherwise any claim by the Customer will be absolutely barred.
24. All claims recoverable from carriers for non-delivery must be notified to SPAX within 1 working day of delivery or advice note otherwise any claim by the Customer will be absolutely barred.
25. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Conditions, the title in the Goods shall not pass to the Customer until SPAX has received in cash or cleared funds payment in full for the price of the Goods and other charges and all other Goods and charges for which payment is then due.
CHARGES AND PAYMENT
26. Prices quoted in the contract are exclusive of VAT (and all other taxes) and delivery unless specified otherwise. Provided notice in writing is given to the Customer before delivery, SPAX may increase the price to reflect any increase in costs due to factors beyond SPAX’s control.
27. Unless otherwise stated in the Contract (or otherwise agreed in writing) prices are given on the basis that Goods will be collected by the Customer and where SPAX agrees to deliver the Goods the Customer shall be liable to pay SPAX’s charges for transport, packing and insurance.
WARRANTIES AND LIABILTITIES
28. Subject to the conditions set out below SPAX warrants that at the time of delivery the goods will correspond in all material respects with the specifications in catalogues current at the date of the Contract or other specifications agreed in writing between the parties (subject to clause 17) and will be free from defects in material and workmanship. However the specifications of the Goods shall be subject to reasonable variations provided that any alteration to the Goods does not materially reduce performance.
29. Whilst every effort is made to ensure the accuracy of the description of Goods in its catalogues published from time to time no warranty is given and no liability will be accepted for damages resulting from misdescription in any catalogue.
30. SPAX reserves the right to alter designs and/or specifications of the Goods without notice and shall incur no liability whatsoever from any such alterations.
31. SPAX will ensure that all parts manufactured by SPAX are of satisfactory quality (as defined in the Sale and Supply of Goods Act 1994).
32. The above warranty is subject to the following conditions:
a) SPAX shall be under no liability in respect of any defect arising from any specification supplied by the Customer;
b) SPAX shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow instructions (whether oral or in writing), misuse or alteration or repair of the Goods without SPAX’s approval or failure to fit the Goods correctly;
c) SPAX shall be under no liability further than to replace the Goods;
d) The Customer shall indemnify SPAX against any claims by any third Party due to the Customer’s failure to follow instructions, warnings and notices with regard to the application, fitting, use and servicing of the Goods;
e) The warranty shall only apply to matters notified in writing to SPAX within two years of sale to the first end user;
f) The warranty shall only be valid when a claim is accompanied by an official proof of purchase document (or legible copy), stating, as a minimum: name and address of retailer, name of first end user, date of purchase, part number(s), price paid;
g) No warranty is given in respect of SPAX racing or competition products, or products used in competition (e.g. track days).
33. The Customer acknowledges that it does not rely on, and waives any claims for breach of, any representation which is not confirmed in writing and that advice given by SPAX on the application or use of the Goods which is not confirmed in writing is followed entirely at the Customer’s own risk.
34. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or failure to meet the specifications is notified to SPAX in accordance with the Conditions, SPAX shall be entitled to replace the Goods (or the parts in question) or repair the Goods free of charge or refund to the Customer the price of the Goods (or a proportionate part of the price), at SPAX’s sole discretion, but SPAX shall have no further liability to the Customer. For the avoidance of doubt, SPAX shall have no liability with regards to payment of any shipping and handling costs or with regards to fitting, installation, removal or other ancillary costs related to the Goods.
35. Except in respect of death or personal injury caused by negligence of SPAX, SPAX shall not be liable to the Customer for any consequential loss or damage (whether for loss of profit or otherwise which arises out of or in connection with the supply of the Goods or their use by the Customer except as expressly provided in the Conditions).
36. In the event that any exclusion contained in this Contract shall be held to be invalid for any reason and SPAX becomes liable for loss or damage that may not lawfully be limited, such liability shall be limited to an amount equal to five times the value oft the Goods supplied under the relevant Contract.
37. Subject to clause 46 below, if a claim is made against the Customer that the Goods infringe the intellectual property rights of any other person then unless the claim arises from the use of any drawing, design or specification supplied by the Customer , SPAX shall indemnify the Customer against all losses and expenses incurred by the Customer in connection with the claim provided that:
a) SPAX is given full control of any proceedings or negotiations in connection with such claim;
b) the Customer gives SPAX all reasonable assistance with any proceedings or negotiations;
c) the Customer does not pay or accept any such claim, or compromise any such proceedings without the consent of SPAX (which shall not be unreasonably withheld);
d) the Customer does nothing which would or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement (and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
e) SPAX shall be entitled to the benefit of (and the Customer shall accordingly account to SPAX for) all damages and costs (if any) awarded in favour of the Customer which are payable by or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
f) Without prejudice to any duty of the Customer at common law, SPAX shall be entitled to require the Customer to take such steps as SPAX may reasonably require to mitigate or reduce any such loss or expenses for which SPAX is liable under this clause (the limitation of liability in clauses 38 and 39 shall not apply to this clause 43).
38. If a claim is made against SPAX that the Goods infringe the intellectual property rights of any other person then where the claim arises from the use of any drawing, design or specification supplied by the Customer. The Customer shall indemnify SPAX against all losses and expenses incurred by SPAX in connection with the claim.
39. The Customer undertakes that he will not remove change or in any way interfere with packaging, trade marks or other marks and labels supplied with or relating to Goods intended for re-sale in the form in which they are supplied by SPAX.