1.1 The following definitions shall have the following meanings:
“the Customer” means the person, firm or company purchasing goods and/or services from VELUBA Ltd.; that trades as VELUBA.
“Force Majeure Event” means an event beyond the reasonable control of VELUBA Ltd, including strikes, lock-outs or other industrial disputes (whether involving the workforce of VELUBA Ltd or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, inability to procure materials or articles except at increased prices or default of agents, suppliers or subcontractors;
“the Goods” mean the goods that VELUBA Ltd is to supply to the Customer in accordance with these terms;
“Intellectual Property Rights” means any patent, right to an invention, copyright and related rights, trade mark, business name, design right, domain name, goodwill, the right to sue for passing off, design right, database right, right to use and protect the confidentiality of confidential information (including without limitation know-how and trade secrets) and all other types of intellectual property rights, registered or unregistered, including all applications and the right to apply for renewals or extensions of, and right to claim priority from, such rights and all similar rights or forms of protection existing or which will exist now or in the future in any country;
“VELUBA Ltd” means VELUBA Limited, KAD House, Portsmouth Road, Esher, Surrey, KT10 9AD;
“these terms” means these terms and conditions as amended from time to time in accordance with clause 2.2;
“Working Day” means a day other than a Saturday, Sunday or public holiday in England when clearing banks in London are open for business.
1.2 The rules of interpretation in this clause 1 apply in these terms.
1.3 Clause headings do not affect the interpretation of these terms.
1.4 Except where a contrary intention appears, a reference to a clause is a reference to a clause of these terms.
1.5 Unless otherwise specified, a reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 A person includes a corporate or unincorporated body.
1.7 Writing or written includes faxes, but not email.
1.8 Any obligation in these terms on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.9 Unless the context otherwise requires, (a) words in the singular shall include the plural and in the plural shall include the singular and (b) a reference to one gender shall include a reference to the other genders.
1.10 Any words following the terms “including”, “include”, “in particular” or “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Basis of the Sale
2.1 VELUBA Ltd contracts on these terms only, and acceptance by VELUBA Ltd of any order from a Customer shall be upon these terms and shall override any other terms and conditions stipulated or incorporated by the Customer in its order or in any negotiations, or which are implied by trade, custom, practice or course of dealing.
2.2 Variations or representations will only be binding on VELUBA Ltd if confirmed in writing by an authorised officer of VELUBA Ltd.
2.3 Any quotation given by VELUBA Ltd shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
3. The Goods
3.1 All descriptions and illustrations (a) contained in VELUBA Limited’s website, catalogue, price list and advertisements or (b) otherwise communicated to the Customer are intended to present merely a general idea of the Goods described and shall not form part of the contract or have any contractual force.
3.2 Ltd reserves the right to make substitutions and modifications to the specifications of the Goods, provided that this does not materially affect their performance.
4.1 Subject to clause 4.4 the price of the Goods is as stated on the Quotation and is net of Value Added Tax at the appropriate rate.
4.2 Where carriage, insurance, storage or other charges are shown separately from the price of Goods, they are nevertheless payable by the Customer at the same time as if they form part of the price and shall be treated as such for the purposes of these terms.
4.3 VELUBA Ltd shall invoice the Customer in respect of:
4.3.1 Goods, on Order at 50% “NON REFUNDABLE” deposit with the balance to have been received in cleared funds prior to collection of the goods.
4.4 Prices are subject to alteration by VELUBA Ltd (to reflect changes in costs of raw materials, labour, shipping, customs duty, transport, etc) to those ruling at date of despatch save where a fixed price has been agreed. The Customer will be notified as soon as possible of such alteration. Where the alteration exceeds 10% of the net price of the Goods, the Customer shall have the right to cancel his order, provided such cancellation is received by VELUBA Ltd within seven days of the date of notification.
5.1 Without prejudice to the right of cancellation and subject to clause 4.4, should the Customer cancel the contract of sale they will immediately forfeit their deposit and all rights to the products detailed in the contract of sale.
6.1 On acceptance of a quotation a “NON REFUNDABLE” 50% deposit payment must be paid immediately against a “Proforma Invoice”.
6.2 The final balance payment of 50% must have been received in cleared funds before the goods can be collected by the Customer.
7.1 VELUBA Limited do not deliver VELUBA tricycles and or parts. All goods must be collected by the purchaser from our Liss showrooms at the address stated on the quotation. All goods must have been fully paid for and received in cleared funds before the goods can be collected and removed by the Customer.
8. Warranties (sale of goods)
8.1 VELUBA Ltd warrants that on collection of the Goods by the customer are, and for periods as clearly detailed in the warranty, they will remain, (a) of satisfactory quality (within the meaning of the Sale of Goods Act 1979), (b) free from any material defect in design, workmanship and materials and (c) correspond with any agreed written specification, but the Supplier’s liabilities under this warranty shall be limited to making available free of charge the labour and materials required to make good any such defects or (at VELUBA Ltd’s option) replacing any defective Goods. VELUBA Ltd’s liability under this warranty is also conditional upon the following and these terms shall apply to any repaired or replacement Goods supplied by VELUBA Ltd under this clause:
8.1.1 written notice of the defect being given to VELUBA Ltd within 7 days after discovery of the same and in any event within the Warranty Period;
8.1.2 the Goods having been properly maintained, stored and used by the Customer prior to the defect occurring;
8.1.3 the defect not arising due to the Customer’s failure to follow VELUBA Ltd’s oral or written instructions as to the storage, use or maintenance of the Goods or (if there are none) good trade practice;
8.1.4 the defect not arising as a result of fair wear and tear, wilful damage or negligence;
8.1.5 the Goods not having been subjected to any repair (without VELUBA Ltd’s consent), modification or abnormal or improper use; and
8.1.6 the Goods having been returned at VELUBA Ltd’s request, but at the Customer’s expense, for inspection.
8.2 VELUBA Ltd’s liability under this warranty shall be limited to making available free of charge the labour and materials required to make good any failure with reasonable skill or care. It is the Customer’s responsibility to return the goods to our “Liss” showrooms at their own expense and when the works have been completed collect the goods. VELUBA Ltd’s liability is also conditional upon:
8.2.1 written notice of the defect being given to VELUBA Ltd within 7 days after discovery of the same and in any event within one month after the date of performance of completion of the Services; and
8.2.2 any goods upon which the Services were performed being properly stored and not having been subject to improper use or modification.
8.3 The warranties contained in clauses 8.1 and 8.2 are given in lieu of and shall be deemed to exclude all other warranties and conditions whether express or implied whether arising by common law, statute or otherwise, other than that relating to title to the Goods.
9. Limitation of Liability and Customer’s obligations
9.1 Save as provided under the Unfair Contract Terms Act 1977 and save as mentioned in clause 8, VELUBA Ltd’s liability for any loss, injury or damage of any nature whatsoever, whether direct or consequential, arising out of or in connection with any Goods supplied or installed by VELUBA Ltd or resulting from the use thereof and whether arising out of a breach of implied or express term warranty or condition shall not exceed the cost to the Customer of replacing or repairing the Goods provided that VELUBA Ltd is afforded a reasonable opportunity of replacing or repairing the Goods. Save as provided under the Unfair Contract Terms Act 1977, VELUBA Ltd shall under no circumstances whatever be liable to the Customer for any loss of profit, any indirect loss or consequential loss arising in connection with these terms. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these terms.
10. Indemnity from the Customer
10.1 The Customer hereby indemnifies and holds harmless VELUBA Ltd against:
10.1.1 all claims relating to the Goods sold to the Customer in respect of any loss damage or expense sustained by any third party, save only in respect of death or personal injury caused by the negligence of VELUBA Ltd or any of its employees or agents; and
10.1.2 any costs or losses incurred by the VELUBA Ltd directly or indirectly due to the Customer Default.
11. Force Majeure
11.1 VELUBA Ltd shall bear no liability for loss, damage or delay howsoever arising by a Force Majeure Event, and in these circumstances may suspend or cancel the whole or part of any delivery. VELUBA Ltd shall endeavour to notify the Customer as quickly as reasonably possible if a Force Majeure Event occurs.
11.2 If the Force Majeure Event prevents VELUBA Ltd from providing any of the Goods for more than four weeks, VELUBA Ltd shall, without limiting its other rights or remedies, have the right to terminate this contract immediately by giving written notice to the Customer.
12.1 Without prejudice to any other rights it may have and without prejudice to the provisions of clause 8, VELUBA Ltd may, by notice to the Customer, terminate any contract between the Customer and VELUBA Ltd forthwith and/or immediately recover from the Customer all sums due from the Customer under any contract with VELUBA Ltd (notwithstanding any period of credit which may have been allowed) together with any accrued interest and other legitimate charges and any loss caused to VELUBA Ltd as a result of any termination if:
12.1.1 termination will be without prejudice to the parties’ accrued rights; and
12.1.2 any clauses in these terms that expressly or by implication continue to have effect after termination shall continue in full force and effect.
13.1 If at any time any question, dispute or difference whatsoever shall arise between VELUBA Ltd and the Customer in relating to or in connection with the contract, either of them shall give to the other notice in writing that it requires such question, dispute or difference to be referred to the arbitration of a person to be agreed upon or, failing agreement within 14 days after the date of such notice, of some person to be appointed on the application of either party by the President for the time being of the Law Society pursuant to the Arbitration Act 1996.
14.1 No waiver by VELUBA Ltd of any breach of contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision of the contract.
14.2 The parties agree to be bound by these terms, which they consider to be reasonable. If any clause of these terms is held by any Court or competent authority as invalid or unenforceable in whole or in part the validity of the remainder of these terms and of the remainder of the provisions in question shall not be affected thereby.
14.3 The Customer shall not assign or transfer any contract to which these terms apply nor the benefit thereof to any person whatsoever.
14.4 These terms constitute the entire agreement and understanding of the parties and supersede any previous agreement or understanding between them relating to the subject matter of these terms. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of VELUBA Ltd that is not set out in these terms.
14.5 Any notice given under these terms must be in writing and delivered to the recipient at the address of (a) its registered office (in the case of a company) or (b) its principal place of business (in any other case), or at such other address as has been notified to the sender previously in writing for the purpose of this clause.
14.6 A notice given under these terms shall be validly served if sent by email.
14.7 A person who is not a party to these terms may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
14.8 These terms shall be governed by and construed in accordance with the laws of England and each of the parties hereto submits to the exclusive jurisdiction of the English Courts as regards any claim or matter arising under these terms.