These terms and conditions form part of the contract between EVM Direct LTD and each customer who places an order with them. Hereinafter EVM Direct LTD will be referred to as the Seller and the customer entering into this contract will hereinafter be referred to as the purchaser.
The order and any allowance in respect of a used motor vehicle offered by the purchaser are subject to acceptance and confirmation by the seller and a Contract will only come into being upon such acceptance and confirmation and the following clauses shall be incorporated in the contract.
If the purchaser shall fail to collect and pay for the goods within 14 of the delivery as provided for in clause 2 (d) then the seller may elect to treat the contract as repudiated by the purchaser and thereupon the purchasers deposit shall be returned less a sum equivalent to any damages, loss or expenses which the seller may have suffered or incurred by reason of the purchasers default and the seller shall be under no further liability to the purchaser.
Notwithstanding delivery and the passing of risk in the goods, or any other provision of these terms and conditions, the property in the goods shall not pass to the purchaser until the total retail price has been discharged in full.
In the event that the seller agrees to purchase a used motor vehicle from the purchaser as partial payment for the price of goods (“Allowance”) or as a direct purchase outside of the sale agreement, such agreements shall be subject to the following conditions;
In the event that any of the warranties in clause 6(a) prove to be untrue or a breach of clause 6(c), the seller shall be entitled to revise the allowance/purchase price to take account of such beach and where there is a reduction in price the purchaser shall be liable to pay the difference between the original and the reduced allowances to ensure payment of the total retail price of the goods in accordance with clause 3 of these terms and conditions.
iii. in the event that the manufacturer is unable to accept the order for the goods then the seller may by notice in writing to the purchaser cancel the contract. Upon such cancellation any deposit paid by the purchaser shall be returned and the seller shall be under no further liability to the purchaser.
Prior to signing the order form the purchaser shall examine the goods to be purchased (if available for inspection) and the purchaser is reminded that the confirmation of satisfactory quality implied by the sale of Goods Act 1979 does not operate in relation to such defects which such an examination ought to reveal. If the goods are sold subject to defects that have been notified by the seller to the purchaser before the signing of the contract, the condition of satisfactory quality referred to above does not operate in relation to those defects.
Where any valid claim in respect of any of the goods which is based on any defect in the quality or conditions of the goods or their failure to meet the specification is notified to the seller, the seller shall be entitled at its sole discretion either to replace or repair the goods (or the part in question) free of charge or to refund the purchaser the price of the goods (or a proportionate part of the price), but the seller shall have no further liability to the purchaser.
Neither party shall be liable to the other or be deemed to be in breach of the contract for reason of any delay in performing or any failure to perform, any of their obligations under this contract, if the delay or failure was due to any cause beyond their seller’s reasonable control.
Where the goods are sold under a consumer transaction (as defined by the consumer Transactions (restriction on statements) Order 1976) the statutory rights of the purchaser are not affected by these Terms and Conditions.
Notwithstanding the provisions of this contract the Purchaser may arrange for a Finance company to purchase the goods from the seller at the price payable hereunder and the goods shall be delivered to or to the order of the Finance company.
Any notice that is given hereunder by the seller may be given in writing or communicated verbally. Notices in writing shall be posted, faxed or emailed to the residence or place of business of the person to whom it is addressed and shall be deemed to have been received, in the case of a facsimile or electronic mail on the day of transmission and in the case of a notice given by post , within two days of posting.
Any waiver by the seller or the purchaser of any breach of contract by the other shall be in writing and shall be considered as a waiver of any subsequent breach of the same or of any other provision. Without prejudice to the generality of the foregoing, failure by either party to enforce or at any time or for any period any one or more of the conditions shall not waiver of them or of the right at any time subsequently to enforce all of them.
Any variation of these Terms & Conditions shall not be effective unless made in writing and signed by an authorised representative of the seller and the purchaser.
If any provisions of these Terms & Conditions are held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the remaining provisions of these Terms & Conditions and the remainder of the provision in question shall not be affected thereby.
This contract shall be governed by the laws of England and the parties shall submit to jurisdiction of the English courts.
No person who is not a party to the contract may in its own right enforce the terms of the contract provided that this clause shall not affect any right or action of any person to whom this contract is lawfully assigned. Where the purchaser is not dealing as a consumer as defined in the Unfair Terms in Consumer Contract Regulations 1999 as amended or replaced from time to time then the following conditions will apply to the contract in additions to conditions 1-18. (” “consumer” means any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession”)
Where the goods to be supplied by the seller are new, then this contract and the provisions for delivery of the goods shall be subject to any terms conditions which the manufacturer/ Concessionaire may lawfully have imposed on the supply of the goods or the resale of such goods by the seller. The seller shall not be liable for any failure or delay in delivering the goods caused by or resulting from the seller’s compliance with the Manufacturer/ Concessionaires terms and conditions. A copy of the current terms and conditions of the Manufacturers / Concessionaires is available for inspection at the seller’s premises.
Except as provided for in these terms and conditions, no order which has been accepted by the seller may be cancelled by the purchaser except with the agreement in writing of the seller and on terms that the purchasers deposit shall be forfeit and further the purchaser shall indemnify the seller in full against all loss (including loss of profit), Costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the seller as a result of the cancellation.
Without prejudice to clause 8 above any claim by the purchaser which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall (whether or not delivered or refused by the purchaser) be notified to the seller with 14 days from date of the collection of the goods or the date a refusal of delivery as the case may be or (where the defect or failure is not apparent upon reasonable inspection). Within a reasonable time after the discovery of the defect or failure. If delivery is not refused, and the purchaser does not notify the seller as above the purchasers shall not be entitled to return or make any claim in respect of the goods and the seller shall have no liability for such defect or failure, the purchaser shall be bound to pay the price as if the goods had been delivered in accordance with the contract.
Except in respect of death or personal injury caused by the sellers negligence, the seller shall not be liable to the purchaser by reason of any representation, or any implied warranty, condition or other terms, or any duty at common law or under the express terms of this contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the seller its employees or agents or otherwise) which arose out of or in connection with the supply of the goods or their resale by the purchaser, except as expressly provided in these terms and conditions.
The seller shall not be liable to the purchaser or be deemed to be in breach of the contact for reason of any delay in performance or any failure to perform, any of the seller’s obligations in respect of the goods, if the delay or failure was due to any cause beyond the seller’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the seller’s reasonable control;
iii. The purchaser ceases, or threatens to cease, to carry on business
The purchaser shall be deemed to be personally liable for the contract even though he shall hold himself out as acting as agent in principle and despite him having purported to sign the order form overleaf in a representative capacity so that their liability shall be joint and several. The purchaser warrants that he has the authority to bind the principal to this contract as agent on its behalf.
In the event of the purchaser or the agent for the purchaser being a limited company, it is agreed that the contract is being entered into at the request of the signatory of the order form (“Guarantor”) and in consideration of the contract being entered into at the request of the guarantor, the guarantor warrants that the purchaser is a properly constituted limited company empowered to enter into the contract and that he had authority to bind the Company to this contract as agent on its behalf and guarantees to the seller (as witnessed by the signature to the order form which he shall be deemed to have signed both as agent for and on behalf of the company and in his capacity of Guarantor) as follows;
That the purchaser will observe and perform all its obligations under this contract and will pay and make good to the seller all losses, costs, damages and expenses of the seller occasioned by the non-performance or non-observance by the purchaser of all the terms and conditions of the contract or any of them but without prejudice to the generality of the foregoing) the non-payment of the whole or any part of the Total Retail Price or any other monies which may become due on delivery of the goods and it is agreed that any neglect or forbearance on the part of the seller in enforcing or giving time to the purchaser for the performance of the terms and conditions of this contract or any of them shall not in any way release or exonerate or in any way affect the liability of the guarantor under this condition and this condition shall not in any way lessen any right of action of the seller in respect of any non-observance, non-performance or other default by the purchaser.