Terms and Conditions
EV Sales LTD – TERMS & CONDITIONS OF SALE
Conditions of Business
We offer to sell goods and perform services, and accept orders for such goods and services only on the basis of the following conditions. These conditions shall therefore be deemed to be incorporated in any agreement between a customer and ourselves. We request that our customers read the conditions and draw their attention in particular to condition 14, 16 and 17 under which we disclaim certain obligations and responsibilities and exclude certain liabilities. And to conditions 5 to 12 under which we retain title to goods supplied by us and prohibit their resale until all sums due to us from the customer have been paid.
All references hereafter to “EV Sales” shall refer to the trading company of EV Sales Limited, its Holding Companies, its agents Representatives or its Assignees. All references hereafter to “The Customer” shall refer to the person persons or company enquiring or placing orders with EV Sales Limited.
Acceptance of Terms & Conditions
The placing of an order with EV Sales shall be deemed acceptance by The Customer of these Terms & Conditions.
Headnotes in these Terms & Conditions are for convenience only and shall not affect the construction of any clause.
1. Application of Conditions
(a) These conditions shall apply to all agreements for the sale or supply of goods or services by EV Sales to the Customer to the exclusion of all other terms and conditions, including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation of order receipt or similar document.
(b) All orders for goods or services shall be deemed to be an offer by the Customer to purchase goods or services from EV Sales pursuant to these conditions. (c) The acceptance or delivery of goods sold or supplied by EV Sales, or the delivery of goods to EV Sales, or the acceptance of work performed by EV Sales as the case may be shall in each case be deemed to be conclusive evidence of the Customer’s acceptance of these conditions.
(d) Any purported variation of or addition to these Conditions (including any special terms or conditions agreed between EV Sales and the Customer) shall be of no effect unless such variation or addition has been expressly agreed in writing by a Director of EV Sales.
(a) Prices and charges are quoted exclusive of Value Added Tax and any other taxes, levies or duties. (b) Unless otherwise agreed by EV Sales in writing all charges of whatsoever nature relating to the carriage, collection or delivery of goods, together with all taxes, levies and duties, shall be paid by the Customer in addition to the price or charge originally quoted or agreed. (c) If, after the date of any quotation, there is an increase in the cost to EV Sales of labour (including National Insurance or other contributions), raw materials, fuel, electricity or transport
including any such increase caused by a fluctuation in exchange rates the Customer shall pay in addition to the price or charge originally quoted or agreed, an amount representing EV Sales estimate of the increase cost to EV Sales of executing the order in question at the actual date of execution.
3. Payment by Customer (a) Payment for goods sold or supplied by EV Sales or for services performed by EV Sales shall be made by the Customer in accordance with these Conditions and any instructions appearing on EV Sales invoices. (b) Notwithstanding that pursuant to Conditions 7 to 12 EV Sales have retained property in goods sold or supplied by EV Sales, and unless otherwise expressly agreed by in writing, the price for goods sold or supplied by EV Sales or for services performed by EV Sales shall become payable on dispatch by EV Sales of such goods or on completion of such services and the time for payment shall be of the essence of the agreement between EV Sales and the Customer. (c) If the Customer fails to pay any sums payable to EV Sales by the date upon which they become due then without prejudice to any other remedies available to EV Sales, EV Sales shall be entitled:
i) To charge contractual interest on all such unpaid sums, from the date when payment becomes due until the date of payment at the rate of 2.5% per month or part month and such interest shall accrue at such rate after as well as before any judgement until paid in full and cleared and
ii) to withhold further performance of any obligations under any agreement between ourselves and the Customer until all such unpaid sums together with interest thereon have been paid in full.
(d) Any reference in these Conditions to prices charges or sums being due payable or owing to EV Sales includes:
i) Any such prices charges or sums which would be so due payable or owing but for EV Sales having allowed credit to the Customer and ii) Any such prices charges or sums the benefits of which have been assigned by EV Sales to a third party.
(e) Those signing the Credit Application Form on behalf of limited companies do so as guarantor and irrevocably undertake to guarantee the payment of all monies owing to us by the relevant limited company if we believe that the limited company cannot meet its obligations. If the limited company goes into receivership, liquidation or administration the guarantor will pay to the receiver, liquidator or administrator, as the case may be, such sum as will enable him or her to pay all monies owed to us by the limited company.
4. Warranty of Solvency Etc.
(a) The Customer acknowledges that before entering into any agreement with EV Sales he has made to EV Sales the express representations set out in paragraph 2 of this Condition, and the Customer further acknowledges that by entering into an agreement with EV Sales he warrants that such representations are true and will remain true throughout the duration of the agreement.
(b) The representations and warranties referred to in paragraph 1 of this Condition are as follows:
i) That the Customer is solvent ii) In the case of an individual or a firm that
a) during the period commencing 5 years prior to the agreement neither the Customer nor where the Customer is a firm any member of that firm has made with or proposed to any of his creditors any composition in satisfaction of his debts or scheme of arrangement of his affairs and
b) during the period commencing 5 years prior to the agreement neither the Customer nor where the Customer is a firm any member of that firm has applied to any court for an interim order under Part VIII of the Insolvency Act 1986 and c) if the agreement is governed by English Law during the period commencing 5 years prior to the agreement neither the Customer nor where the customer is a firm any member of that firm has been subject to a bankruptcy order or has at any time been insolvent or d) if the agreement is governed by Scottish Law during the period commencing 5 years prior to the agreement neither the Customer nor where the customer is a firm any member of that firm has been subject to a bankruptcy order been adjudged bankrupt committed an act of bankruptcy or become apparently insolvent.
iii) In the case of a company that: a) during the period commencing 5 years prior to the agreement no petition has been presented to any court either for the Customer or any other company which during that period was a holding company or subsidiary of the Customer, to be wound up or for an administration order to be made in respect of the Customer or any such holding company or subsidiary and b) during the period commencing 5 years prior to the agreement no resolution to wind the Customer up voluntarily has been passed and no notice of any meeting to consider any such resolution has been given and c) during the period commencing 5 years prior to the agreement no composition in satisfaction of the Customer’s debts or scheme of arrangement of the Customer’s affairs has been proposed or made and d) no circumstances exist as a result of which any person or court is entitled to appoint a receiver or administrative receiver of the whole or any part of the Customer’s property and e) none of the circumstances set out in section 122 of the Insolvency Act 1986 as a result of which the Customer may be liable to be wound up by the Court exist. f) In the event that any of the representatives and warranties set out in paragraph 2 of this condition are or become untrue or are broken by the Customer:
i) EV Sales shall be immediately entitled to terminate without notice any agreement between EV Sales and the Customer ii) all sums owed to EV Sales by the Customer shall immediately become due.
For the purposes of these Conditions delivery of goods to the Customer shall be deemed to take place at the time the Customer collects the goods from EV Sales premises or if EV Sales have agreed to deliver or arrange for the delivery of the goods to some other place at the time the goods are delivered at such other agreed place, or failing such collection or agreement, at the time the goods are delivered at the Customer’s place of business.
Where any delivery time is mentioned it is hereby accepted that this is an indication in good faith and is not guaranteed. Delivery time shall not be of the essence. EV Sales shall not be held responsible for late delivery by reason of industrial action, wars, fires, floods or any natural disasters or any circumstance whatsoever beyond their control.
Subject to the provision of Clause 19, and irrespective of whom at any time has the property in any goods sold or supplied by EV Sales to the Customer, the risk of any loss or damage to or deterioration of all such goods shall be the Customer’s upon delivery.
7. Title to goods etc.
a) All goods sold or supplied by EV Sales to the Customer shall remain EV Sales sole and absolute property as legal and beneficial owner until such time as the Customer shall have paid to EV Sales:
i) The agreed price for such goods and ii) All other sums due from the Customer to EV Sales, whether arising under any agreement between the Customer and EV Sales or otherwise.
8. Additions for Statutory Taxation
EV Sales shall be entitled to charge additionally any statutory taxation to the Customer. (For example Value Added Tax).
9. Cessation of rights of possession
In the event that any sum payable by the Customer to EV Sales is not paid on the due date all rights of the Customer to possession of EV Sales goods shall cease.
10. Amalgamated goods
(a) In any case where the Customer’s right to possession of EV Sales goods ceases EV Sales shall be entitled to possession both of EV Sales goods and any amalgamated goods, but in the case of amalgamated goods, such entitlement shall only be for the purpose of detaching or separating EV Sales goods from the amalgamated goods. (b) In any case where EV Sales are entitled to possession of EV Sales goods or any amalgamated goods, the Customer will upon being so required by EV Sales:
i) immediately refrain from using EV Sales goods and ii) immediately and at his own expense and without damaging EV Sales goods detach or separate EV Sales goods from any amalgamated goods, and until such detachment or separation has been completed refrain from using the goods to or into which EV Sales goods have been attached or incorporated
11. Rights of access
For the purpose of obtaining possession of EV Sales goods, EV Sales servants or agents may enter upon any land or premises owned, occupied or controlled by the Customer where EV Sales goods are or are reasonably suspected of being situated and may remove EV Sales goods from such land or premises.
12. Property in the goods
Until property in all goods sold or supplied by EV Sales has passed to the Customer in accordance with Clause 7a the customer shall not offer for sale sell or purport to sell EV Sales goods.
13. General Lien
(a) In the event that payment in full of all such sums is not made, within 30 days of the occurrence of any of the circumstances referred to in the preceding paragraph of this Clause, EV Sales shall be entitled to sell the goods the subject of EV Sales general lien and to apply the proceeds of sale in reduction or elimination of such sums. Any surplus proceeds remaining after such application shall be paid by EV Sales to the Customer.
14. Delivery Times and Dates
(a) Times and dates quoted by EV Sales for the delivery of goods to, or the performance of services, are to be treated as estimates only and not as binding in any way (b) Where any delay occurs in the delivery of goods or the performance of services beyond the time or date quoted by EV Sales for such delivery or performance and that delay is caused by lock-outs strikes or other industrial action, interruptions in transport facilities, or fuel or electricity supplies, or by any other cause beyond EV Sales control such time or date shall be deemed to be extended by the period of the delay so caused.
(c) All implied conditions, warranties and terms as to the time or date for the delivery of goods or the performance of services by EV Sales, whether implied by statute, common law or otherwise, are hereby excluded. (d) EV Sales hereby excludes all liability for loss and damage of whatsoever nature resulting from any delay by EV Sales in delivering goods or performing services whether such liability arises in contract tort delicti or otherwise and whether it arises as a result of EV Sales negligence or otherwise.
15. Loss or Damage in Transit
When goods are delivered to the Customer he shall immediately examine them with care. If there is any shortage in the goods delivered or the goods are damaged otherwise than as a result of faulty materials, workmanship, or other lack of merchantable quality, the Customer shall notify EV Sales of such shortage or damage by telephone or facsimile, within 2 working days of the delivery being made and shall confirm such notification in writing in accordance with the provisions of Condition 21 below within 5 working days of the delivery being made, with time being of the essence in each case.
(b) If notification and confirmation are not given in accordance with paragraph (a) of this Condition then the following consequences shall ensue
i) EV Sales shall be deemed to have delivered to the Customer the correct quantity of goods ii) Save in respect of damage caused by faulty materials or workmanship or other lack of merchantable quality the goods shall be deemed to have been undamaged and properly packed when delivered to the Customer.
iii) The Customer shall be deemed to have accepted the goods iv) The Customer shall make no claim against EV Sales in respect of such storage or damage and shall indemnify EV Sales against any claim made against EV Sales in consequence of a claim made by the Customer against any other person in respect of such shortage or damage.
(c) Where goods are damaged on delivery as a result of faulty materials or workmanship or other lack of merchantable quality the provisions of Condition 17 shall apply.
16. Responsibility for Advice Etc.
(a) Any express or implied advice, guidance, recommendations, representations or other statements in this Clause, collectively referred to as ‘statements’, which EV Sales may give or make to the Customer as to the goods sold or supplied by EV Sales or as to the services EV Sales perform or as to any matter relating to such goods or services are given or made on the sole basis that EV Sales accept no responsibility for the accuracy or correctness of such statements. (b) In particular and without prejudice to the generality of the foregoing, the Customer agrees that prior to entering into this agreement he has relied and thereafter he shall rely exclusively on his own skill and judgement as to
i) the fitness of goods sold or supplied by EV Sales for any particular purpose for which they are required by him and ii) the correct selection fitting and adjustment of parts for his machinery and equipment and iii) the correct method of operation and maintenance of his machinery and equipment to the exclusion of any reliance upon EV Sales statements in relation to such matters
(c) Accordingly the Customer further agrees that EV Sales shall not be liable to him whether in contract tort delicti or otherwise for any loss or damage of whatsoever nature caused by reliance by him or by any other person on EV Sales statements or skill and judgement regardless of whether such statements were given or made or such skill and judgement was exercised negligently or otherwise. For the avoidance of doubt, the loss or damage which the Customer hereby agrees that EV Sales shall not be liable to him for includes but is not limited to all economic loss or damage.
17. Responsibility for Goods and Services and Exclusion of Statutory Provisions
(a) This paragraph applies to all goods and services sold or supplied by EV Sales. The responsibilities that EV Sales undertake in respect of such goods and services are that, free of charge, EV Sales will repair or (at EV Sales sole discretion) replace:
i) any goods sold or supplied by EV Sales which are either defective as a result of faulty materials or workmanship or are otherwise not of merchantable quality and ii) any goods repaired by EV Sales which are defective as a result of EV Sales faulty repair work
(b) The responsibilities set out in paragraph (a) above are subject to the following conditions i) EV Sales accept no responsibility in respect of the defects referred to in paragraph (a) above where
a) such defects were drawn to the Customer’s attention before the relevant agreement for the sale or supply of the defective goods was made or b) the Customer examined the goods before the relevant agreement was made and the defects should have been apparent on such examination
ii) and: a) where the defects referred to in paragraph (a) are or should have been apparent on reasonable inspection and testing by the Customer following delivery of the defective goods EV Sales are given written notice of the defects in accordance with Condition 21 below within 14 days of the delivery or b) Where the defects are not so apparent, EV Sales are given such written notice of the defects either as soon as reasonably practicable after they become apparent or within 21 days of delivery of the defective goods whichever is the
sooner unless in either case the period for notification is extended by
EV Sales express written consent iii) If EV Sales so decides that the defective goods are to be returned to EV Sales, it will done so at the Customer’s expense iv) If EV Sales so request, the Customer allows EV Sales access to any place where the defective goods are situated to perform any inspection, testing, repair or replacement which EV Sales consider necessary v) In the case of goods containing lubricating oil which are filled before delivery the responsibilities EV Sales undertake in paragraph (a) above shall not extend to the repair or replacement of any such goods which have been severely damaged as a result of a continuing leakage of oil where the leakage was or reasonably could have been noticed by the Customer and notified to EV Sales in time to prevent such damage
(c) Notwithstanding anything in this Condition or in Condition 16 above EV Sales accept liability
i) for death or personal injury resulting from EV Sales negligence and ii) for defective products arising under Part 1 of the Consumer Protection Act 1987 to the extent provided in part 1 of that Act.
(d) i) The responsibility for goods and services sold or supplied by EV Sales which EV Sales undertake in paragraphs (a) to (d) of this Clause is the totality of EV Sales liability to the customer in respect of such goods and services ii) All further conditions, warranties and terms relating to the sale or supply of such goods and services whether express or implied by statute by common law or otherwise are hereby excluded. iii) Save as provided in this Condition, EV Sales hereby exclude all liability for loss or damage of whatsoever nature arising out of or relating to the sale or supply of goods and services by EV Sales whether arising in contract tort delicti or otherwise and whether arising as a result of EV Sales negligence or otherwise. For the avoidance of doubt the liability for loss or damage which is hereby excluded includes but is not limited to all liability for economic loss or damage.
Once any order has been accepted by EV Sales the Customer shall have no right to cancel it except with the written consent signed by a Director of EV Sales.
19. Goods not Returnable
Subject to Condition 17 above goods are not returnable to EV Sales unless EV Sales have previously agreed in writing to accept their return and a restocking charge of 20% will be made on all goods returned for credit that were originally correctly supplied. Damaged goods will not be accepted for credit.
EV Sales shall be entitled to subcontract the fulfilment of any order or performance of any agreement or the fulfilment or performance of any part thereof.
21. Notices and other Communications
Where under these conditions the Customer is required to give written notice to EV Sales or otherwise communicate with EV Sales in writing, such notice of communication shall be signed by
the Customer or by some responsible person on his behalf and shall be delivered by hand or sent by facsimile transmission or by first class pre-paid letter post to whichever EV Sales establishment has dealt with the transaction in question. Any such notice or communication will not be deemed to have been received until receipt is confirmed by EV Sales.
In these Clauses the following words and phrases bear the meanings assigned to them below: “Company” bears the same meaning as in section 1158 of the Companies Act 2006 and includes in
addition any corporate body. ”Holding Company” and “Subsidiary” bear the same meanings as in sections 1159 and 1160 of the
Companies Act 2006. ”Merchantable Quality” bears the same meaning as in section 14 (6) of the Sale of Goods Act 1979. “Solvent” means able to pay his debts and meet his other obligations as they fall due. ”Apparently insolvent” bears the same meaning as in section 16 of the Bankruptcy (Scotland) Act 2016.
23. EV Sales Warranty
(a) EV Sales warrants that any EV Sales machine supplied shall be free of defect at the time of collection and further warrants that any defect due to faulty workmanship or material defect which develops during the warranty period of 3 months warranty with all of our machinery. The warranty covers major components. It does not cover perishable items such as tyres, hoses, light bulbs and fuses. The warranty does not cover any damage to the machine after collection. The machine will be rectified/replaced at EV Sales’s discretion provided that:-
i) The goods have been used and maintained only in accordance with EV Sales’s instructions and recommendations. ii) That the goods have not been misused. iii) That the goods have not been altered or adapted in any way.
iv) That any EV Sales machine has been used only with genuine buckets and/or cradles supplied by EV Sales. v) That only genuine replacement parts supplied by EV Sales have been correctly fitted where any parts have been required.
(b) EV Sales shall not under any circumstance be liable for any damages compensation loss of use claims expenses losses or other potential liabilities whether direct or consequential and any other remedy which may otherwise be available in law is hereby excluded except where such exclusion is prohibited by law.
(c) The customer shall immediately notify EV Sales of any failure or potential failure as it becomes apparent. Damage caused by continued use shall be excluded from this warranty. (d) No warranty is given on any parts supplied by EV Sales in kit form or any pipework affixed to the machine or for hydraulic connections.
(e) Warranty shall be on a “parts returned basis”, and no claim for labour will be accepted under any circumstances. (f) In the event of non-agreement on any failure claimed under warranty, the decision of EV Sales shall be final and binding.
24. Product Designs
EV Sales engages in a policy of continuous development and improvement of its products and therefore reserves the right to alter the design and/or specification of any product without notice and without incurring liability subject only to the product remaining fit for its original purpose.
25. Patents & Copyright
There is a patent existing on the design of the EV Sales machines and their buckets. In addition any logo using the trade names “EV Sales ” or “MASTERHITCH”, all instructions manuals etc. are copyright. Only EV Sales Limited, their licensed and approved agents (such license given in writing by a Director of EV Sales Limited) may manufacture products or issue literature of any kind using these patents/copyrights. Any infringement of these conditions shall automatically render the infringer(s) liable for losses/ damages incurred by EV Sales Limited (and connected parties) and the suspension of further supplies without notice.
26. Internet and e-mail communications.
(a) The customer may make enquiries direct from EV Sales website at www. EV Sales.com (d) EV Sales reserves the right to change without notice any item on its Web Site or literature.
27. Data Protection Act and Consumer Credit License.
(a) EV Sales uses a number of credit reference agencies and clubs to protect itself from fraud and bad credit risk as well as taking references from Trade Suppliers and Bankers where appropriate. By applying for an account with EV Sales the customer hereby agrees that EV Sales may access store and use such information about their Company and/or Directors and/or Shareholders and/or Partners to allow EV Sales to decide whether to offer or continue to offer credit.
(b) For its part EV Sales agrees that any information accessed as detailed in clause (a) above will be held solely for the purposes detailed in the General Data Protection Regulation (EU) 2016/679 (EU GDPR) and that at no time shall this information be imparted to a third party except to our legal representatives and where we are required to by law. Use and storage of such data shall at all times be in conformity with the Regulation.
(c) EV Sales is compliant with the General Data Protection Regulation (EU) 2016/679 (EU GDPR) and holds a current Consumer Credit License. Details are available upon written request to the Financial Director at EV Sales Head Office.
28. Right to Communicate.
(a) By applying to open an account ordering from or requesting a quotation from EV Sales the customer hereby confers upon EV Sales the right to contact the customer by telephone facsimile or e-mail to offer advice or additional services that EV Sales believe will be of interest to the customer.
(b) The customer has the right to opt out of any of the agreements in clause 28(a) above by writing to EV Sales stating which of the above he does not wish to receive. Letters should be addressed Private & Confidential to The Group Marketing Manager, EV Sales Ltd, Whitewall Road, Strood, Kent ME2 4DZ.
(a) If any provision in these conditions is held by any competent court of law to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Clauses, and the remainder of the provisions in question, shall not be adversely affected thereby.
(b) EV Sales shall not be liable to the customer nor be deemed to be in breach of any of these Clauses by reason of any delay in performing or failure to perform any obligation of these Clauses due to any of the following causes which are beyond its control:
i. Act of God explosion flood tempest fire or accident. ii. War or threat of war sabotage insurrection civil disturbance or requisition or act of terrorism. iii. Acts restrictions byelaws regulations prohibitions or measures of any kind on the part of any governmental parliamentary or local authority. iv. Strikes lock-outs or other trade disputes v. Difficulties in obtaining raw materials labour fuel spare parts or machinery. vi. Power failure or breakdown in machinery.
(c) Whilst EV Sales will at all times endeavour to deliver orders to the times requested by the customer, delivery times shall not be of the essence on any order. (d) This contract shall be governed by the laws of England and is subject to the jurisdiction of the English Courts.
(e) Not withstanding anything to the contrary in the absence of any specific Clause, English Common Law applies. (f) EV Sales shall be entitled at any time, and from time to time, to vary or replace the terms and conditions and exceptions herein contained without notice.
(g) To enable us to offer constant improvements in our customer service, and to ensure accuracy by verifying instructions where necessary, EV Sales may monitor and/or record telephone calls.
30. Valid from
These Terms and Conditions of Sale are valid from February 2019 and supersede all previous Terms and Conditions of sale.