In this Contract the following terms shall bear the following meaning:
- ‘Seller’ shall mean Tallis Amos Group Limited (a Company registered in England and Wales with Company Number 04697211) of Hinton-on-the-Green, Evesham, Worcestershire WR11 2QT.
- ‘Buyer’ shall mean the name of the person, company or firm set out overleaf.
- ‘Goods’ shall mean all the items listed overleaf.
- ‘Price’ shall mean the total Price of all the Goods ordered as set out overleaf together with any delivery charge as specified overleaf exclusive of VAT.
- ‘VAT’ shall mean the total amount of value added tax due in respect of the Price.
- ‘Place of Delivery’ shall mean the Seller’s address as set out in clause A1 above unless a contrary Place of Delivery has been specified overleaf AND the appropriate charge has been specified.
- ‘Delivery Date’ shall mean the date specified overleaf.
- “Second Hand Goods” shall mean Goods specified as such overleaf, being Goods that are not sold as new.
- “Force Majeure” means fire, explosion, flood, lightning, Act of God, act of terrorism, war, rebellion, riot, sabotage, or official strike or similar official labour dispute, the unavailability of goods ordered or requested by the Seller from the manufacturer or supplier or events or circumstances outside the reasonable control of the party affected thereby.
B. Application of Terms and Conditions
These provisions shall apply to all contracts for the sale of goods between the Seller and the Buyer notwithstanding and to the exclusion of any terms or conditions which the Buyer may purport to incorporate under any purchase order, letter of order, confirmation of order or similar document.
Any and all future orders shall be deemed to be offers by the Buyer to purchase goods pursuant to these terms and conditions unless the Seller shall amend these terms and conditions or notify the Buyer to the contrary in writing.
Any variation to these terms and conditions may only be made by writing by the Seller and unless so made shall have no effect.
No specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of a Quotation (or be incorporated into a Quotation or subsequent Contract) unless they are expressly set out in a Quotation by the Seller.
If the Seller is not in physical possession of the goods at the time that the Buyer offers to buy the goods, the Seller’s obligation to sell and the Buyer’s obligation to buy shall be subject to the goods being made available by the appropriate manufacturer or supplier. If the Seller has attempted to order goods from the manufacturer or supplier at the request of the Buyer, and the order has not been fulfilled due to the failure of the manufacturer or supplier to provide the goods, the Seller shall inform the Buyer that the goods are not available for sale and in such circumstances the Seller shall repay to the Buyer any part of the Price that has been paid and neither the Seller nor the Buyer shall be under any further obligation to sell or buy the goods or shall be entitled to damages for the failure of the Seller to sell the goods to the Buyer.
This Contract is governed by the law prevailing in England and Wales.
C. Delivery and Risk
Delivery of the Goods shall be at the Place of Delivery.
Delivery shall be made by the Seller giving the Buyer possession of the Goods.
The Buyer shall make all necessary arrangements to take possession of the Goods on the Delivery Date and at the Place of Delivery. In the event that the Buyer has not made such arrangements delivery may be made by the Seller leaving the Goods at the Place of Delivery during the hours of 9.00 a.m. and 5.00 p.m.
Any time or date for delivery given by the Seller is given in good faith, but is an estimate only. The time for delivery shall not be of the essence and in the event that the Seller is unable to give the Buyer possession of the Goods on the Delivery Date at the Place of Delivery this shall not be good reason for the Buyer to terminate the contract or reject the Goods.
Risk in the Goods shall pass to the Buyer upon delivery.
Notwithstanding delivery, title in the Goods shall not pass to the Buyer until the Buyer has paid the Price to the Seller, but, even though the title has not passed, the Seller shall be entitled to sue for the Price once its payment has become due.
The obligation upon the Buyer to pay the Price with any and all VAT to the Seller arises on the Delivery Date or beforehand.
Payment may be made by cash, cheque, or electronic Bank Transfer, but in the event that payment is made by cheque then the time for payment as set out in clause D1 above shall be 5 days before the Delivery Date.
The time for payment of the Price shall be of the essence.
In the event that the Buyer fails to make payment in accordance with clause D1 and D2 the Buyer shall pay interest on any and all sums outstanding at the rate of 2% above the base rate charged at the time of default by Barclay’s Bank plc.
E. Acceptance of Goods
The Buyer shall be deemed to have accepted the Goods, as if he had expressly written to the Seller and stated as such, if he fails to notify the Seller in writing that he does not accept the Goods within 7 days of delivery of the Goods.
F. Exclusion and Limitation
Unless the Buyer deals as a consumer within the meaning of Section 12 of the Unfair Contract Terms Act 1977 then all warranties, terms or conditions which provide that the Goods will match any particular description, fitness for purpose or quality whether implied by common law or statute shall be excluded from this Contract.
The Seller shall be under no liability to the Buyer for special, indirect or consequential loss, or damage (including loss of profits, business contracts, revenues and anticipated savings) sustained by the Buyer following breach of this Contract by the Seller.
In any event, the Seller’s liability to the Buyer arising out of any breach by the Seller of this Contract shall be limited to damages and such damages shall under no circumstances exceed the Price.
G. Rejection of Goods not conforming to the Contract
If the Buyer wishes to reject goods that are not in accordance with the contract then he may only do so by giving the Seller notice in writing no more than 7 days after delivery of the Goods.
If the Buyer rejects goods in accordance with clause C1 above then the Buyer shall nonetheless be obliged to return any goods so rejected to the Seller’s address during the hours of 9.00 a.m. and 5.00 p.m. on a normal business day and to pay any carriage costs incurred by doing so.
If the Buyer purports to reject any goods otherwise than in accordance with clauses C1 and C2 above then any such act shall be ineffective and the Seller shall not be bound to re-take possession of the Goods.
H. Second-Hand Goods
All Goods sold to the Buyer as Second-Hand Goods are taken by the Buyer in the condition in which they are offered for sale by the Seller (inclusive of all defects apparent to the Buyer, or which would have been apparent had a reasonable inspection have been made by the Buyer) the Buyer being satisfied by their own inspection, as to their quality and fitness for the purpose for which the Buyer requires them.
Where the Buyer intends to use the Goods at work, the Seller supplies them with the strict requirement that the Buyer will ensure, so far as reasonably practicable, that the Goods will be safe and without risks to health when properly used.
Further, and to the maximum extent permitted by law, the Seller gives no warranties in relation to the quality of the Goods or their suitability for any purpose, whether express or implied by statute, common law or otherwise. The Seller shall be under no liability, whether at contract or in tort or otherwise, in respect of the quality of the goods or their fitness for any purpose, save that, if the Buyer is a natural person, in accordance with the provisions of s.2(1) of the Unfair Contract Terms Act 1977, the Seller accepts and does not seek to limit or exclude liability for any death or personal injury caused to the Buyer by reason of the Seller’s negligence.
I. Force Majeure
The Seller shall not be under any liability for any failure to perform any of its obligations due to Force Majeure. Following notification by the Seller to the Buyer of such cause, the Seller shall be allowed a reasonable extension of time for the performance of its obligations.
In respect of all new Goods manufactured and supplied to the Seller by third parties the Seller will pass on to the Buyer (in so far as possible) the benefit of any warranty given to the Seller by such third parties and will (on request) supply to the Buyer details of the terms and conditions of such warranty and copies of any relevant product information sheets, technical data sheets or product leaflets issued by such third parties and the Buyer shall be solely responsible to the entire exclusion of the Seller for complying with all of these.
Where the benefit of a third party warranty is available to the Buyer (or would have been available to the Buyer, but for a default for which the Buyer is responsible) the Seller’s liability under J1 shall (subject to Condition L) be to the exclusion of all other liability to the Purchaser whether contractual, tortious or otherwise for defects in the Goods or for any loss or damage to or caused by the Goods, and (subject to Condition L) all other conditions, warranties, stipulations or other statements whatsoever concerning the goods, whether express or implied, by statute, at common law or otherwise howsoever, are hereby excluded.
K. Data Protection
The Seller gives notice that it will pass customer information to its main supplier, John Deere, and the Buyer is taken to expressly agree to the following:
“I agree to the processing of my personal data by the Dealer, by John Deere and our respective service providers for the purpose of marketing products and services of any kind offered by John Deere from time to time, I understand that this may include the transfer to and processing of my data for such purpose by John Deere companies located outside the EEA”.
L. Unfair Contract Terms Act 1977
If and to the extent that s.6 and/or s.7(3A) of the Unfair Contract Terms Act 1977 applies, no provision of these terms and conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for breach of the applicable warranties as to title and quiet possession implied into the terms and conditions of the Order by s.12(3) of the Sale of Goods Act 1979, or s.2(3) of the Supply of Goods and Services Act 1982, whichever Act applies to the Order.
Where the Buyer is a natural person and if and to the extent that s.2(1) of the Unfair Contract Terms Act 1977 applies to the Order, nothing in these terms and conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for death or personal injury caused by reason of the negligence of the Seller or of its servants, employees or agents.
No provision of these terms and conditions shall have effect or operate so as to exclude any liability of one of the parties in respect of fraud or a fraudulent misrepresentation made by that party to the other, or to restrict or exclude any remedy which the other party may have in respect of such fraud or fraudulent misrepresentation.
M. John Deere Dealer’s Warranty
Notwithstanding the provisions of J1 and J2, if the goods sold are new goods manufactured by John Deere, the Seller (hereafter also referred to as “the Dealer”) shall warrant to the Buyer (hereafter also referred to as “the original customer”) in the following terms (and J1 and J2 shall not apply):
“If any defect is discovered in new goods, within 12 months in the case of complete machines, and 6 months in the case of parts, in each case from the date of delivery to the original customer, and is due solely to defective material or workmanship used in the course of their manufacture, the goods having been maintained and used as outlined in the Operator’s Manual, then the Dealer will, at its option, either repair or replace the defective part or parts on the new goods concerned free of charge. Such repair or replacement will be carried out either by the Dealer itself or any other authorised John Deere dealer. In the case of John Deere engines only, whether supplied as part of a complete machine or as a spare part, the warranty will extend to 24 months or 1,500 hours, whichever occurs first, calculated from the date of delivery to the original customer. For the purpose of this warranty ‘engine’ includes cylinder block, cylinder head, crank case oil pan, timing gear cover and the parts that are enclosed therein, also rocker-arm cover, fly-wheel housing (engine back plate), rear crankshaft oil seal and wear ring, but excludes fuel equipment, flywheel ring gear, electrical equipment, flywheel, turbocharger, spigot bearing, exhaust pipe, fan, exhaust manifold, fan belts, radiator, front pulley/dampener, water pump, thermostats, coolant conditioner, starting aids, oil cooler, air cleaner and air conditioning equipment. The benefit of this warranty is transferable to any person who acquires any interest in the relevant goods for use within the European Economic Area. It will be honoured by any authorised John Deere dealer within that Area but, outside the United Kingdom and the Republic of Ireland, only to the extent that it is consistent with the terms of the warranty authorised by John Deere and which would be issued to original customers who purchase such goods or corresponding goods from the authorised dealer who is asked to honour this warranty and at that time. This warranty in no way restricts or affects the customer's statutory rights.”