"Acceptance" means acceptance of Goods or Services by you or your agent at the Delivery Address following inspection or signed acceptance by you or your agent. "Buyer Abuse" means any modification, abuse, breakage or damage of Goods by any act or neglect of you or of a third party "Delivery Address" means the address stated in the Order for the delivery. "Delivery Time" means the date and if any the time slot set out in the Order or communicated by you to us for delivery of Goods or performance of Services. "Goods" means any goods set out in the Order or any instalments of them. "Order" means any purchase order from you or any quotation from us on your instructions to order goods or services from us after the date of receipt of these Terms. "Price" means the price for the Goods and / or Services set out in the Order. "Services" means any services set out in the Order. "Specification" means any descriptions, quantities, plans, data or other information relating to Goods or Services set out in the Order. "We / us / our" refers to Tachodisc (trading as TDUK), a company registered in England with number 10140022 of TDUK Limited, Hermes House, St. Johns Road, Tunbridge Wells. Kent TN4 9UZ together with any of its associated companies or subsidiaries. "You / Your" refers to anyone who orders Goods or Services from us.
2. Basis of Purchase
2.1 The Order is an offer by you to purchase the Goods and/or acquire the Services from us subject to these Terms.
2.2 These Terms apply to the exclusion of any other terms or subject to which the Order is made or purported to be made by you. No variation to the Order or these Terms is binding unless agreed in writing between authorised representatives of you and us.
2.3 The Order will lapse unless accepted by us in writing prior to the Delivery Time.
3.1 We shall arrange and be responsible for the delivery of Goods or the performance of Services to or at the Delivery Address during business hours unless agreed otherwise.
3.2 We will use reasonable endeavours to deliver the Goods or perform the Services at Delivery Time but time is not of the essence and you must accept delivery and pay the Price provided that delivery or performance occurs within 2 months of Delivery Time. You must notify us within 14 days of Delivery Time of any alleged non-delivery of a whole consignment of Goods.
3.3 If you fail to take delivery of the Goods at the Delivery Time or fail to give us adequate instructions for delivery then without prejudice to our other rights or remedies we may at our option either store the Goods until delivery and charge you reasonable costs for storage and repeated delivery or sell the Goods to a new buyer and charge you for any shortfall below the Price (taking into account any additional delivery or storage costs).
3.4 We may deliver the Goods or perform the Services in instalments but in such circumstances the contract will be still be a single contract and not severable.
3.5 We advise two to three working days for delivery. However this is not guaranteed, therefore allow up to five working days. Please ensure you contact us, if you order has not been received within 14 days of order confirmation. You will be advised if your item is out of stock, as this will affect delivery times.
4. Risk and Title
4.1 Risk of damage to or loss of the Goods shall pass to you on Acceptance by you in accordance with these Terms or if earlier then the scheduled Delivery Time if you wrongfully fail to take delivery of the Goods.
4.2 The property and title in Goods pass to you on the later of Acceptance or receipt by us of payment for the Goods.
4.3 Until the property and title in Goods passes to you under these Terms, you must (a) insure the Goods at all times against all risks and you shall (b) hold the Goods on a fiduciary basis only as bailee for us. You must (c) store the Goods in such circumstances separately from other goods and in such a way that they can be identified as our property. (d) permit us to enter upon any premises occupied or controlled by you where the Goods are kept and repossess the Goods.
5. Price of the Goods and Services
5.1 Unless agreed otherwise the Price is: (a) exclusive of any applicable value added tax (which shall be payable by you subject to receipt of a VAT invoice); and (b) inclusive of all charges for packaging, freight, freight insurance and delivery of Goods to the Delivery Address and any duties other than VAT.
6. Terms of Payment
6.1 We will invoice you on or at any time after Acceptance of the Goods or performance of the Services, as the case may be.
6.2 Unless otherwise stated in the Order, you must pay the Price of Goods and Services to us within [15 days?] of the later of receipt by you of a proper invoice or Acceptance of the Goods or Services.
6.3 We may charge you interest from the date any payment is due until we receive it at a rate % above the base lending rate of [your bank] from time to time.
6.4 You may not set off against the Price any sums owed to you by us.
7. Acceptance, Warranties and Liability
7.1 You must inspect any Goods on delivery and notify us within 5 days of delivery of any alleged failure to conform with the Specification. Provided that we have not received such a notification within the 5 days, Acceptance of the Goods and a conclusive presumption that the quantity of Goods matches the Specification will be deemed to have occurred.
7.2 We warrant for the earlier of 12 months from Acceptance or 100,000 kilometres being recorded for tachometers and for 3 months from Delivery Time for all other Goods that in all material respects any Goods will:
(a) be free from material defects;
(b) correspond in material respects with any relevant Specification;
and (c) comply with all applicable legislation relating to the sale of the Goods.
7.3 We warrant for 3 months from the Delivery Time to you that any Services will correspond in all material respects with any relevant Specification and will be performed by appropriately trained personnel using reasonable care and skill.
7.4 We agree to resolve free of charge any non-conformance in breach of the warranties under Sub-Clauses 7.1 or 7.2 provided such non-conformance is notified to us within the relevant warranty period and provided that there has been no Buyer Abuse. The resolution of the non-conformance will be at our expense and may include at our sole discretion repair or where appropriate replacement of Goods with similar Goods, which in the case of analogue tachometers means similar analogue tachometers only.
7.5 In the event that any tachometer head is submitted by you to us pursuant to the warranties and no fault is found or Buyer Abuse is discovered, then:
(a) we shall make a reasonable charge for the time expended by us and for any materials used;
(b) if in the meantime we have, at our discretion, supplied you with any replacement Goods, then you will be invoiced in full for those replacement Goods, and this will also apply where you have failed to return the original Goods to Tachodisc within 20 days of receiving any replacement Goods.
7.6 Our liability to you in respect of death or personal injury resulting from negligence shall not be limited. Other than in those respects, our total liability to you shall not exceed the lesser of the Price or the money actually received from you for the Goods and Services in respect of which a claim has been made.
7.7 We shall have no liability to you for: (a) loss of profits, goodwill, revenue, production, anticipated savings, use or contracts, losses consequent upon loss or corruption of data; (b) any indirect or consequential loss, damage or expense including any labour, calibration or the hiring of a replacement vehicle; nor (c) defects in the Goods or Services not reported in writing within the warranty period of 3 months from the Delivery Time nor defects reported during that period if we comply with our obligations under Sub-Clause 7.3.
7.8 The exclusions and limitations of liability set out in these Terms exclude and limit all of our liability to you for all matters arising in connection with these Terms whether in contract, tort (including negligence), for breach of statutory duty or otherwise.
7.9 You must indemnify us in respect of any claims for loss, damage, injury or expense by any third party arising directly or indirectly from your possession, operation, use, modification or supply to a third party of the Goods or Services or otherwise arising in connection with these Terms except for death or personal injury to the extent that it results from our negligence.
8. Intellectual Property
8.1 The Specifications and intellectual property rights in them and in Goods or Services shall as between us be our property with a non-exclusive licence to you to use software supplied by us to you.
8.2 Whichever party provides the Specifications (the “Indemnifier”) indemnifies the other party against any claim that the use of the Specifications, or the manufacture, sale or use of the Goods contravenes any third party’s intellectual property rights. Each party agrees promptly to inform the Indemnifier of any claim and if requested at the Indemnifier’s expense to take all reasonable steps to enable the Indemnifier itself to defend any such claim.
9. Force Majeure
9.1 Neither party shall be liable for any delay or failure to meet its obligations under these Terms (other than a payment obligation) due to any cause outside its reasonable control (a force majeure situation), which it must notify to the other party as soon as possible. This Clause also applies where the affected party has reasonable grounds to believe that a force majeure situation is imminent whether or not it has actually occurred at that time.
10.1 We will both treat all information received from or created for each other marked “confidential” or “private” or reasonably obvious to be confidential as we would treat our own confidential information.
11.1 Either party may terminate the contract or Order without liability to the other by giving notice to the other at any time if:
(a) the other party commits a material or persistent breach of these terms and does not remedy the breach within 14 days of receipt of written notice to do so;
(b) the other party becomes insolvent or is unable to pay debts as they fall due;
(c) anything analogous to the foregoing occurs under the law of any jurisdiction in relation to the other party; or
(d) either party believes on reasonable grounds that any of the events mentioned above is about to occur to the other party.
11.2 Termination for any reason will not release you from the obligation to pay us any sums due, including any costs incurred by us in relation to Orders for goods or services that are not yet completely delivered or performed.
12.1 We may subcontract, assign or transfer our obligations or rights to a competent third party or to any associated company whether in whole or in part. You may not assign or transfer any of your obligations without our written consent.
12.2 A notice required or permitted to be given under these Terms shall be in writing and delivered to the other party’s registered office or such other address as may at the relevant time have been notified to the party giving the notice. Delivery may be by hand, email, fax or post (with delivery deemed 48 hours after posting).
12.3 These Terms set out the entire understanding of the parties with respect to their subject matter and replace any prior agreements or understandings or representations (unless fraudulent), whether written or oral. You agree that you will not have any right of action against us arising out of or in connection with any such representations unless fraudulent and that you have not relied on any such representations. All warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.4 These Terms do not confer a benefit on any third party and the provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded.
12.5 If any provision of these Terms is illegal, invalid or unenforceable in any jurisdiction, its enforceability in any other jurisdiction shall not be affected and nor shall the validity or enforceability of any other provision of these Terms.
12.6 No waiver of any breach of these Terms shall be considered a waiver of any subsequent breach of the same or any other provision.
12.7 These Terms and this contract are governed by English Law and are subject to the exclusive jurisdiction of the English courts.
13.1 A full refund or, if preferred, exchange of equal value is guaranteed for customers returning products within 7 days of delivery when purchased through Tachodisc.
13.2 A full refund or, if preferred, exchange of equal value is guaranteed for customers returning unopened products within 28 days of purchase or delivery.
13.3 If you bought a product, or received it as a gift, and decide that you no longer require it you can return it to us within 28 days of delivery for a full refund, as long as the package is unopened or undamaged, and suitable for resale.