1.1. In these Conditions, the following words and expressions shall, unless the context otherwise requires, have the following meanings:
“the Buyer” means the company, person or organisation whose name and invoice address is set out in the Contract;
“Contract” means any contract between M-Sport and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
“Consequential Loss” means any consequential loss which includes without limitation (i) loss of profits; (ii) any other economic loss or loss of production, product, use, turnover, anticipated profits, business opportunity or goodwill; and (iii) all loss or damage to property or equipment of the Buyer, or any of its purchasers, or any other third party;
“the Goods” means any goods detailed in M-Sport’s written acknowledgment of order to be supplied to the Buyer by M-Sport;
“Insolvency Event” means if (i) any party ceases or threatens to cease to carry on its business or a significant part of it (unless as part of a solvent reconstruction) or suspends or threatens to suspend payment of its debts or is unable or is deemed to be unable to pay its debts within the meaning of Section 123 (1) of the Insolvency Act 1986; (ii) a proposal is made, or a nominee or supervisor is appointed, of a party for a composition in satisfaction of its debts or for a scheme of arrangement of its affairs or other arrangement or any proceedings for the benefit of its creditors are commenced under any law, regulation or procedure relating to the reconstruction or re-adjustment of debt; (iii) a petition is made for an administration order under the Insolvency Act 1986 with respect to any party; (iv) any steps are taken by a party or any other person to wind up or dissolve that party or to appoint a liquidator, trustee, receiver, administrator, administrative receiver or similar officer to any such party or any part of such party’s undertaking; (v) any legal process is levied, enforced or sued against a party or its assets or any person validly takes possession of any of the property or assets of a party or steps are taken by any person to enforce any security right against any of the property or assets of such a party;
“Instructions” means any written or electronic instructions supplied by M-Sport with the Goods prior to despatch or at the time of despatch to the carrier (“despatch”) or otherwise provided prior to or at the time of despatch in relation to the Goods including without limitation to the generality of the foregoing (i) where Goods are provided in “kit” form or are parts anything analogous thereto, in relation to their assembly or commissioning or (ii) in relation to all Goods, as to their use or maintenance.
“M-Sport” means M-Sport Limited whose registered office is at Rowan Court, Concord Business Park, Threapwood Road, Manchester M22 0RR.
1.2. In these Conditions:
1.2.1. references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced;
1.2.2. any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal term;
1.2.3. any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.4. the headings will not affect the construction of these Conditions.
2. BASIS OF THE CONTRACT
2.1. These Conditions shall apply to the exclusion of any other terms and conditions including those supplied by the Buyer and acceptance of delivery of the Goods shall be deemed to constitute unqualified acceptance of these Conditions.
2.2. No variation to these Conditions shall be binding unless agreed in writing by an authorised representative of M-Sport. M-Sport’s employees or agents are not authorised to make any representation concerning the Goods unless confirmed in writing by M-Sport.
2.3. No order placed by the Buyer shall be deemed to be accepted by M-Sport until a written acknowledgement of order is issued by M-Sport or (if earlier) M-Sport delivers the Goods to the Buyer.
3.1. Any dates specified by M-Sport for delivery of the Goods whether in the acknowledgment of order or otherwise are intended to be an estimate and time for delivery shall not, subject to clause 3.2, be made of the essence by notice.
3.2. Subject to the other provisions of these Conditions M-Sport will not be liable for any direct, indirect or Consequential Loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by M-Sport’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days.
3.3. If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or M-Sport is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
3.3.1. risk in the Goods will pass to the Buyer;
3.3.2. the Goods will be deemed to have been delivered; and
3.3.3. M-Sport may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
3.4. No claims for shortages will be considered by M-Sport unless made in writing (referring to the delivery note number) and received by M-Sport and the carrier within seven days of delivery of the Goods.
3.5. Any liability of M-Sport for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract price against any invoice raised for such Goods.
3.6. M-Sport may deliver the goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with the provisions of the Contract.
3.7. Each instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment will entitle the Buyer to repudiate or cancel any other Contract or instalment.
3.8. Samples of Goods may, at M-Sport’s discretion, be supplied at a cost to the Buyer and all samples are non-returnable.
4.1. Unless agreed to the contrary by M-Sport in writing the Goods are at the risk of the Buyer from the time the Goods are delivered to the carrier by M-Sport and therefore it is the Buyer’s responsibility to insure the Goods from the time they are collected by the carrier.
4.2. Without prejudice to clauses 4.1 and 5.1 ownership of the Goods shall not pass to the Buyer until M-Sport has received in full (in cash or cleared funds) all sums due to it in respect of:
4.2.1. the Goods; and
4.2.2. all other sums which are or which become due to M-Sport from the Buyer on any account.
4.3. Without prejudice to clauses 4.1 and 5.1 until ownership of the Goods has passed to the Buyer, the Buyer must:
4.3.1. hold the Goods on a fiduciary basis as M-Sport’s bailee;
4.3.2. store the Goods (at no cost to M-Sport) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as M-Sport’s property;
4.3.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
4.3.4. maintain the Goods in satisfactory condition and keep them insured on M-Sport’s behalf for their full price against all risks to the reasonable satisfaction of M-Sport. On request the Buyer shall produce the policy of insurance to M-Sport.
4.4. The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
4.4.1. any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
4.4.2. any such sale shall be a sale of M-Sport’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
4.5. The Buyer’s right to possession of the Goods shall terminate immediately if the Buyer suffers an Insolvency Event.
4.6. M-Sport shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from M-Sport.
4.7. The Buyer grants M-Sport, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
4.8. Where M-Sport is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer will be deemed to have sold all goods of the kind sold by M-Sport to the Buyer in the order in which they were invoiced to the Buyer.
4.9. On termination of the Contract, howsoever caused, M-Sport’s (but not the Buyer’s) rights contained in this condition 4 will remain in effect.
5.1. The price of the Goods shall be the price set out in M-Sport’s acknowledgment of order.
5.2. The price for the Goods shall be exclusive of any value added tax and all costs of carriage which shall be payable in addition by the Buyer plus the Buyer (where the Goods are sold for export from the United Kingdom) will be responsible for all duties or taxes in relation to the Goods pursuant to clause 9.3.
6.1. Payment of the full price for the Goods and all other sums due from the Buyer in relation to the Goods hereunder (including without limitation pursuant to clause 9.3 where applicable) is due in pounds sterling prior to their despatch date which shall be as notified by M-Sport to the Buyer. M-Sport shall notify the Buyer of the despatch date relating to the Goods as far as practicable in advance of such date when known. Time for payment shall be of the essence.
6.2. No payment shall be deemed to have been received until M-Sport has received cleared funds.
6.3. All payments payable to M-Sport under the Contract shall become due immediately upon termination of the Contract despite any other provision.
6.4. If the Buyer fails to pay M-Sport any sum due pursuant to the Contract, then without prejudice to any other rights or remedies M-Sport may have:
6.4.1. the Buyer will be liable to pay interest to M-Sport on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of National Westminster Bank PLC, accruing on a daily basis until payment is made, whether before or after any judgment. Alternatively, M-Sport reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and / or
6.4.2. suspend the supply of any further instalments or deliveries of Goods.
7.1. M-Sport warrants that (subject to the other provisions of these Conditions) upon delivery to the carrier the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and be reasonably fit for their purpose which is acknowledged by the Buyer as being for use in competitive motor-sport and no other use.
7.2. M-Sport shall not be liable for a breach of the warranty in condition 7.1 unless:
7.2.1. the Buyer gives written notice of the defect to M-Sport, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
7.2.2. M-Sport is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by M-Sport) returns such Goods to M-Sport's place of business for the examination to take place there;
7.3. If any of the Goods do not conform with the warranty in condition 7.1, M-Sport shall at its option repair or replace such Goods or refund the price of such Goods at the pro rata Contract rate provided that the Buyer shall return the Goods which are defective to M-Sport. No Goods shall be returned by the Buyer without the prior consent of M-Sport.
7.4. M-Sport shall not be liable for a breach of warranty in condition 7.2 if:-
7.4.1. the Buyer makes any further use of the Goods after giving such notice;
7.4.2. the defect arises because the Buyer failed to follow the Instructions or other oral or electronic or written instructions of M-Sport as to the storage, installation, commissioning or use or maintenance of the Goods or if the Buyer has failed to follow best industry practice;
7.4.3. the Buyer alters or repairs the Goods without the written consent of M-Sport; or
7.4.4. the defect arises after the Goods have been first used in competitive motor-sport.
7.5. If M-Sport complies with condition 7.3 it shall have no further liability for a breach of the warranty in condition 7.1 in respect of such Goods.
8. LIMITATION OF LIABILITY
8.1. Subject to conditions 3 and 7, the following provisions of this Condition 8 set out the entire financial liability of M-Sport (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
8.1.1. any breach of these Conditions;
8.1.2. any liability in relation to the Goods or otherwise to the Buyer under a Contract;
8.1.3. any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
8.1.4. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
8.2. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
8.3. Nothing in these Conditions excludes or limits the liability of M-Sport:
8.3.1. for death or personal injury caused by M-Sport’s negligence;
8.3.2. under section 2(3) Consumer Protection Act 1987;
8.3.3. for any matter which it would be illegal for M-Sport to exclude or attempt to exclude its liability; or
8.3.4. for fraud or fraudulent misrepresentation.
8.4. Subject to conditions 8.2 and 8.3:
8.4.1. M-Sport’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price of the Goods; and
8.4.2. M-Sport shall not be liable to the Buyer for any Consequential Loss.
8.5 The Buyer firstly acknowledges that the foregoing provisions of this clause 8 are reasonable in all the circumstances including the nature of motor-sport and secondly warrants to M-Sport that it will follow fully all and any Instructions and thirdly that the Goods will not be used other than in competitive motor-sport.
9. M-SPORT INDEMNITY
Subject to clauses 3 and 8.2 to 8.5 (inclusive) M-Sport shall have no liability to any driver or co-driver (whether or not such person(s) is/are the Buyer) of a vehicle which incorporates either partially or wholly the Goods or to any employee of the Buyer or the Buyer’s directors or any other person in all cases relating to any accident involving such vehicle whether in competition or otherwise and the Buyer hereby agrees to fully indemnify M-Sport against any action(s) brought by said persons or their personal representatives or any third party as a result of any death or personal injury or other loss or damage to such persons and also against any liability to M-Sport whatsoever relating to a breach of the warranties on the part of the Buyer contained herein including without limitation condition 8.5.#
10. EXPORT TERMS
10.1. In these Conditions "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meanings in these Conditions but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
10.2. The Buyer shall be responsible for complying with any legislation or regulation governing the importation of the Goods into the country or destination outside of the United Kingdom and for the payment of any duties thereon.
10.3. Where the Goods are sold for export from the United Kingdom the Buyer shall be responsible for the payment of any duties or taxes (arising from the export of the Goods from the United Kingdom into the country of destination) and shall indemnify and hold harmless M-Sport from and against any such liability to pay such duties or taxes and specifically shall be liable to pay to M-Sport such duties and taxes if so required by M-Sport pursuant to these Conditions.
11. M-SPORT'S STATUS
11.1. M-Sport is selling the Goods on its own account and not as agent of any other party including without limitation Ford Motor Company whose principal place of business is The American Road, Dearborn, Michigan, USA (“Ford”) or any of Ford’s subsidiaries or associates and without prejudice to the generality of the foregoing no warranty has been or can be given to the Buyer or any purchaser of the Goods by Ford or any of its subsidiaries or associates.
12. FORCE MAJEURE
M-Sport reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of M-Sport including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
13.1. Any notice given under the Contract shall be in writing and signed by or on behalf of the party giving it and may be served by delivering it personally or sending it by pre-paid recorded delivery (or registered airmail in the case of an address for service outside the United Kingdom or fax or email.
Any notice shall be deemed to have been received if delivered personally, at the time of delivery; in the case of pre-paid recorded delivery, 48 hours from the date of posting; in the case of registered airmail, five days from the date of posting; in the case of fax, at the time of transmission; and in the case of email, at the time that the email is ready for collection via the recipient's or the recipient's internet service provider's mail server.
13.2. The exception to the right to serve notice by email under this condition 12 is in respect of the service of legal proceedings, which shall only be served, in accordance with this clause, by personal delivery or first class post.
14.1. Each right or remedy of M-Sport under the Contract is without prejudice to any other right or remedy of M-Sport whether under the Contract or not.
14.2. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.3. Failure or delay by M-Sport in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract or a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
14.4. The parties to this Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.5. The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.