standard TERMS AND CONDITIONS for the sale of goods and services
These Terms and Conditions are the standard terms for the sale of goods by Harris Performance at Units 4A-B Fountain Drive, Mead Lane, Hertford, Herts, UK a unit of Eicher Motors Limited a company registered under the Companies Act, 1956 with Corporate Identity Number L34102DL1982PLC129877, having its registered office at 3rd Floor – Select Citywalk, A-3 District Centre, Saket, New Delhi- 110 017, India.
- Definitions and Interpretation
- In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
|“Business Day”||means, any day other than a Saturday, Sunday or bank holiday;|
|“Calendar Day”||means any day of the year;|
|means the contract for the purchase and sale of Goods or Services, as explained in Clause 2;
means a document executed by both the Parties, documenting the description of any changes required at your end in relation to the bespoke Order placed.
|means the goods which are to be supplied by Us to you as specified in your Order (and confirmed in Our Order Acceptance);
means the services provided by Us to you as specified in your Order (and confirmed in our Order Confirmation)
|“Month”||means a calendar month;|
|“Price”||means the price payable for the Goods or Services;|
|“Special Price”||means a special offer price payable for Goods which We may offer from time to time;|
|“Order”||means your order for the Goods or Services;|
|“Order Confirmation”||means Our acceptance and confirmation of your Order as described in Clause 2;|
|“Regulation”||Any rules, regulations, stipulations prescribed by the government or any authority in relation with specifications, features or conditions governing motor vehicles.|
|“We/Us/Our”||means Harris Performance|
- Each reference in these Terms and Conditions to “writing” and any similar expression include electronic communications whether sent by e-mail, [text message,] fax or other means.
- The Contract
- These Terms and Conditions govern the sale of Goods or Services by Us and will form the basis of the Contract between Us and you. Before submitting your Order, please ensure that you have read these Terms and Conditions carefully. If you are unsure about any part of these Terms and Conditions, please contact Us for clarification.
- Nothing provided by Us including, but not limited to, sales and marketing literature, price lists and other documents constitutes a contractual offer capable of acceptance. Your Order constitutes a contractual offer that We may, at our discretion, accept.
- A legally binding contract between Us and you will be created upon our acceptance of your Order, indicated by our Order Confirmation. Order Confirmations will be provided in writing.
- Description and Specification of Goods or Services
- We have made every reasonable effort to ensure that the Goods or Services conform to illustrations, photographs and descriptions provided in Our sales and marketing literature and descriptions provided by Our salespeople. We cannot, however, guarantee that all illustrations and/or photographs or descriptions will be precisely accurate due to discrepancies that may arise during the printing process and/or differences in the colour reproduction of electronic displays.
- If you receive any Goods that do not conform to illustrations, photographs or descriptions under sub-Clause 3.1 you may return those Goods to Us as provided in Clause 7.
- If We find, or are made aware of, any typographical, clerical or other accidental errors or omissions in any sales and marketing literature, price lists or any other documents We will make every reasonable effort to correct such errors or omissions as soon as is reasonably possible. If, as a result of any such error or omission, you have received the wrong Goods, you may return those Goods to Us as provided in Clause 7. If, as a result of any such error or omission, you have paid too much, We will refund the excess paid for the Goods.
- We reserve the right to make any chances in the specification of the Goods or Services that may be required to conform to any applicable safety or other legal or regulatory requirements without notice.
- Bespoke Goods are available from Us. If you Order bespoke Goods from Us, We will produce and/or alter those Goods to your written specifications and requirements.
- When placing an Order for bespoke Goods, please ensure that all information that you provide to Us is correct, accurate and complete. We cannot accept the return of any bespoke Goods if the return is due to incorrect information provided by you. Please note that this does not affect your legal rights (including but not limited to those described in these terms and conditions).
- All Orders for Goods or Services made by you will be subject to these Terms and Conditions.
- You may change your Order at any time before we dispatch the Goods by contacting Us. However the labour charges for the services rendered shall be payable by You. This does not apply to bespoke Goods or Services. We will only accept changes to Orders for bespoke Goods or Services, if We are reasonably able to accommodate your request without additional work. We shall not proceed with any changes to the bespoke Goods or Services until a formal Change Order has been signed by both parties detailing the time and costs adjustments as a result of the change. Requests to change Orders need to be made in writing.
- You may cancel your Order at any time before We dispatch the Goods by contacting Us. If you have already paid for the Goods under Clause 5, the payment will be refunded to you within 21 days. This does not apply to bespoke Goods. We will only accept an Order cancellation for bespoke Goods if We have not yet begun making or altering the Goods. Any request for cancellation of any Order must be confirmed in writing to Us.
- We may cancel your Order at any time before We dispatch the Goods in the following circumstances:
- The Goods are no longer in stock and We are unable to re-stock (if, for example, the Goods are discontinued); or
- An event outside of Our control continues for more than three (3) calendar months (please see Clause 12 for events outside of Our control).
- If We cancel your Order under sub-Clause 4.4 and you have already paid for the Goods under Clause 5, the payment will be refunded to you within 21 days. If We cancel your Order, the cancellation will be confirmed by Us in writing.
- You may cancel the Services ordered at any time, before the ordered Services have been concluded, however the labour charges for the services rendered shall be payable by You. If you request that your Order be cancelled, you must confirm this cancellation in writing.
- Price and Payment
- The Price of the Goods or Services will be that shown on Our website in force at the time of your Order. If the Price shown in your Order differs from Our current Price We will inform you upon receipt of your Order.
- If We quote a Special Price which is different to the Price shown in Our current website, the Special Price will be valid for 21 days or, if the Special Price is part of an advertised special offer, for the period shown in the advertisement. Orders placed during this period will be accepted at the Special Price even if We do not accept the Order until after the period has expired.
- Our Prices may change at any time but these changes will not affect any Orders that We have already accepted.
- We have made every reasonable effort to ensure that our Prices, as shown in Our current website are correct. Prices will be checked when We process your Order. If the actual Price of the Goods is lower than that stated in your Order, you will be charged the lower Price (unless the lower price was an obvious mistake that you could have reasonably recognised). If the actual Price of the Goods is higher than that stated in your Order, We will contact you to inform you and ask you how you wish to proceed.
- All Prices displayed exclude VAT, which will be calculated where applicable. If the rate of VAT changes between the date of your Order and the date of your payment, We will adjust the rate of VAT that you must pay. Changes in VAT will not affect any Prices where We have already received payment in full from you.
- Our Prices exclude the cost of delivery. Delivery costs will be added on to the final sum due.
- All payments for Goods or Services must be made in advance before We can dispatch the Goods to you or perform Services.
- We accept the following methods of payment:
- Bank transfer;
- Credit Card;
- Debit card;
- Cheque drawn on UK bank.
- Credit and/or debit cards will not be charged until We dispatch the Goods or perform Services to you.
- If you do not make payment to us by the due date as shown in/on the invoice We may charge you interest on the overdue sum at the rate of 3% per annum above the base lending rate of National Westminster Bank PLC from time to time. Interest will accrue on a daily basis from the due date for payment until the actual date of payment of the overdue sum, whether before or after judgment. You must pay any interest due when paying an overdue sum.
- The provisions of sub-Clause 5.10 will not apply if you have promptly contacted Us to dispute an invoice in good faith. No interest will accrue while such a dispute is on-going.
- Please note that delivery is possible World-Wide.
- When we send you an Order Confirmation, We will provide an estimated delivery date and cost quotation. Please note that estimated delivery dates are estimates only and may vary according to the availability of Goods, complexity of the Service required, your location, circumstances beyond our control etc.
- If you indicate in your Order that you wish to collect the Goods from us in person or to instruct a third party to collect on your behalf, you may do so after receiving confirmation from us that the Goods are available. Collection will be by mutual consent during our published business hours. Delivery will be deemed to have taken place when the Goods have been delivered to the delivery address indicated in your Order or, if you are collecting the Goods from Us yourself, when you have collected the Goods.
- If for any reason We are unable to deliver the Goods at your chosen delivery address, We will leave a note informing you that the Goods have been returned to Our premises, requesting that you contact Us to arrange re-delivery.
- In case the concluded Order is not collected on agreed timeframe or the delivery could not be concluded due to your non-availability or wrong address provided then a delivery retention charge shall be charged for delay on such deliveries.
- The responsibility (sometimes referred to as the “risk”) for the Goods remains with Us until delivery is complete as defined in sub-Clause 6.4 at which point it will pass to you.
- You own the Goods once We have received payment in full for them.
- Please note that delivery to some areas may require more time.
- Returning Incorrect Goods
- If you receive Goods that are incorrect, caused by a mistake made by Us in production, alteration, delivery or by Our incorrect description or information (see sub-Clauses 3.2 and 3.3), you have the right to return them in exchange for a refund or a replacement, subject to the provisions of this Clause 7. This Clause 7 does not apply to Goods that you are merely not satisfied with or to Goods that are faulty. For Goods that you are dissatisfied with or faulty Goods, please see Clauses 8 or 9 respectively.
- Bespoke goods which are incorrect as a result of incorrect information that you have supplied to Us cannot be returned, as set out in sub-Clause 3.6.
- If you wish to return Goods to Us under this Clause 7 you must do so within a reasonable time of taking delivery (or collecting them from Us).
- All Goods must be returned to Us under this Clause 7 in their original condition accompanied by proof of purchase.
- You may return Goods to Us in person during Our business hours as published, or you may return them by post or another suitable delivery service of your choice. For Goods returned under this Clause 7 We will reimburse you for any reasonable postage or shipping costs.
- You may request that We collect the Goods from you. Please ensure that the Goods are ready for collection at the agreed time and location. We are solely responsible for the cost of collecting the Goods under this Clause 7.
- Refunds will be issued to you immediately if you return Goods to Us in person or within 7(seven)days of our receipt of the Goods if you return Goods to Us by post or similar delivery service or if We collect the Goods from you. Replacements will be supplied immediately, with the proviso that they are a stock item, non stock items will be supplied as and when available.
- Returning Goods If You Change Your Mind
- If you are not satisfied with any (non-bespoke) Goods purchased from Us you have the right to return them in exchange for a refund or a replacement, subject to the provisions of this Clause 8. This Clause 8 does not apply to Goods that are faulty. For incorrect faulty Goods please Clauses 7 or 9 respectively.
- This Clause 8 does not apply to bespoke Goods nor Goods which have been specifically sourced and purchased on your behalf by Us. Goods which We have produced or altered to order for you cannot be returned if you change your mind.
- If you wish to return Goods to Us under this Clause 8 you must do so within 28 days of taking delivery (or collecting them from Us), telling Us why you wish to return the Goods.
- All Goods must be returned to Us under this Clause 8 in their original condition, in their original, un-opened packaging, accompanied by proof of purchase.
- You may return Goods to Us in person during Our published business hours or you may return them by post or another suitable delivery service of your choice. You are solely responsible for the cost of returning Goods to Us under this Clause 8.
- You may request that We collect the Goods from you. Please ensure that the Goods are ready for collection at the agreed time and location. We may charge you for collecting Goods under this Clause 8.
- Refunds will be issued to you immediately if you return Goods to Us in person or within 7(seven) days of Our receipt of the Goods if you return Goods to Us by post or similar delivery service or if We collect the Goods from you.Replacements will be supplied immediately, with the proviso that they are a stock item, non stock items will be supplied as and when available.
- Returning Damaged or Faulty Goods
- If you receive Goods that are damaged or faulty you have the right to return them in exchange for a refund, replacement or repair, subject to the provisions of this Clause 9. This Clause 9 does not apply to Goods that are incorrect or Goods that you wish to return because you have changed your mind. Please refer to Clauses 7 or 8 above for incorrect Goods or returns if you have changed your mind.
- If you wish to return Goods to Us under this Clause 9 please do so as soon as reasonably possible after discovering the damage or fault, and in any event within 28 (twenty-eight) days of purchase. Please contact Us to inform Us of the fault and to arrange the return and your refund, replacement or repair.
- This Clause 9 only applies to Goods that are damaged or faulty when you receive them. Faults or damage caused by normal wear and tear or improper treatment does not entitle you to return Goods under this Clause 9. We may require you to prove that the Goods in question were faulty if you return them to Us under this Clause 9 more than six (6) months after the delivery date.
- This Clause 9 does not apply if you purchased the Goods having been told by Us of the particular damage or fault (If, for example, the Goods were sold as ‘seconds’, or at a discounted rate).
- You may return Goods to us in person during Our business hours as published or you may return them by post or another suitable delivery service of your choice. For Goods returned under this Clause 9 We will reimburse you for any reasonable postage or shipping costs.
- You may request that We collect the Goods from you. Please ensure that the Goods are ready for collection at the agreed time and location. We are solely responsible for the cost of collecting the Goods under this Clause 9.
- Refunds or replacements will be issued to you immediately if you return Goods to Us in person or within 28 days of receipt of the Goods if you return Goods to Us by post or similar delivery service or if We collect the Goods from you.
- If Goods are to be repaired We will give you a repair estimate within 7 days of your returning the Goods to Us in person or of Our receipt of the Goods if you return Goods to Us by post or similar delivery service or if We collect the Goods from you.
Warranty for Goods
- We warrant that any Goods that We have produced, customised or altered (including bespoke Goods), shall be free from defects in material and workmanship for a period one (1) year from the date of delivery, the Goods (“the Warranty period”). This warranty is subject to the exceptions listed in sub-Clause 10.2.
- Our warranty does not apply to any defects in the Goods caused by:
- Normal wear and tear;
- Deliberate damage and/or misuse of the Goods;
- Accidental damage;
- Failure to use the Goods in accordance with their instructions; or
- The alteration or repair of the Goods by you or any third party that is not authorised by Us.
- If, during the Warranty Period, any of the Goods is found to be not according to the above express warranty, then You shall notify Us within a reasonable time after its discovery and shall provide written particulars of the non-conformity and all information and assistance necessary to enable Us to verify the nature and cause of the non-conformity and carry out the warranty obligations hereunder. Subject to the foregoing the defective Goods shall be repaired or replaced, at Our option, free of charge. The repaired/replacement item shall be warranted by Us for the remainder of the original Warranty Period. This warranty will not apply if the Goods has been added to, altered, abused, misused or tampered as per clause 10.2 above.
- Except for the above-described limited express warranty, We make no other warranties, express or implied, including any warranty of merchantability or fitness for a particular purpose. Our obligation and Your sole remedy under this Clause is, at Our option the repair or replacement, correction, of any equipment or part thereof.
- Our warranty exists in addition to your legal rights as a consumer (that the Goods match Our description, that they are of satisfactory quality and that they are fit for purpose). More information on your rights as a consumer can be obtained from your local Citizens Advice Bureau or from the Office of Fair Trading.
For Goods that We have not produced, customised or altered the Goods may be provided with a manufacturer’s warranty. For further details and terms please refer to the manufacturer’s guarantee documentation supplied with the Goods.
- The manufacturer’s warranty exists in addition to your legal rights as a consumer (that the Goods match Our description, that they are of satisfactory quality and that they are fit for purpose). More information on your rights as a consumer can be obtained from your local Citizens Advice Bureau or from the Office of Fair Trading.
Warranty for Services
- We warrant the Services will be performed with the ordinary skill and care which would be exercised by those who render these types of service. The Warranty for the Services will be valid for a period of one (1) year from the date of provision of Services (“Warranty period”). In the event of a breach of this warranty, our sole liability for such breach shall be to re-perform the relevant services provided always that We shall not be liable for such breach unless written notice is provided within three (3) months of the performance of the defective service. All services corrected or re-performed shall be warranted only for the unexpired portion of the original Warranty Period.
- Except for the above-described limited express warranty, We make no other warranties, express or implied, including any warranty of merchantability or fitness for a particular purpose.
- Our obligations
- We will be responsible for any foreseeable loss or damage that you may suffer as a result of Our gross negligence in providing our Goods or Services. Loss or damage is foreseeable if it is an obvious consequence of Our gross negligence. We will not be responsible for any loss or damage that is not foreseeable or any special, incidental, punitive, exemplary, indirect or consequential damages howsoever arising and even if You had been advised of the possibility of such damages.
- Notwithstanding any other provision contained herein our liability under this Agreement and Order for any damages arising out of or in any way related to this agreement (whether arising under tort, negligence, contract, warranty, or any other cause or combination of causes) shall in no event exceed the specific price of the value of the Order giving rise to the liability.
- We only supply Goods for domestic and private use. We make no warranty or representation that the Goods are fit for commercial, business or industrial use of any kind (including resale). By making your Order, you agree that you will not use the Goods for such commercial, business or industrial use . We will not be liable to you for any losses that you may suffer in case the Goods or Services provided are used for commercial, business or industrial use.
- Nothing in these Terms and Conditions seeks to exclude Our liability for death or personal injury caused to you by Our gross negligence ; or for fraud or fraudulent misrepresentation. However, our Goods or Services shall be used in accordance with the applicable safety instructions. Thus We shall not be held liable in case of losses (including death or personal injury) that you may suffer due to non-compliance with the safety instructions.
- Furthermore, nothing in these Terms and Conditions seeks to exclude or limit Our liability for the following with respect to your rights as a consumer:
- Breach of your right to title and quiet possession as implied by section 12 of the Sale of Goods Act 1979;
- Breach of terms relating to description, satisfactory quality, fitness for purpose and samples as implied by sections 13, 14 and 15 of the Sale of Goods Act 1979;
- Our liability relating to defective products as set out in the Consumer Protection Act 1987.
- We will try to provide you as much advance notice as reasonably practicable, but We may occasionally:
(a) suspend a Service in an event of emergency;
(b) for operational reasons, change the technical specification of the Service, provided that any such change does not materially decrease or impair performance of the Service; or
(c) provide an alternative, equivalent service, where it becomes necessary to do so
11.7 It shall be solely your responsibility to determine if performance of Services by us will cause a vehicle to become non-compliant with any Regulation. In performing an Order, we assume no responsibility or liability if a vehicle is rendered non compliant with Regulations. You shall fully indemnify us against all costs, damages, penalties and liabilities arising from such instances.
- Events Outside of Our Control (Force Majeure)
- We will not be liable for any failure or delay in performing Our obligations where that failure or delay results from any cause that is beyond Our reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism, acts of war, governmental action, epidemic or other natural disaster, or any other event that is beyond Our control.
- If any event described under this Clause 12 occurs that is likely to adversely affect Our performance of any of Our obligations under these Terms and Conditions:
- We will inform you as soon as is reasonably possible;
- Our obligations under these Terms and Conditions will be suspended and any time limits that We are bound by will be extended accordingly;
- We will inform you when the event outside of Our control is over and provide details of any new dates, times or availability of Goods as necessary;
- If the event outside of Our control continues for more than ninety (90) days We reserve the right to cancel the Contract and inform you of the cancellation. Any refunds due to you as a result of that cancellation will be paid to you as soon as is reasonably possible;
- If an event outside of Our control occurs and you wish to cancel the Contract, you may do so in accordance with your right to cancel under sub-Clause 4.4 above.
- Communication and Contact Details
- If you wish to contact Us with questions or complaints, you may contact Us by telephone at 00(44) 01992 532 500 by email at firstname.lastname@example.org
- In certain circumstances you must contact Us in writing (when cancelling an Order, for example). When contacting Us in writing you may use the following methods:
- Contact Us by email at email@example.com; or
- Contact Us by pre-paid post at address 4, Fountain Drive, Mead Lane,Hertford,Hertfordshire,SG13 7UB, UK.
- How We Use Your Personal Information (Data Protection)
- All personal information that We may collect (including, but not limited to, your name and address) will be collected, used and held in accordance with the provisions of the Data Protection Act 1998 and your rights under that Act.
- We may use your personal information to:
- Provide Our Goods and services to you;
- Process your payment for the Goods; and
- Inform you of new products and services available from Us. You may request that we stop sending you this information at any time.
- In certain circumstances (if, for example, you wish to purchase Goods on credit), and with your consent, We may pass your personal information on to credit reference agencies. These agencies are also bound by the Data Protection Act 1998 and should use and hold your personal information accordingly.
- We will not pass on your personal information to any other third parties without first obtaining your express permission.
- Other Important Terms
- We may transfer (assign) Our obligations and rights under these Terms and Conditions (and under the Contract, as applicable) to a third party (this may happen, for example, if We sell Our business). If this occurs you will be informed by Us in writing. Your rights under these Terms and Conditions will not be affected and Our obligations under these Terms will be transferred to the third party who will remain bound by them.
- You may transfer (assign) the benefit of the warranty under Clause 10 to any person who purchases the Goods from you after you have completed purchasing the Goods from Us.
- You may not transfer (assign) your other obligations and rights under these Terms and Conditions (and under the Contract, as applicable) without Our express written permission.
- The Contract is between you and Us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions. This is subject to sub-Clause 15.2 and any purchaser to whom the warranty has been transferred under that sub-Clause will be entitled to enforce the warranty.
- If any of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.
- No failure or delay by Us in exercising any of Our rights under these Terms and Conditions means that We have waived that right, and no waiver by Us of a breach of any provision of these Terms and Conditions means that We will waive any subsequent breach of the same or any other provision.
- This Agreement supersedes all prior oral or written understandings and/or representations between the Parties (unless specifically incorporated into this Agreement) and constitutes the entire agreement with respect to its subject matter. Each Party acknowledges that in entering into this Agreement that it has not relied on any representation, warranty, collateral contract or other assurance other than those set out in this Agreement, and waives all rights and remedies which, but for this clause might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.
- Governing Law and Jurisdiction
- These Terms and Conditions (and the Contract) (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
Any dispute, controversy, proceedings or claim between Us and you relating to these Terms and Conditions (or the Contract) (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the non-exclusive jurisdiction of the courts of England and Wales.