Terms & Conditions - HY Trailer
Top

TERMS AND CONDITIONS OF SERVICE – SCHEDULE 1

 

1. Interpretation

 1.2 Definitions:

“Business Day” a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Commencement Date” has the meaning as set out in 2.1

“Conditions” these terms and conditions set out in clause 1 to clause 12 (inclusive).

“Contract” the contract between Bespoke Vans Co Ltd and the Customer for the sale and purchase of the Food Conveyance in accordance with the Contract Details, the Schedules and these Conditions.

“Delivery Location” has the meaning as set out in the Contract Details.

“Force Majeure Event” means any circumstance not in a party’s reasonable control including:

  1. a) Acts of God: flood, drought, earthquake or other natural disasters.
  2. b) Epidemic or pandemic.
  3. c) Terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations.
  4. d) Nuclear, chemical or biological contamination, or sonic boom.
  5. e) Any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition.
  6. f) Collapse of buildings, fire, explosion or accident.
  7. g) Any labour or trade dispute, strikes, industrial action or lockouts.
  8. h) (Without prejudice to clause 3.2) non‐performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause).
  9. i) Interruption or failure of utility service.

“Food Conveyance” has the meaning as set out in the Contract Details.

“Order” has the meaning as set out in clause 2.1

“Price” has the meaning as set out in the Contract Details.

“Specification” has the meaning as set out in the Contract Details.

“Third Party Goods” has the meaning as set out in clause 3.2.1

1.2       Interpretation

1.3       Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.4       A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.5       The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the Schedules.

1.6       A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.7       A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006. For the purposes of determining whether a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be construed so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.

1.8       Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

1.9       Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.10     This agreement shall be binding on, and ensure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.

1.11     Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision is a reference to it as it is in force as at the date of this agreement.

1.12     Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made as at the date of this agreement under that legislation or legislative provisions.

1.13     A reference to writing or written includes email but not fax.

1.14     Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.15     A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.

1.16     References to Schedules are to Schedule of this Contract, reference to clauses is to the clauses of these Conditions agreement and references to paragraphs are to paragraphs of the Contract Details.

1.17     Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Commencement

2.1       The Customer may notify Bespoke Vans Co Ltd., that it wishes to purchase the Food Conveyance in writing (“Order”) within 14 days of the day the Contract was issued to it (Bespoke Van Co Ltd may extend such period at its sole discretion).

2.2       On or prior to placing the Order, the Customer shall pay the Deposit in accordance with clause 9.3

2.3       This Contract shall commence on the later of the events specified in clause 2.1 and clause 2.2 taking place (“Commencement Date”).

3. Orders

3.1       Bespoke Van Co Ltd shall inform the Customer of the estimated delivery date for the Food Conveyance (“ETA”) as soon as reasonably practical after the Commencement Date.

3.2       The Customer accepts and agrees that:

3.2.1 The ETA depends on the availability of vehicles, machinery, equipment and goods supplied by third parties (“Third Party Goods”) and Bespoke Vans Co Ltd., is unable to guarantee the timely provision of Third-Party Goods to it.

3.2.2 Bespoke Vans Co Ltd is unable to guarantee the availability of Third-Party Goods.

3.2.3 Time is not of the essence in respect of Bespoke Vans Co Ltd., obligations under this agreement.

3.3       The Customer is responsible for ensuring that the Order and Specification are complete and accurate. The Customer shall give Bespoke Vans Co Ltd., all necessary information that Bespoke Vans Co Ltd reasonably requires in order to fulfil the Order.

3.4       The Customer accepts and agrees that Bespoke Vans Co Ltd will have to place orders for Third Party Goods in order to produce the Food Conveyance and that the Customer:

3.4.1 Is not permitted to cancel the Order (except pursuant to clause 3.5); or:

3.4.2 Amend the Order and the Customer will not, under any circumstances, receive a refund or reduction of any part of (or all of) the Price.

3.5       Without prejudice to clause 4.3, in the event that Third Party Goods are no longer reasonably available, or available on reasonable terms, Bespoke Vans Co Ltd may make at its sole discretion:

3.5.1 Reasonable and proportionate amendments to the Specification.

3.5.2 Reasonable and proportionate amendments to the Price.

4. The Food Conveyance

4.1       The Food Conveyance shall materially conform to the Specification (as amended in accordance with this agreement).

4.2       The Customer shall indemnify Bespoke Vans Co Ltd against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and other reasonable professional costs and expenses) suffered or incurred by Bespoke Van Ltd in connection with any claim made against Bespoke Vans Co Ltd for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with any information, materials, drawings or specifications given by the Customer (or on its behalf) to Bespoke Vans Co Ltd in connection with the Order or the Specification (or Bespoke Vans Co Ltd preparation of the same).

4.3       Without prejudice to clause 3.5, Bespoke Vans Co Ltd reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

5. Delivery

5.1       The Customer shall collect the Food Conveyance from the Delivery Location within three Business Days of Bespoke Vans Co Ltd notifying the Customer that the Food Conveyance is ready for collection (whether the Customer collects the Food Conveyance itself, an agent collects the Food Conveyance on the Customer’s behalf or in any other case).

5.2       Delivery is completed on the making available of the Food Conveyance at the Delivery Location in accordance with this, clause 5.

5.3       Delays in the delivery of the Food Conveyance shall not entitle the Customer to:

5.3.1 Refuse to take delivery of the Food Conveyance.

5.3.2 Terminate this agreement; and the Supplier shall only be responsible for any failure or delay in delivering the Food Conveyance to the extent it has failed to comply with its obligations under this agreement.

5.4       If the Customer or its agent (as appropriate) fails to collect the Food Conveyance from the Delivery Location within three Business Days of Bespoke Vans Co Ltd notifying the Customer that the Food Conveyance is ready for collection, then, except where that failure or delay is caused by Bespoke Vans Co Ltd failure to comply with its obligations under this agreement:

5.4.1 Delivery of the Food Conveyance shall be deemed to have been completed at 9.00 AM on the third Business Day following the day on which Bespoke Vans Co Ltd notified the Customer that the Food Conveyance was ready for collection.

5.4.2 Bespoke Van Co Ltd shall store the Food Conveyance until collection takes place and charge the Customer for all related costs and expenses (including any insurance).

6. Acceptance

6.1       The Customer agrees and accepts that it is obliged to inspect the Food Conveyance on the day on which the Food Conveyance is collected (whether such inspection is in person or by electronic means). The Customer will be deemed to accept the Food Conveyance on the earlier of:

6.1.1 It or its agent moving the Food Conveyance (whether or not under its own power and whether or not such movement results in the Food Conveyance leaving the Delivery Location).

6.1.2 5.00 PM on the third Business Day after Bespoke Vans Co Ltd notified the Customer that the Food Conveyance was ready for collection.

7. Title and Risk

7.1       Risk in the Food Conveyance shall pass to the Customer on delivery in accordance with clause 5.2 or deemed delivery in accordance with clause 5.4.1 (as appropriate).

7.2       Title to the Food Conveyance shall not pass to the Customer until Bespoke Vans Co Ltd receives full payment of:

7.2.1 The Price; and:

7.2.2 All other sums that are due to Bespoke Vans Co Ltd from the Customer in connection with the Food Conveyance in full, in cleared funds, at which point the title to the Food Conveyance shall pass at the time of payment of the last such sum.

7.3       Bespoke Vans Co Ltd may recover a Food Conveyance to which title has not passed to the Customer and the Customer irrevocably licenses Bespoke Vans Co Ltd its officers, employees and agents to enter any premises of the Customer (including with vehicles) to recover such Food Conveyance.

8. Quality and fitness for purpose

8.1       In relation to the Food Conveyance:

8.1.1 The kitchen appliances installed in the Food Conveyance (including, but not limited to fridges, freezers, sinks, taps, ovens (of any type including conventional, microwave and combination), hobs, grills, hot drinks machines); and:

8.1.2 The vehicle (including, without limitation, the chassis, cab, engine, all electrical and mechanical components, fittings, interior and exterior) excepting only the structures added and modifications made by Bespoke Vans Co Ltd shall only subject to their respective manufacturer’s warranties (if any) and Bespoke Vans Co Ltd shall not give any representation, assurance or warranty in relation to any of them.

8.2       Subject to clause 8.1, Bespoke Vans Co Ltd warrants that, for a period of 12 months from the date of delivery (warranty period), the Food Conveyance shall:

8.2.1 Conform in all material respects with the Specification.

8.2.2 Be free from material defects in design, material and workmanship.

8.2.3 Be fit for any purpose held out in the Specification.

8.3       Subject to clause 8.4, if:

8.3.1 The Customer gives notice in writing to Bespoke Vans Co Ltd within 15 Business Days of discovery that the Food Conveyance does not comply with the warranties as set out in clause 8.2.

8.3.2 Bespoke Vans Co Ltd is given a reasonable opportunity of examining the Food Conveyance; and:

8.3.3 The Customer (if asked to do so by Bespoke Vans Co Ltd) returns such the Food Conveyance to Bespoke Vans Co Ltd place of business at the Customer’s cost, Bespoke Vans Co Ltd shall repair any element of the Food Conveyance which is subject to the warranty given in clause 8.2 which is found to be defective.

8.4       Bespoke Vans Co Ltd shall not be liable for the Food Conveyance’s failure to comply with the warranties set out in clause 8.2 if:

8.4.1 The Customer makes any further use of the relevant element of the Food Conveyance after giving notice of defects in accordance with clause 8.3.

8.4.2 The defect arises because the Customer failed to follow Bespoke Vans Co Ltd oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Food Conveyance or (if there are none) any good trade practice regarding the same.

8.4.3 The defect arises as a result of Bespoke Vans Co Ltd following any drawing, design supplied by the Customer.

8.4.4 The Customer alters or repairs such the Food Conveyance without the written consent of Bespoke Vans Co Ltd.

8.4.5 The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or:

8.4.6 The Food Conveyance differs from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

8.5       Bespoke Vans Co Ltd only liability to the Customer if the Food Conveyance fails to comply with the warranties set out in clause 8.2 is as set out in this clause 8.

8.6       The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

8.7       The terms of the Contract shall apply to any repaired or replacement the Food Conveyance supplied by Bespoke Vans Co Ltd.

9. Price and payment

9.1       The Customer shall pay for the Food Conveyance in accordance with this clause 9.

9.2       The Price excludes:

9.2.1 The costs of insuring and transporting the Food Conveyance (which shall be the Customer’s responsibility); and:

9.2.2 Amounts in respect of VAT, which the Customer shall additionally be liable to pay to Bespoke Vans Co Ltd at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.

9.3       The Customer shall pay the 40% Deposit plus VAT at the prevailing rate (if applicable) in full in cleared funds made to the bank account nominated in writing by Bespoke Vans Co Ltd on or prior to placing the Order in accordance with clause 2.1 (following which Bespoke Vans Co Ltd shall give the Customer a receipt in the usual way). For the avoidance of doubt, no part of the Deposit (or any other element of the Price) shall be refundable in part or in full.

9.4       Bespoke Van Co Ltd shall invoice the Customer for the balance of the Price plus VAT at the prevailing rate (if applicable) in the following proportions and in advance of the following events for payment (in full in cleared funds made to the bank account nominated in writing by Bespoke Vans Co Ltd) or on prior to each of the same:

9.4.1 The Second Payment

9.4.2 The Third Payment on Bespoke Vans Co Ltd notification in accordance with clause 5.

9.4.3 Bespoke Van Co Ltd shall ensure that the invoices include an invoice number and Bespoke Vans Co Ltd VAT registration number.

9.5       If the Customer fails to make any payment due to Bespoke Vans under the Contract by the due date for payment, then, without limiting Bespoke Vans Co Ltd remedies under clause 9.3.

9.5.1 The Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

9.5.2 Bespoke Van Co Ltd may suspend all works on and/or delivery of the Food Conveyance until payment has been made in full.

9.6       All amounts due under this agreement from the Customer to Bespoke Vans Co Ltd shall be paid in full without any set‐off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Bespoke Van Co Ltd may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by Bespoke Vans Co Ltd to the Customer.

9.7       Time is of the essence in relation to the Customer’s obligations under this clause 9.

10. Limitation of liability

10.1     Bespoke Vans Co. has obtained insurance cover in respect of certain aspects its own legal liability for individual claims not exceeding £TBA per claim. The limits and exclusions in this clause reflect the insurance cover Bespoke Vans Co Ltd has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.

10.2     Nothing in this Contract shall limit or exclude Bespoke Vans Co Ltd liability for:

10.2.1 Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).

10.2.2 Fraud or fraudulent misrepresentation.

10.2.3 Breach of the terms implied by section 12 of the Sale of Goods Act 1979.

10.2.4 Defective products under the Consumer Protection Act 1987; or:

10.2.5 Any matter in respect of which it would be unlawful for Bespoke Vans Co Ltd to exclude or restrict liability.

10.3     Subject to clause 10.2:

10.3.1 Bespoke Van Co Ltd shall not be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any loss of profits, loss of sales or business, loss of agreements or contract, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill, or indirect or consequential loss arising under or in connection with the Contract; and:

10.3.2 Bespoke Van Co Ltd total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the greater of £40,000 and 50% of the Price paid by the Customer under the Contract.

10.4     Nothing in this clause 10 shall limit the Customer’s payment obligations under this agreement.

11. Termination

11.1     Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other party if:

11.1.1 The other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so.

11.1.2 The other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2).

11.1.3 The other party begins negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into any compromise or arrangement with any of its creditors.

11.1.4 The other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986.

11.1.5 A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership).

11.1.6 An application is made to court, or an order is made, for the appointment of an administrator or a notice of intention to appoint an administrator is given or an administrator is appointed over the other party.

11.1.7 The holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver.

11.1.8 A person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party.

11.1.9 A creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days.

11.1.10 Any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.2 to clause 11.1.9 inclusive.

11.1.11 The other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or:

11.2.11 The other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

11.2     Without limiting its other rights or remedies, Bespoke Vans Co Ltd may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.

11.3     On termination of this agreement for any reason, the Price shall immediately become due and payable in full (notwithstanding clause 9.4).

11.4     Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination.

11.5     Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect including, without limitation:

11.5.1 Clause 4.2.

11.5.2 Clause 10 (Limitation of liability).

11.5.3 Clause 12.3 (Confidentiality).

11.5.4 Clause 12.10 (Governing law); and:

11.5.5 Clause 12.11 (Jurisdiction).

12. General

12.1     Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 2 months, the party not affected may terminate this Contract by giving 21 days’ written notice to the affected party.

12.2     Assignment and other dealings

12.2.1 The Customer shall not assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Bespoke Vans Co Ltd.

12.2.2 Bespoke Vans Co Ltd may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights under this agreement.

12.3     Confidentiality

12.3.1 Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 12.3.2. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

12.3.2 Each party may disclose the other party’s confidential information:

(a) To its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the parties’ rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12.3; and:

(b) As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.

12.4     Entire agreement

12.4.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

12.4.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

12.5     Variation

12.5.1 No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.6     Waiver

12.6.1 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.7     Severance

12.7.1 If any provision or part‐provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part‐provision shall be deemed deleted. Any modification to or deletion of a provision or part‐provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

12.8     Notices

12.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre‐paid, first-class post or other next working day delivery service, commercial courier, email.

12.8.2 A notice or other communication shall be deemed to have been received: if delivered by hand, when left at the address referred in clause 12.8.1 If sent by pre‐paid, first‐class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.

12.8.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

12.9     Third party rights

12.9.1 No one other than a party to this Contract and their Permitted assignees shall have any right to enforce any of its terms.

12.10   Governing law

12.10.1 This Contract and any dispute or claim (including non‐contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.

12.11   Jurisdiction

12.11.1 Each party irrevocably agrees that the courts of England and Wales Shall have exclusive jurisdiction to settle any dispute or claim (including noncontractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.